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2014-05-04
Whitehall, MI. Citizens Mark One Year Legal Delay in Wal-Mart Superstore

On April 25, 2014---just over a year ago---Sprawl-Busters first wrote about a battle in Whitehall Township, Michigan, where a 126,000 s.f. Wal-Mart superstore had exploded into the news, prompting local residents to form a citizens group, BOW NOT, which stands for "Back Off Wal-Mart--Not Out Town."

This tiny township of 2,700 people clearly has no need for a supserstore, because Wal-Mart already has two superstores within 17 miles. But the Whitehall Township Planning Commission met in late April of 2014 to begin processing the Wal-Mart application for a site plan review. Opponents said a special permit would was needed, which would require more review, and could ultimately be appealed to court if neighbors were unhappy with the Township's decision.

Wal-Mart has 30 acres of land that is zoned "business," which allows general retail stores as a permitted use. The Township's Zoning Administrator told planning commissioners that Wal-Mart is a retail store, and not a shopping center, and that only a site plan approval was needed.

BOW NOT retained an attorney out of Traverse City, Michigan, named Scott Howard, and the group argued that Wal-Mart was a "shopping center" under the township ordinance, which is defined as "A group of commercial establishments, planned, developed, owned and managed as one unit, with off-street parking provided on the property."

Attorney Howard said that Wal-Mart has multiple businesses within the proposed store plus three "out lots" for other businesses, so the project is a "group of commercial establishments," and Wal-Mart owns the entire parcel. The plan also has its own off-street parking lot of 505 cars.

The township Planning Commission in August of 2013 voted to approve Wal-Mart's site plan. BOW NOT then appealed the planning commission's decision to the township board and the zoning board of appeals, claiming the proposed superstore was a "shopping center" under the township's zoning ordinance and needed a special-use permit.

The township board unanimously rejected BOW NOT's appeal in September of 2013, and the zoning board of appeals refused to hear the appeal, arguing that the planning commission had approved the site plan "both as a permitted use and as a special use."

October of 2013, BOW NOT appealed the Planning Commission's approval to the County's Circuit Court. The township and Wal-Mart challenged the plaintiffs "standing" in court, saying that they had no legal right to sue, regardless of the merits of the case.

But in February of 2014, Muskegon County Chief Circuit Judge William C. Marietti ruled in favor of BOW NOT, and against the township and Wal-Mart's motion to dismiss the case. The Judge ruled that the 7 neighbors had standing because they would suffer "special damages," and that the non-profit group, BOW NOT, which represented them, also had the right to sue.

The judge said a huge Wal-Mart superstore "will precipitate a substantial change in the neighborhood by disrupting its rural residential character....This substantial special damage to these folks in the vicinity of the new store is in addition to increased traffic, decline in property values, environmental concerns and aesthetics."

BOW NOT's court appeal asks the judge to declare the Wal-Mart proposal a "shopping center" under the township's zoning ordinance; to declare that the planning commission was wrong not to require a special use permit, and to reverse the planning commission's approval of the site plan and declare that Wal-Mart failed to meet the site-plan standards in the township's zoning ordinance.

The BOW NOT appeal asks the court to remand the matter to the planning commission to "properly apply the special use permit standards," or to order the township's zoning board of appeals to hear BOW NOT's appeal.

This week, one year after the first shots were fired, BOW NOT issued this press release:

"One year after Whitehall Township attempted a slam-dunk to approve a 126,000-square-foot Wal-Mart supercenter, the White Lake area is still Wal-Mart-free -- an accomplishment attributed to nearly 4,000 residents, business owners, and visitors who signed petitions, sent letters, held rallies, spoke out, and donated funds to keep Wal-Mart out of the White Lake area. Their efforts have been supported by the White Lake Area Chamber of Commerce and the elected officials of three White Lake-area municipalities, all of whom passed resolutions in opposition to the planned construction.

According to Sprawl Busters, a group that monitors efforts to curb urban sprawl and big-box development, nearly 450 communities across the country have fought big-box stores -- most of them Wal-Mart's--and won.

Yes, these communities stopped the retail giant known for environmental disasters, the ruination of locally owned businesses, unfair labor practices, and low wages that cause workers to apply for taxpayer-supported subsidies. Contrary to the Wal-Mart-promoted myth, the world's largest retail corporation can be stopped, and with almost 4,000 people behind us, we intend to stop it here."

BOWNOT and five Whitehall Township residents have pursued this fight through the local appeals process. Their case will be heard in Muskegon County Circuit Court on May 5 at 2:00 p.m. If they lose in Circuit Court, it may be necessary to take the case to the Court of Appeals.

BOWNOT reports the group has already raised and spent more than $45,000, much of that for legal fees. Local business owners, residents, and vacationers have been steadfast and generous in their support of the effort. The group estimates an additional $20,000 will be needed to pay current and future legal bills.

"While this amount of money is sofa change for Walmart, it's a lot to raise in a small community, but I'm confident we can do it. The passion to keep Walmart out of the White Lake area runs deep here," says Dave Frederick, a spokesman for BOW NOT. "The legal expense is an unfortunate but necessary price to pay to save our local businesses and jobs, and to preserve the region's thriving tourism business and the small-town character of the White Lake area that we cherish."

What you can do: On May 5th, the Judge could send the case back to the Whitehall Township and require the Zoning Board of Appeals to hear our appeal. The case could also be remanded back to the township's Planning Board to hear the case as a special permit. If the Judge rules against BOW NOT, the citizens have the right to file an appeal with the courts, delaying Wal-Mart further.
Readers who want to help BOW NOT handle its legal bills can go to the group's website and help defray the citizen's legal bills. Go to: http://www.bownot.org/Donate. The work of this group of citizen activists has already cost Wal-Mart tens of millions of dollars in lost sales as this location, and protected local businesses from losing the same shopping dollars.

What you can do: BOWNOT and five Whitehall Township residents have pursued this fight through the local appeals process. Their case will be heard in Muskegon County Circuit Court on May 5 at 2:00 p.m. If they lose in Circuit Court, it may be necessary to take the case to the Court of Appeals.

BOWNOT reports the group has already raised and spent more than $45,000, much of that for legal fees. Local business owners, residents, and vacationers have been steadfast and generous in their support of the effort. The group estimates an additional $20,000 will be needed to pay current and future legal bills.

"While this amount of money is sofa change for Wal-Mart, it's a lot to raise in a small community, but I'm confident we can do it. The passion to keep Wal-Mart out of the White Lake area runs deep here," says Dave Frederick, a spokesman for BOW NOT. "The legal expense is an unfortunate but necessary price to pay to save our local businesses and jobs, and to preserve the region's thriving tourism business and the small-town character of the White Lake area that we cherish."

On May 5th, the Judge could send the case back to the Whitehall Township and require the Zoning Board of Appeals to hear our appeal. The case could also be remanded back to the township's Planning Board to hear the case as a special permit. If the Judge rules against BOW NOT, the citizens have the right to file an appeal with the courts, delaying Wal-Mart further.

Readers who want to help BOW NOT handle its legal bills can go to the group's website and contribute to defray the citizen's legal bills. Go to: http://www.bownot.org/Donate

The work of this group of citizen activists has already cost Wal-Mart tens of millions of dollars in lost sales at this location, and protected local businesses from losing the same shopping dollars.










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

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