A Wal-Mart lawyer had the nerve this week to charge local political maneuvering in a case where the retailer brought in a former Governor to take their side. On July 1, 2007, Sprawl-Busters reported that citizens in Duluth, Georgia were up in arms about a proposed 176,305 s.f. Wal-Mart supercenter on Peachtree Industrial Boulevard. Wal-Mart proposed a super store in a general commercial (C-2) zone. The 24 hour supercenter would be located about 4 miles from another one in Duluth, and this one would be smack in the middle of several neighborhoods. On July 30th, the City Council unanimously voted to create a 6-month moratorium on “big box” construction projects — anything larger than 75,000 square feet. This week, opponents pushed Wal-Mart further back into its hole, when the Duluth Zoning Board of Appeals unanimously agreed that a former city official — interim planning director Shelley Stiebling — 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. “I think she exceeded her authority,” said one ZBA member. Wal-Mart had asked for variances on the pitch of their roof, and on some building materials on the “skin” of the store. This is a procedural victory that will delay processing of Wal-Mart’s proposal, because the retailer must now reapply for the variances. “I’m just disappointed,” a company spokesman complained to the Atlanta Journal Constitution. ” I think it’s a case of politics instead of the law being followed.” Duluth City Hall was packed 3 nights ago for the ZBA meeting. The citizen’s group, Smart Growth Gwinnett, vowed to keep fighting the superstore plan. Wal-Mart’s lawyer tried to argue that the residents who were challenging Planning Director Stiebling’s ruling, did not have legal “standing” to be heard — even though the city’s building ordinance says that anyone has the right to appeal variances. “In order to be aggrieved,” Wal-Mart’s lawyer testified, “a person must demonstrate that his property will suffer special damages because of the decision. The rule is designed to prevent individuals from taking on a cause.” Wal-Mart even rolled out former Georgia Governor Roy Barnes to speak on its behalf. The Governor testified in support of the landowner, who has threatened to sue the city for $25 million if he is unable to sell his land to Wal-Mart. The Governor explained that Wal-Mart wanted a variance to use “Quik-brik” on the store’s fa??ade, which he said is a common material in other projects throughout Georgia. He also complained that the kind of roof Wal-Mart wanted to build is the same kind of roof on Duluth City Hall. Governor Barnes charged that the city would not be treating Wal-Mart equally under the law, and that the city’s decision not to give the retailer a building permit because of the six month size cap on buildings, would “have the effect of taking his property from him.” During the hearing, Wal-Mart revealed an email from Duluth Mayor Shirley Lasseter, which said she’d “love to have a moratorium but it might be illegal.” From this evidence, Governor Barnes concluded that the city had “a political imperative to stop Wal-Mart… They went after one business and one business only.” But the citizens argued that the Planning Director simply didn’t have the legal authority to grant variances on roof pitch or building materials — only the ZBA could do that. They won that limited argument this week.
The newspaper described this vote as “a big victory” for Wal-Mart opponents, but it is only a lull in the fighting. Despite this week’s ruling, Wal-Mart is not about to walk away from Duluth because of the pitch of its roof, or the use of Quik-brik. The landowner is clearly politically-connected, and is threatening legal action. The Mayor of Duluth clearly has no clue about the validity of a moratorium. If the city fails to grant Wal-Mart a building permit, the land transaction will not happen, and the landowner will sue the city. If the building permit is granted, citizens are likely to seek litigation. Either way, Wal-Mart has walked into another legal morass — one that could have been predicted, and one which the company might have softened if it had attempted to work with store opponents. But because they are seeking a 24/7 store, massive in scale, near several neighborhoods, they have guaranteed that the timeline for a superstore in Duluth will be a long and painful road for Wal-Mart. In the meantime, readers are urged to drop an email to Mayor Lasseter at [email protected]. The city will elect a new Mayor on November 6th, but tell the current Mayor, “Duluth needs to enact a permanent cap on the size of buildings. Moratoriums are legal, and are being used all over the nation to prevent what’s happening in your city on Peachtree Industrial Boulevard. Duluth needs more peaches, and less Quik-brik. Don’t be intimidated by Wal-Mart’s legal threats. You have the right to pass an ordinance that will permanently keep out all big boxes over 75,000 s.f. Do it as your last official act as Mayor.” As a side note, Wal-Mart’s lawyer is dead on when he says that “standing” laws across America were written by developers and real estate interests to “prevent individuals from taking on a cause.” This is one reason why activists need to widen “standing” laws, which prevent citizens from using their First Amendment rights to petition government.
