Wal-Mart back, with bigger request

Retailer now suing to build 132,100 square-foot store at Sixth and Wakarusa

In today’s poker-crazed world, this would be called a raise.

The stakes got higher Friday in a dispute between Wal-Mart and Lawrence city commissioners as Douglas County District Court Judge Michael Malone agreed to restart a series of lawsuits alleging the city illegally denied a permit to allow the retailer to build a store at Sixth Street and Wakarusa Drive.

“Wal-Mart could not possibly be more disappointed to be back here,” Timothy Sear, an attorney representing Wal-Mart, told Malone. “But we feel we have no choice but to ask that this matter be set for trial at the earliest possible date.”

Malone scheduled a one-week trial to begin April 16.

The restarted lawsuit essentially ups the ante in the dispute. Wal-Mart will be asking to build a significantly larger store than the one city commissioners rejected on a 3-2 vote Tuesday. That store would have been 99,985 square feet. But Wal-Mart has abandoned plans to build that store, which was crafted as part of a legal agreement city commissioners and developers reached in April.

Since that plan was rejected Tuesday, Wal-Mart is now seeking to build a 132,100 square-foot store that it had unsuccessfully sought a building permit for in 2003. It was the rejection of that permit that sparked Wal-Mart’s first lawsuit against the city. That lawsuit is being restarted. It had been put on hold since April, when the two sides agreed to consider the smaller plan.

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Wal-Mart v. Lawrence timeline

Here’s a look at the legal details surrounding the case Wal-Mart and a Lawrence development group have brought against the city.

¢ 2001: City commissioners approve zoning that would allow a 132,000-square-foot store on the northwest corner of Sixth Street and Wakarusa Drive. Commissioners believe the most likely user will be a home improvement store. They place a condition on the zoning that would prohibit a department store on the site.

¢ August 2002: Wal-Mart announces plans to build an approximately 200,000-square-foot store on the site.

¢ October 2002: Neighbors deliver a petition with 400 names to City Hall opposing the project. City commissioners ultimately reject the 200,000-square-foot store proposal and another one that would have reduced the size of the store to 154,000 square feet.

¢ May 2003: Wal-Mart seeks a building permit to build a 132,000-square-foot store under the condition of the zoning approved in 2001. But city leaders refuse, saying Wal-Mart is a department store and thus not allowed. Wal-Mart officials contend it is a variety store. The first lawsuit is filed later that month.

¢ August 2005: Douglas County District Court Judge Michael Malone rules the case should go to trial. He said a key question needed to be resolved. Malone said a reasonable argument could be made that the city’s Board of Zoning Appeals – which upheld the city’s decision to deny the building permit – incorrectly believed that Victor Torres, director of the city’s Neighborhood Resources Department, made certain determinations about the inappropriateness of the proposed store.

But Malone noted that Torres testified under oath that “he could not give a specific reason” why he denied the applications.

Developers have alleged Torres received political pressure to deny the building permit. City attorneys have denied those allegations.

The larger store also is designed differently from the one Wal-Mart sought approval for this week. The larger store was not designed to meet the city’s commercial design guidelines, since the guidelines were not part of the city’s regulations in 2003.

City prepared

Scott Beeler, an attorney representing the city, has said the city is “perfectly prepared” to defend itself in the lawsuits. He made no objection to restarting them.

City Commissioner David Schauner – who, with Commissioners Boog Highberger and Mike Rundle, voted against the most recent plan – said he believed the city had a “strong legal position” and was comfortable with the suit moving forward. But he said he’s not yet convinced it will end up at trial.

“What I think they are trying to do is look like they are playing hardball,” Schauner said. “I would not be surprised to see them come back through some channels to have a plan approved that is different than what we considered Tuesday night.”

Bill Newsome, who, with Lawrence developer Doug Compton leads the group that owns the proposed site, said that’s not the case. He said his group and Wal-Mart already had spent six months and more than $200,000 preparing plans they believed met all the city requirements.

“That plan was denied by three city commissioners, so our only alternative is to move forward through the courts,” Newsome said. “We’re absolutely committed to seeing that through to the end.”

Broken faith

Tensions still were high in the courtroom Friday regarding the City Commission’s rejection of the later plan. Sear, the Wal-Mart attorney, said it was now clear there were three city commissioners “who apparently never intended to vote for any plan.”

But Schauner said that wasn’t true. He said Wal-Mart and the developers were the ones that “broke faith” by bringing back a plan that didn’t adequately deal with traffic concerns nor was designed to meet the city’s commercial design guidelines.

Wal-Mart representatives and Newsome countered that their plan met all requirements and received positive recommendation from the city’s professional planning staff.

“We have no apologies about the plan that was submitted,” Newsome said.

Schauner, though, said he has no apologies for rejecting the plan, nor for the more than $265,000 in legal fees the city has spent on the case thus far.

“The thing I hear is why do we spend money to litigate these things,” Schauner said. “I guess the alternative is to abandon our zoning codes and our building codes and let people do whatever they want.

“We’re trying to protect everybody’s interests and not pander to certain moneyed interests,” he said.

Some neighbors near the site also said they we’re pleased with the city continuing to fight the case, even though it opens the door for the court to approve a larger store for the location.

“I’m proud of the commission,” said Gwen Klingenberg, a neighbor who has led opposition to the proposal. “Our commission cares about growth, but they know it needs to occur correctly. This was just inappropriate for this corner.

“This corner has been the poster child of bad planning, and now they’re trying to do it right.”