The owners of land where Wal-Mart wants to build a second store in Lawrence asked a Douglas County judge on Friday to let them proceed with a smaller restaurant that will share the site.

Attorneys for 6Wak Land Investments, the landowner, asked Judge Michael Malone to issue a summary judgment in their favor in one of the five lawsuits pending in the matter.

“The building permit should have been issued last May,” said Mary Jo Shaney, a 6Wak attorney from Kansas City, Mo. “The building permit should be issued, your honor, now.”

But Scott Beeler, an Overland Park attorney representing the city, said the restaurant and the Wal-Mart were both part of the same development plan and shouldn’t be unlinked. City Hall contends Wal-Mart isn’t permitted under the site’s zoning.

“You don’t put a restaurant on the corner without knowing what you’re going to do with the rest of the site,” Beeler said.

Malone didn’t rule on the matter Friday, saying he would issue a decision “as quickly as possible.”

City Hall denied a building permit for the restaurant, which has not been identified, in spring 2003, saying it was too closely linked to the Wal-Mart proposal. Officials maintain Wal-Mart is a department store, which is prohibited under the terms of the site’s zoning. Wal-Mart said it was a “variety store” permitted by the rules.

The city’s Board of Zoning Appeals upheld the denial in October 2003 in a split 3-3 vote, with one member of the seven-person board abstaining. 6Wak, a partnership of Lawrence developers Bill Newsome and Doug Compton, quickly appealed that ruling to District Court.

Shaney said the Board of Zoning Appeals’ split vote showed doubts about the city’s decision to deny the permits.

“There was no consensus,” she said. “the absence of a consensus in this case, I think, indicates the trouble set of circumstances” in the matter.

Beeler said Malone had a narrow question to answer in making a ruling: Was the zoning board’s action lawful and reasonable?

“It was,” Beeler said, “a lawful action.”

Malone wouldn’t give a definitive timeline for his ruling in the matter.

“This,” he said, “is a difficult case.”

City Hall has spent $208,295 on seven different lawsuits related to the Wal-Mart proposal; Malone still has not decided how much the city must pay 6Wak for legal bills from an early round of the case, but that decision could add more than $80,000 to the tab.