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2011-01-20
Bedford, MI. Court Trial Ends In Anti-Wal-Mart Referendum

The citizens of Bedford, Michigan voted in May of 2009 to reject a rezoning which would have led to a Wal-Mart superstore. But the landowner did not like the will of the people, and a lawsuit began.

This story actually goes back years before the current court case. On February 2, 2007, residents in Bedford were celebrating a major legal victory over a proposed Wal-Mart supercenter. Judge Joseph A. Costello, Jr. of the Monroe County Circuit Court ruled against a Ford dealer in Bedford who had filed a lawsuit against the Township over the denial of a rezoning request for land. The Whitman family, which owns the Ford dealership, was not done with filing lawsuits.

Sprawl-Buster's reported on October 29, 2006 that this battle over Wal-Mart actually dates back to 1976, when the owners of a Ford dealership bought 51 acres of residential land, and wanted roughly 8.5 acres rezoned to C-3 so they could move their car dealership out of nearby downtown Temperance.

The township was adopting a new zoning ordinance, and in the process accomplished the C-3 rezoning that the family had been seeking. But in the early 1980s, the family came back to request a C-2 rezoning, allowing a shopping center or office building use. This was also approved.

In 1992 the township had Monroe County Planning redo the township's zoning map and an error was apparently made. The western half of the parcel, which had always been residential, was incorrectly listed as C-2 commercial. The error was not found until rumors began in 2001 that the family was planning to sell the land to Wal-Mart.

In 2003, the property owners asked the township to rezone the northern half of their property to C-3 for the purpose of building a Wal-Mart. The township refused, and the Whitman family sued Bedford Township. The Judge's ruling in 2007 put plans for the 204,000-square-foot Wal-Mart Supercenter on hold. The site abuts Indians Acres, one of Bedford's largest subdivisions, which explains why residents felt the Ford dealer was trying to run them over.

In a 44-page decision, the Judge found that the township board's actions were neither arbitrary, nor capricious. He also ruled that Bedford's zoning law and Master Plan did not exclude big box stores. "This is great," one member of Bedford Watch told The Toledo Blade newspaper. "It shows that a small group of people can make a difference in the township. We stuck to what we believed in to keep it a small community."

The lawyer for the township told The Blade, "You are talking about the development of large-scale retail right next door, literally, to a longstanding subdivision."

Whitman Ford testified that they relied on the incorrect designation on the township's zoning map to market their land. But Judge Costello ruled that Whitman Ford had other ways to check the accuracy of the zoning, and filed petitions multiple times to rezone the property before 1990, when it was correctly marked residential on the map. "Over a continuous and significant period of time the plaintiff not only should have known but actually knew the true status of the zoning of the property," Judge Costello wrote.

Three years later, the Wal-Mart battle in Bedford was back in the news. The Whitman family went back before the Township Board for a rezoning, and this time, the Board agreed in May of 2009 to rezone 5 of the 6 parcels the owner asking for. But that was not the end of the story. The citizen's group Bedford Watch were able to overturn the Board's vote at a referendum vote on May 5, 2009. This required getting over 1,700 signatures on a petition. The group collected over 2,400 signatures on their petition. The referendum was won by almost 300 votes. Not a huge victory, Bedford Watch said, but a good turn out for a non-election year.

The referendum vote caused Whitman Ford to step on the brakes again, suing the township. Whitman's suit seeks to reverse the referendum vote of the people, and change the zoning on eight acres from single-family residential to commercial. So it was a lawsuit against the township, and the referendum.

Whitman's lawyer subpoenaed Bedford Watch's documents, trying to question their statements regarding traffic, crime and all of the other disturbances that urban sprawl brings. The trial began in Janaury, in the court of Judge Costello in Monroe, Michigan -- the same judge who ruled against the Whitman family once before.

Bedford Watch says the Whitman family has requested many zoning changes and has refused any compromises offered to him. One of the property owner's cousins is a trustee on the Bedford Township Board, and not only voted for the rezoning, but wrote an op-ed in the local paper accusing the "Citizens to Preserve Bedford,: which ran the referendum campaign, of using scare tactics to win votes.

In the courtroom last week, Bedford Town Supervisor Walt Wilburn repeated the charge of "scare tactics" against his fellow residents. He said the group Bedford Watch was "less than truthful" in its literature and used "false advertising" during the campaign. Wilburn said the group used the fear of a "big box store" on the site to scare voters.

The Whitman family told the court that they didn't have a buyer or developer for the site when they tried to get the land rezoned -- they were only trying to make the land more attractive to developers.

