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2007-12-22
Wichita, KS. Judge Upholds City Decision to Deny Wal-Mart

Many local officials believe that if a developer needs a zoning change, you have to give it to them. But not in Wichita, Kansas, and not for a Wal-Mart superstore. Wal-Mart lost a two and a half year battle this week in Wichita. On January 10, 2007, Sprawl-Busters reported that the City Council in Wichita had denied Wal-Mart's request for a zoning change on 12 acres of land. The superstore would have been 135,000 s.f., of which 25,566 s.f. would have been for groceries. Protest petitions against the store were filed by 44% of the abutters, which meant the City Council had to pass the project with a three-fourths supermajority vote. At the time, then-Mayor Carlos Mayans reportedly wanted the project continued, not denied, to give Wal-Mart time to buy-out the neighbors, and to firm up a land deal the retailer was offering the city. Wal-Mart's deal was: you give us the zoning, we'll buy extra land for an elementary school. "We didn't even give them every opportunity to work it out," said one council member. "I wanted to give them that chance." But the City Council stood firmly against the plan, citing resident concerns and unanswered questions. But a lawsuit was filed in Sedgwick County District Court against the city by plaintiffs called Nash Special K's LLC et al. The plaintiffs were a group of homeowners who had a big financial interest in the project: they had agreed to sell their properties to the developer. The plaintiffs noted that the city's planning department approved the retailer's plans. Nash Special K claimed in their lawsuit that most of the residents in the adjoining neighborhood supported the store, and that the opposition of residents "is lawfully insufficient for denial of these applications." This week the court ruled that the City Council was justified in denying the Wal-Mart project. The court pointed out that the evening in January, 2007 when the project was voted down 5-2, the City Council gave no specific reasons for the denial in their motion. While reviewing the lawsuit, the Judge in June of 2007 asked the City Council to provide the court with more information about the factors it considered when denying the rezoning. In August of 2007, the City Council voted 6-1 to give the court eight findings as the basis for their denial: 1) the zoning, uses and character of the established residential neighborhood; 2) the suitability of the property for the uses to which it has been restricted, and the fact that further commercial encroachment would make the area less attractive for residential uses; 3) the extent to which removal of the restrictions will detrimentally affect nearby property. Increased traffic, building size and hours of operation would adversely impact the remaining residential uses and the nearby elementary school; 4) the relative gain to the public health, safety and welfare as compared to the loss in value or the hardship imposed upon the applicant. The developer would lose some economic opportunity, but that was "offset by greater concern for the detrimental impacts... of a large commercial development on an immediately adjacent residential neighborhood"; 5) the conformance of the requested change to the adopted or recognized comprehensive plan being utilized by the city. The city's "commercial location guidelines" calls for any commercial use in proximity to residential development to have "site design features" that "limit noise, lighting and other aspects of commercial activity that may adversely impact surrounding residential land uses"; 6) impact of the proposed development on community facilities, such as sewer, water, traffic and "additional policing in the neighborhood." 7) opposition of neighboring residents, especially the protest petitions; 8) the recommendations of professional city staff: the fact that "the original application had a number of problems or deficiencies that were still being worked out at the time of Council consideration." After these 8 conditions were submitted back to the Court, the Judge ruled that Kansas law gives the local zoning authority, not the court, the right to refuse to change zoning. The court looks at whether the decision was lawful and reasonable. The court's presumption is that the local authorities acted reasonably. The plaintiffs had the burden of proving the city was unreasonable through a preponderance of the evidence. "A court may not substitute its judgment for that of the administrative body," the Judge wrote, and could not find their actions unreasonable unless compelled to do so when the evidence "is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large... and was so wide of the mark that its unreasonableness lies outside the realm of fair debate." The Judge ruled that the eight findings of fact by the City were the same factors set out in Kansas state law for determining the reasonableness of a local zoning decision. He found "factors that weight against the requested zoning change," including the "significant concern" of increased traffic on the safety of school children near the site, which would "make it more difficult to get students to and from school"; the project would make nearby homes "less attractive for residential use"; the additional noise, lighting and truck traffic are "not generally positive" in a neighborhood setting; the significant public opposition shown to the project. In the end, the Judge found that "while the record is less than complete, it does contain enough information and facts to find that this decision was reasonable."

What you can do: Local officials around the country should be encouraged by this decision. It reinforces their local powers to inteprete their own zoning laws -- as long as they come up with 'findings of fact' to back up their decisions. The Judge agreed a huge Wal-Mart "raised added safety and quality of life concerns for the neighborhoods and the public school where children live, walk, run, learn and play." The Judge also said, "it is reasonable to believe it would detrimentally affect nearby property. The increased traffic... the removal of numerous homes to be replaced by commercial building and parking areas... are valid reasons to deny this application." The Judge found the facts used by the city were fairly debatable. "While reasonable minds could clearly disagree about these factors and the weight they should be given, the factors exist and are part of the record in this case." The court ruled the city's decision was not arbitrary or unreasonable." Although defending the City Council's decision, the Judge took the opportunity to lecture the Council on its process. The Judge said the "lack of open discourse by the City Council is troubling... it leaves the Court, the plaintiffs, and the public without a clear understanding of the decision." But Wal-Mart clearly understands the verdict went against them, and now they must weigh whether or not they will appeal this Judge's ruling to Appellate Court. The lawyer for the Plaintiffs told the Wichita Eagle, he would discuss an appeal with his clients. "What else can I do?" he said. The homeowners who agreed to sellout to the developer have lost -- but don't worry about Wal-Mart shoppers. Wichita already has 5 supercenters, so those residents addicted to cheap Chinese merchandise don't have far to travel to find it. For a copy of the Wichita court decision, email info@sprawl-busters.com.










 
 
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