When you can’t get what you want by regulation, try litigation. That’s the apparent strategy in Duluth, Georgia, where a landowner who stands to make millions of dollars by selling his 27 acre parcel to Wal-Mart for a 176,305 s.f. supercenter, has sued the city over their moratorum on big box stores. Jack Bandy, who owns the parcel, had his friend, the former Governor of Georgia, Roy Barnes, file the suit in Gwinnett Superior Court yesterday, trying to invalidate the moratorium on a technicality. Bandy wants to show that the city did not properly post notices about the meeting according to state law. The complaint charges that “a few vocal residents … began to pressure the mayor and council to stop the Wal-Mart at all costs.” The landowner claims that his land is zoned appropriately for a big box store, and that city officials “assured there was no legal problem.” At the end of July, the city passed a six month moratorium on retail stores larger than 75,000 s.f. The moratorium affected at least three projects in Duluth, including Bandy’s Wal-Mart proposal. “We believe the big box moratorium was illegally passed in violation of the Open Meetings Act,” Governor Barnes told the Atlanta Journal Constitution. “The complaint sets forth the course of action, and the emails we obtained under the Open Records Act clearly shows this was not a matter that was just brought up on the spur of the minute. Since the action was taken without public notice as required under the Open Meetings Act, we believe the moratorium was not properly passed.” The Mayor of Duluth, Shirley Lasseter, told the newspaper, “I think it’s a shame when we lose sight of what is legal and what is not, what is acceptable and what is not — at the expense of our taxpayers. Having not seen the lawsuit yet, I certainly hope that we could come to some amenable conclusion for the betterment of the city of Duluth and all of its residents.” In other words, she’s looking to make a deal somehow with Bandy. The Wal-Mart proposal on Peachtree Industrial Boulevard has been controversial from the start. Several thousand residents signed an online petition sponsored by Smart Growth Gwinnett against the store’s plans. Sprawl-Buster’s reported two days ago that the Duluth Zoning Board of Appeals unanimously agreed that a former city official — an interim planning director — exceeded her authority when she approved changes to the retail giant’s building plans on her own instead of deferring a decision to the board of appeals. Later this month the city will unveil a $50,000 impact study on big box stores. The study included a series of public meetings to hear what the community thought buildings over 75,000 square feet should look like. “From what I’ve seen,” one city official told the newspaper, “it helps minimize the impact a large building creates by buffers or trying to make the building look like several buildings, instead of one large building. It doesn’t eliminate big buildings in the city — it only tries to minimize the impact they create because of their large size.”
The city’s “impact study” looks like it was a waste of $50,000. If the conclusion is that Wal-Mart can make a big store “seem small” by making the facade look like a bunch of smaller stores — this has been going on for years. Wal-Mart has presented such a “smaller” facade under the oxymoron, “village supercenter.” But undernear the skin of the facade, is the same big box footprint, and the same traffic and crime. When the city overturned the decision of the city’s Planning Director, a Wal-Mart official was quoted as saying, “I’m just disappointed. I think it’s a case of politics instead of the law being followed.” So the landowner hires a former Governor to sue the city. Officials in Duluth would be right to wonder just who’s playing politics now. Moratoriums are legal, mainstream zoning devices used to give a community the breathing room it needs to develop a response to large scale retail or other challenging projects. Mayor Lasseter did not help matters any when she told The Constitution she’d “love to have a moratorium but it might be illegal.” According to our story dated October 27th, landowner Bandy is suing the city for $27 million. Now every taxpayer in Duluth will have to pay to defend the city from one landowner’s desire to make a financial killing on his land. None of this would be happening in Duluth if Wal-mart would just respect the wishes of small towns to keep commercial development appropriate in scale. But it may be too much for a big corporation to think about a smaller solution that neighbors could live with. Readers are urged to email Governor Roy Barnes at his law firm, The Barnes Law Group, at [email protected], and tell him, “We are disappointed at your lawsuit against the city of Duluth over a Wal-Mart supercenter. The city has the right to adopt a moratorium, and the landowner should sit down with residents and work out a compromise that shrinks the footprint of the store, instead of pursuing a legal action with your help.”