The Township's master plan designates the property in question for use as a mix of residential, office, or commercial. The Township at one point tried to help the Whitmans by amending the zoning to allow professional businesses offices on the parcel, but that idea was scrapped after voters rejected the rezoning vote at the ballot box.

At trial, the Whitman family introduced a planner who said that "mixed use" would include some commercial development, which would "meet the spirit of the master plan." But the same planner said the master plan did not encourage big box development specifically.

Judge Costello said during the trial that the referendum in reversing the land back to residential rezoning doesn't comport with the master plan, which calls for mixed use of the land. "The actions of the referendum directly violate the township's own ordinances and master plan, and therefore I would find that could not stand," the Judge explained.

The Toledo Blade newspaper quoted Doug Bermick, of Bedford Watch, saying that if the court rezones the land commercial, a Wal-Mart will follow. "We have never believed that for one second that this was not about Wal-Mart," he said. "We have never used scare tactics. Our group only used the facts that we compiled over the last 10 years. If the facts were scary then, so be it. All we did was present the facts." Bermick then added: "I believe Judge Costello will do what is best for the people of Bedford Township. I believe that he will be fair," he said.

Four years ago, Judge Costello upheld zoning denials on the Whitman Ford property made by the township board.

The Township presented its own planner, who said commercial zoning for the land-locked eight acres would be appropriate, and that the Township Board was right when they denied Whitman's rezoning application,

Closing arguments were made on January 13th in the four day trial. According to The Blade, the Judge could reach a decision as soon as Jan. 31st. In their final statement, the Whitman family argued that the Township's decision not to rezone the 8 acres abutting the residential development from residential to commercial was "unreasonable and arbitrary" and left the family without a legitimate use of the land. "Yet at the end of the day," Whitman's lawyer said, "Whitman Ford got nothing, Not a single inch of this zoning request was enacted. The township has its own rules for this property."

But the Township's lawyer said the Board followed the master plan in making their decision, and kept that the land for mixed use. The Towship reiterated that a high intensity commercial zoning proposed by the Whitmans would lead to a big box store such as Wal-Mart -- which is not compatible with the master plan. "The denial is reasonable," the Towship concluded. "There are no Whitman rules in Bedford Township, only the rules that equally apply across the board. Those rules are established by the master plan."

In defending Bedford Watch, the Township's lawyer said that citizens had a constitutional right to put the issue to voters. "Thank God we live in a country that allows that. They did what they felt was appropriate under the circumstances. They were simply attempting, as Mr. Whitman is attempting, to protect their property."

What you can do: According to the Bedford Watch website, it appears that the Whitman family got to select the time and date at which the Township Board would actually vote on the Whitman rezoning. Days after the new township board was sworn in, the new township board voted to allow the majority of the Whitman parcels to be zoned C-2 and C-3, the highest commercial zoning permitted in Bedford Township.

On September 20, 2005 under Supervisor Walt Wilburn, the Township's size limits for commercial land were changed to be much more permissive: "All buildings and structures, when considered collectively as a whole, shall not exceed an area greater than 25% of the net parcel area. Net parcel is defined as the gross parcel area minus the road right-of-way."

According to Bedford Watch, the current building size limits based on acreage, (one acre is equal to 43,560 square feet), would allow a 204,000 square foot big box store to be built with only 4.68 acres of land mass and would only require an 18.72 acre C-2 or C-3 parcel, not including road right of way.

Bedford Watch has been working to change the size limits back to something more manageable. "Just as Walt Wilburn, the Bedford Township Board and the Bedford Township Planning Commission changed the C-1, C-2 and C-3 size limits in 2005, we strongly feel the size limits can be changed back to what they were originally in 2002... we do not feel that the size limits of commercial zoning also needed to be increased in Bedford Township with 32,000 residents."

Bedford Watch members asked the Bedford Township Board members to initiate the planning process to commission a review for the current C-1, C-2, C-3 and PBO zoning. The Township Board has met to consider a size cap in Bedford.

Readers are urged to email Bedford Supervisor Walt Wilburn at supervisor@bedfordmi.org with the following message:

"It's time to stop scaring Bedford voters with all this talk about scare tactics. The voters of Bedford have clearly stated that they don't want a bib box store placed next to a residential development. Your master plan does not call for huge commercial development for that parcel.

After letting the Wal-Mart controversy pull apart your community for a decade, its time to pass a size cap that will place some realistic limits on the scale of big box developments. Wal-Mart is building superstores this year in the range of 80,000 s.f. This is still huge, but if you allow a superstore development to land next to a large residential development, you will have betrayed the voters of the Township who spoke to you as plainly as they could at the ballot box."

For more background on this long battle, go to bedfordwatch.com











 
 
"Norman has become the guru of the anti-Wal-Mart movement" ~ 60 Minutes

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