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Archive for Thursday, May 12, 2005

Judge sides with city in 6Wak case

Ruling backs denied building permit for restaurant at Sixth, Wakarusa

May 12, 2005

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Lawrence Mayor Boog Highberger can smell victory.

A judge's ruling upholding the city's decision to deny a building permit for a restaurant related to a proposed Wal-Mart in west Lawrence bodes well for an overall legal triumph in the matter, Highberger said.

District Judge Michael Malone's ruling was made public Wednesday.

"If we have prevailed in the restaurant case, I don't think there is any way we're going to lose the actual Wal-Mart case," said Highberger, who is an attorney. "I think it (the ruling) is a pretty obvious sign that we'll prevail on the Wal-Mart case."

Developers involved in the case, though, said the dispute was far from done.

"We have said from the very start that we're going to be adamant and persistent in protecting our property rights," said Bill Newsome, a partner in 6Wak Land Investment, which owns the property and filed suit against the city in the restaurant case. "Nothing has happened to change our position. We're in this till the end."

Wednesday's ruling was the latest turning point in a three-year battle by 6Wak to get permission to build a Wal-Mart store on the northwest corner of Sixth Street and Wakarusa Drive.

Malone essentially agreed with City Hall's argument that it was right to deny the restaurant permit, saying legal wrangling over the proposed Wal-Mart created too much uncertainty for the entire "planned unit development" previously approved by city commissioners.

"The city argues that approval to build the 6,794 square-foot restaurant would dictate the development of the remainder of the 19-acre project," Malone wrote. "In essence, the city's point is that this tail-wagging-the-dog approach is exactly what (planned unit developments) are designed to prevent."

Newsome and his company argued the building met all zoning codes, and a restaurant was clearly approved as part of a larger planned unit development. 6Wak attorneys also argued the city's reasons for denying the permit were so vague the city could deny any building permit it simply didn't like.

Malone technically did not reject the latter argument, but said 6Wak would need to make that argument in a separate legal case, if it chose to pursue the matter.

A Wal-Mart attorney did not return a call seeking comment Wednesday.

The city's attorney, Scott Beeler of the Overland Park firm of Lathrop & Gage, stopped short of saying a victory in the Wal-Mart case was in the city's grasp.

"I would simply say we're awaiting the decision," Beeler said of the pending ruling, a timeline for which hasn't been announced.

Neighbors to the project, who have expressed concerns the project would turn Sixth Street into a traffic mess resembling 23rd Street, said they were pleased but not ready to celebrate yet.

"It seems to be very good news for us," said Alan Cowles, president of the West Lawrence Neighborhood Assn.

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