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2011-01-30
Bedford Township, MI. Judge Ignores Voterís Decision And Sets Stage For Wal-Mart Project

A single Judge in Michigan has trumped the wishes of citizens voting in a referendum to stop a Wal-Mart superstore project.

On January 28, 2011, a Circuit Court judge in Monroe County, Michigan handed down a 24 page decision that overturned a voter referendum in Bedford Township, Michigan to restrict big box development in their community.

The citizens of Bedford 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 battle has gone through many twists and turns. On February 2, 2007, residents in Bedford were celebrating a major legal victory over the proposed Wal-Mart supercenter. Judge Joseph A. Costello, Jr. -- the same Circuit Court judge who just ruled against the referendum -- had 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, kept pouring money into legal appeals.

Sprawl-Buster's reported on October 29, 2006 that this battle over Wal-Mart actually dates back to 1976, when the owners of the Whitman Ford dealership bought 51 acres of residential land, and wanted roughly 8.5 acres rezoned to C-3 General Commercial, so they could move their car dealership to Bedford. 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 residential subdivisions, which explains why residents felt the Ford dealer was trying to run them over.

In 2007, Judge Costello ruled that the township board's actions were neither arbitrary, nor capricious. But he also ruled that Bedford's zoning law and Master Plan did not exclude big box stores. The lawyer for the township told The Toledo Blade newspaper, "You are talking about the development of large-scale retail right next door, literally, to a longstanding subdivision."

Three years later, the Wal-Mart battle in Bedford was back in the news. The Whitman family went back before the Township Board for another rezoning, and this time, the Board agreed in May of 2009 to rezone 5 of the 6 parcels the owner was asking for. But that was not the end of the story. The citizen's group Bedford Watch was able to overturn the Board's vote at a referendum 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 won by almost 300 votes.

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

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 January, in the court of Judge Costello again.


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 of using scare tactics to win votes.

In the courtroom, 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 has testified in 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, and 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 didn'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.

In closing arguments, the Township's lawyer said the Board followed its master plan in making their decision, and kept that the land for mixed use. The Township 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 Township 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."

The Judge's ruling on January 28th in favor of Whitman Ford also complimented the citizen's group as "a great example of our democratic society at work." The Judge said Bedford Watch "attempted to have the ordinance amended and pursued further relief by way of a referendum. The Township Board denied the proposed amendment to the ordinance, but the referendum was initially successful. Despite claims of a misleading and biased campaign, opponents were free to counter it, but no one did. The Township officials properly stayed out of the fray."

But the court's decision now leave a critical 8 acres parcel of land zoned as a Shopping Center Business district, not residential. This would leave a center section open for intense commercial uses, while the eastern portion would be "local commercial" and the western portion would reflect a "mixed residential/office/commercial" area.

During the trial Whitman Ford indicated that a "number of businesses" were interested in the site but that no formal discussions had been made with Wal-Mart."

Whitman complained during the trial that the neighbors held boycotts against him, that negative letters were sent to the Ford Corporation, and a website indicated that his business was for sale."

Bedford Township testified that the Whitman plan was "inconsistent with the master plan which provides for residential use and possible mixed office or local business use and because more of a buffer and transition is needed between the residential zoning on the west to general commercial zoning and uses on the east." The township said rezoning to a less intense transitional use would better fit this parcel.

Walt Wilburn, the Town Supervisor, who favored the project despite the township's vote, told the court that "local commercial" within the definition of "Mixed Residential/Office/Commercial" permits a large scale retail store. But a large project like this is clearly regional-serving, and the antithesis of 'local commercial.'

Whitman Ford hired a planner who said it would be the best plan to develop the property for big box as opposed to individual small businesses -- which would have no relation to each other. The big box zone would require "everything to be planned" with common parking and landscaping.

Whitman's land use planner said that a large retail store such as Lowe's Lumber next to a residential property was not a problem He disagreed with the contentions of the Bedford Watch group that large retail would be detrimental to property values and would destroy locally-owned businesses. Fortunately, Whitman's planner will not have to live anywhere near the proposed Wal-Mart.

Another consultant for Whitman Ford told the court that rezoning to a shopping center classification allows a "large retail" store and a "high intensity" use, and. Therefore may not meet the objectives of the township's Master Plan. Even though he testified that a "mixed" designation was clear in the Master Plan, and a big box store would not be encouraged, he said it that "not enough to shoot down" the
Whitman Ford application.

The town's planner told the court he disagreed that a shopping center commercial classification was consistent with "mixed" use. He said "Mixed Residential/Office/Commercial" use meant a "lower intensity commercial use" while the shopping center classification had no size limit and permitted a high intensity use. He stated that C-2 shopping center zoning was too intense to be adjacent to the proposed residential parcels, and that it does not conform to the Master Plan. He said the "Mixed Use" zone would consist of small businesses, convenience shopping and size limits"such as personal services, specialty shops and individual businesses of a small scale. He said "local commercial" references businesses that would serve the "day-to-day convenience shopping and service needs of neighborhood residents,"

But Judge Costello ruled that the referendum action restored the property to residential, which clearly violated the ordinance and was unreasonable because of the "arbitrary and capricious and unfounded exclusion of other types of legitimate use."

"This results in a finding," the Judge wrote, "that, (l) an unreasonable government interest is being advanced by the present [residential] zoning classification; and/or (2) arbitrary and capricious decisions were made resulting in an unfounded exclusion of other types of legitimate land use from the area in question."

It is unusual for a court to substitute its judgment for that of local officials interpreting their own zoning code, but that's what has happened in Bedford.

What you can do:
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 stated that they did not want a big box store placed next to a residential development. Your master plan does not call for huge commercial development for that parcel. A Wal-Mart superstore is clearly not 'local commercial.'

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.

Especially in light of the recent court ruling, it's important that township official try to limit the scale of buildings so that they appropriately can be called local commercial, and not regional commercial. You still have your Master Plan to guide you on this point. Regardless of what the court ruled, this is about size, and this is about Wal-Mart.

Bedford voters have told you what they want. Their intent was clearly for local commercial projects, not for the big box superstores. 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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