Wal-Mart opponents in Roanoke, Virginia have been through one roller coaster of a ride over the past four years.
On March 13, 2007, Sprawl-Busters reported that residents in Roanoke had filed a lawsuit to stop a Wal-Mart supercenter from being built. The group, “Citizens for Smart Growth Roanoke,” charged that Roanoke County had failed to follow their own procedures in approving the Wal-Mart at the end of October, 2006.
The Roanoke County Board of Supervisors rezoned land for the Wal-Mart, and then gave the project a special permit for a 41 acre piece of land. The location of the proposed superstore — less than one mile just south of an existing Wal-Mart on Route 220, was expected to force the existing Wal-Mart discount store to close.
The land is located in an overlay zoning district that places restrictions on building design, landscaping, signs, and lighting. The Clearbrook Village Overlay District was created “to promote future development that is consistent with the current character of Clearbrook.” It discouraged strip malls in favor of smaller merchants. But it also required that any building larger than 50,000 s.f. obtain a special permit.
Holrob, a Tennessee developer, submitted a Wal-Mart supercenter four times greater, at over 200,000 s.f. Residents charged that the special use permit granted therefore violated the intent of the overlay district, which was to limit the size and scenic impact of retail buildings.
On April 28, 2007, residents in Roanoke wrote Sprawl-Busters with the following update:
“The circuit court ruled to dismiss our lawsuit. ALL the traffic now will use the one entrance/exit… Route 220 is dangerous enough now and will only get more dangerous. The area is also slated for I-73, which means more profits for Wal-Mart and more crime for us when the interstate arrives.”
According to the Roanoke Times, Judge Robert Doherty ruled that the county’s decision to allow the construction met the legal standard of being “fairly debatable,” that even if “objective and reasonable persons” had differing opinions about it, the board of supervisors’ decision was reasonable and legal.
The citizens argued that the site plan did not include specifics about plans for the project’s outparcels, which resident’s said were required by county zoning regulations. The judge ruled that the traffic impact studies paid for by the developer were adequate and that the county review was not “arbitrary, capricious, irrational or unreasonable.”
The county said it was “pleased” with the court’s ruling. But Citizens for Smart Growth Roanoke said the special-use permit violates the intent of a special Clearbrook Village Overlay District that the county adopted in 2000.
Residents argued that a super Wal-Mart would not preserve a village character for the neighborhood, and the project should have required a special permit since the store exceeded 50,000 s.f.
But the judge ducked the issue of consistency of the project with the zone it sits in. “It is not the role of the Court to decide whether a Wal-Mart Supercenter should be built on the land in question,” the judge wrote. The court’s job “is to decide whether the Board, as the legislative body, complied with the law when it passed the ordinance that rezoned the land and granted the special-use permit.”
But the court ruling was not the end of the battle. Just over a year later, on May 14, 2008, a Roanoke County official announced that Holrob had cancelled the project.
The county said that Wal-Mart instead had renewed a lease it had for its discount store a mile north of Route 220. The reason for cancellation was reportedly “general economic conditions” at the time. “Whether they’ll reconsider in the long range, we don’t know,” the county official told the media. The property had already been rezoned and granted the special-use permit to accommodate a large retail center.
Opponents were thrilled with the superstore cancellation. “I’m as elated as they come,” said Pamela Berberich, one of the plaintiffs in the original lawsuit. “Everybody told me that what I was doing was fruitless, but maybe my efforts came to pass after all.”
Berberich’s legal appeal went to circuit court and the state court of appeals. The State Supreme Court refused to hear the case in November of 2007.
Soon after the story broke that the project was cancelled, it was put back on track, and by September, Holrob announced that it had nailed down options on all the necessary parcels and the project was going “full steam ahead.”
The County obliged by declaring that the 2006 special use permit that had been granted was still valid. Opponents charged that the county could have voided the permit because the project was declared dead. But because the developer had spent nearly $3.4 million on the project, it had demonstrated “a clear intent” to use the special permit as required under county law.
