A landowner in Duluth, Georgia appears to have finally pulled the legal plug on his dreams for a Wal-Mart supercenter. On May 3, 2008, Sprawl-Busters updated a story from Duluth, where a bitter battle over a Wal-Mart superstore was finally drawing to an end. Wal-Mart abruptly pulled out of the race, after more than a year of wrangling with local residents. On July 1, 2007, Duluth residents sent Sprawl-Busters the following email: “Wal-Mart has proposed a super store in Duluth, Georgia. The proposed site is zoned general commercial (C-2) meaning a retail store is an allowed use within this zoning district. Wal-Mart’s engineering company has applied for several variances and the zoning board of appeals meets on 27 June, 2007 to address these variances. We understand the zoning board of appeals does not have the authority to approve or disapprove Wal-Mart locating here — just on the variances. Development plans have not been submitted, according to the Director of the City Planning and Development Department. We are one of about 10 subdivisions in the immediate area of the possible development.” At the end of July, 2007, 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 the Wal-Mart proposal. On January 24, 2008, Jack Bandy, who owns the parcel Wal-Mart wants, had his friend, the former Governor of Georgia, Roy Barnes, file a lawsuit in Gwinnett Superior Court, trying to invalidate the moratorium. Bandy also took his case to the Duluth Zoning Board of Appeals, trying to get that board to overrule the decision of the city’s Planning Director. Wal-Mart applied for a building permit in August for a 176,000 s.f. store, but was turned down by the city’s Planning Director. She cited Duluth’s six-month moratorium on large-scale buildings. The landowner appealed. But the Duluth ZBA backed its Planning Director, and voted unanimously to deny Wal-Mart’s appeal. “I’m not surprised; I’m disappointed,” a Wal-Mart spokesman told the Atlanta Journal Constitution at the time. After the ZBA vote, the City Attorney announced that the zoning board also was being sued by Bandy, who had two legal actions pending against the city. Bandy’s new suit was filed against the Zoning Board of Appeals and each of its members; the city’s new director of planning; and the city of Duluth. It appealed the rulings the zoning board made in October, 2007, when the ZBA agreed with local residents that the city’s Planning Director had exceeded her legal authority when she approved redesigns to Wal-Mart’s planned Supercenter. Bandy claimed that the ZBA made some errors when it made its decision. The landowner said the residents who appealed to the ZBA did not have legal “standing” to do so — which means they do not meet the legal criteria to file an appeal as injured parties. Bandy also says the rejection of Wal-Mart’s designs were “arbitrary and capricious.” Residents of Duluth and city officials made it very clear that they didn’t want this Wal-Mart, and they passed a moratorium to be able to come up with new zoning rules to better protect local property owners. Instead of respecting that sentiment, and withdrawing, the landowner pulled out the big political guns by hiring a former Governor to plead his case. In January, 2008, under legal pressure, the ZBA changed direction, and voted to grant a series of variances to allow the store to be built on Peachtree Industrial Boulevard. The last remaining hurdle was over what kind of material would be used on the building’s fa??ade. Duluth officials insisted that the new store fit into the “big box ordinance” that the city passed. That ordinance requires large retail buildings to be varied in shape and be made of real brick, stone or glass. The citizen’s group fighting this project, Smart Growth Gwinnett, seemed resigned to accept the new store. Their main pitch seemed to be: fight for the brick. All Wal-Mart had to do was give their store 2 facades made out of real brick. The landowner’s lawyer was the second happiest man in the room. “We’re pleased that they essentially approved everything,” said former Gov. Roy Barnes. But even with a victory, he still kept pushing. “We’ll just have to see what the story is on the brick.” But in May of 2008, Wal-Mart dropped the other brick. The company announced that it was pulling out of the project altogether. The retailer said it was not because of citizen opposition, but because of Wal-Mart’s growth reduction policy revealed at its Annual Shareholders meeting on June 2, 2007. A company spokesman told the Atlanta Journal Constitution the withdrawal was a result of the company’s efforts “to more strategically prioritize development of Supercenters.” Given the fact that there are already two Wal-Marts within six miles of this site, it was a natural store to cancel. “While this decision is certainly an appropriate one from a business standpoint,” Wal-Mart said in a prepared release, “it takes nothing away from the fact that Duluth is an excellent community and a great place to do business.” The group Smart Growth Gwinnett, which spearheaded the opposition from the start, was thrilled with the news. “Not only did we achieve our goals of stopping this particular project,” a spokesperson said, “but we got a bigger win by the implementation of the new ordinance [which limits store size], which will address any future project at this particular site as well as in the entire city of Duluth.” The week, the other brick finally dropped, when landowner Jack Bandy withdrew his two lawsuits. According to the Journal Constitution, Bandy’s lawyers asked that the lawsuits be dismissed September 5th, but left the door open to a refiled lawsuit. Duluth’s City Attorney told the media that he learned of the dismissal last week, and said it fully ended the case. “There’s nothing pending now,” the city’s lawyer concluded.
Last May, the withdrawal of Wal-Mart from Duluth marked the 56th project that the retailer had either abandoned, or delayed since June of 2007. Despite losing his tenant, the landowner kept up his two lawsuits against the city of Duluth. Landowner Jack Bandy has his lawsuits pending in Gwinnett Superior Court. The first, alleged that the city violated the open records act by approving a moratorium on large-scale buildings without first advertising it on an agenda, had a trial date set for Sept. 15. But Bandy’s attorney, Governor Barnes, told the Daily Post that because the moratorium is no longer in effect, “I don’t think there’s an issue in that anymore.” Wal-Mart stated that delays caused by the city’s moratorium had killed the project. “If not for the delays imposed by the city of Duluth,” the company told the Gwinnett Daily Post, “we may have been able to move forward with a store there at that location. We have the right to go and collect permits on this site.” Phyllis West, from Smart Growth, told the Daily Post, “I think they [Wal-Mart] made a smart decision. With the economy, it might not be a smart decision to put one next to another one.” Duluth’s city Administrator said that Wal-Mart’s withdrawal was “a business decision on their part, and I respect that decision. For the citizens that opposed it, this is good news for them. The property owner probably has a different feeling.” The announcement this week that all lawsuits are gone, clears the way for residents of Duluth to begin planning for a smarter future. Readers are urged to email Duluth Mayor Nancy Harris at nharris@duluthga.net with the following message: “Mayor Harris, Congratulations on out-lasting Wal-Mart and Mr. Bandy’s lawsuits. This Wal-Mart project was the wrong size, and the wrong place. But the end of the Wal-Mart affair should become the beginning of smart growth planning for Duluth. It’s time strictly enforce the cap on the size of retail buildings so that you are not confronted again with a long, contentious battle over superstores. All of these national chains can build smaller if local municipalities direct them to do so. Your city says it has ‘a perfect blend of small businesses, entrepreneurial enterprise, major corporations and visionary developers.’ Its success is the result of ‘careful planning and great foresight.’ You have the choice now of leading growth, or following it. A Wal-Mart supercenter is not visionary. You can’t buy small town quality of life on any Wal-Mart shelf — but once they take it from you — you can’t get it back at any price. Please sit down with your residents and do some ‘careful planning’ to make sure you never get boxed in by a big box proposal again.”