This decision by the county could have been appealed, but opponents chose not to, arguing that “the county’s made it clear they want Wal-Mart, they want the tax dollars and that they’re for the developer and not the citizens.”
In May of 2010, the county approved a realignment of a key intersection on Route 220, which opened up access to the proposed Wal-Mart. The traffic plan blocks access to the residential sections of some of the roads near the site.
The new superstore is slated to open by November or December of 2010, but some merchants at the old mall say they have heard the new store will not be open in time for the Christmas season.
Wal-Mart still shows its existing discount store in the Hunting Hills Plaza as open for business — but the site on Route 220 is also now listed for rent by Wal-Mart Realty, which lists the site as “Coming Soon!” Wal-Mart store #1301 is listed as being 119,010 s.f. and occupies 10.4 acres of land. The store was built in 1989.
Other businesses in the Hunting Hills Plaza are upset. “Yeah it kind of worries us a little bit about Wal-Mart leaving here,” Twee Ha of Star Nails told Roanoke.com. “Wal-Mart brings us lots of business, little worried about it, but we think we’re going to be fine.”
Rumors abound that Kohl’s has its eye on the Wal-Mart site, but the store is still listed for sale.
Channel 7 News reported this week that Kohl’s is close to making a deal with the Manhattan-based Centro Properties Group, which owns the store. Hunting Hills has a Home Depot and Lowe’s as big box bookends.
The plaza is abutted by upscale residential homes which sell as high as $600,000 according to Roanoke.com. Kohl’s would not comment on the land deal, but the chain is only opening 30 stores this year. The company said it looks for communities with lots of families with children, and areas that are near existing Kohl’s stores. There are not many retailers, however, that want a 119,000 s.f. space.
If Roanoke finds another tenant for the Wal-Mart building, they will be very lucky indeed. The fact that the site is now listed by Wal-Mart Realty suggests that Wal-Mart still wants to try to market the site, and by so doing put more pressure on a company like Kohl’s to buy out their lease.
The Roanoke case shows opponents of Wal-Mart that having a ‘cap’ in place that requires a special permit is worthless. Here’s a store that is four times larger than the cap which triggered a special permit. The underlying zoning was clearly not in character for a big box store, but when local officials want to make a project happen, they can justify almost any move to make it happen. The courts are not of much use, since they shy away from telling local officials how to interpret their own zoning ordinance.
If the Kohl’s deal falls through for any reason, the county is going to wish it had in place a demolition surety bond, which requires the owner to demolish the store if it sits empty for a certain number of consecutive months, and becomes blighted. It doesn’t take that long for an empty building to deteriorate and become unusable.
In Roanoke, the residents had no option but to sue. The County also wasted taxpayer’s money by hiring their own lawyer to defend the developer’s permit. They should have let the developer, Holrob, bear the financial burden of defending its special permit. Roanoke County residents who sued, ended up paying not only for their lawyer, but for the county’s lawyer as well.
Readers are urged to call after business hours “Butch” Church, the Chairman of the Roanoke County Board of Supervisors, and leave him a message at (540) 772-2005 as follows:
“After 4 years, the county is finally going to get an unnecessary Wal-Mart superstore less than a mile from another Wal-Mart that will close. This is called “leap frog” development, and it’s a form of pernicious sprawl that wastes land and infrastructure.
Wal-Mart could have taken its 119,000 s.f. store at the Hunting Hills Plaza, and turned it into a superstore. That’s called an ‘inbox conversion.’ The retailer has done this elsewhere.
But county officials let Wal-Mart lead growth, and you followed it. The county doesn’t even have a demolition bond in place in case those rumors you hear about Kohl’s don’t come through. It seems like the county has little land use planning, given the details of this case, and the change in character that the county allowed just to move the Wal-Mart less than a mile.
How many more times would you let a Wal-Mart store jump around your county, producing no new jobs or net revenues? This move is one that should never have been allowed, and all you will see increase is traffic and crime.
Next time, make your zoning ordinance stick, and don’t sell out the neighbors for the voodoo economics that Wal-Mart presents.”