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2014-07-27
Whitehall, MI. Judge Rules Against Citizens in Wal-Mart Superstore Appeal

On July 23, 2014, a judge in the 14th Circuit Court of the County of Muskegon, Michigan ruled against local residents in Whitehall Township who had appealed a proposed Wal-Mart supercenter in their tiny community. But the local citizens' group has vowed to fight on.

Back on May 4, 2014, Sprawl-Busters reported that residents had been fighting Wal-Mart in Whitehall Township for over a year, attempting to stop a 126,000 s.f. superstore. Local residents formed a citizens group, BOWNOT, which stands for "Back Off Wal-Mart--Not Out Town."

This tiny township of 2,700 people clearly has no need for a superstore, because Wal-Mart already has two superstores within 17 miles. But the Whitehall Township Planning Commission met in late April of 2013 to begin processing the Wal-Mart application for a site plan review. Opponents said a special permit 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.

BOWNOT 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. BOWNOT 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 BOWNOT'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."

In October of 2013, BOWNOT 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. Marletti ruled in favor of BOWNOT, 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, BOWNOT, 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."

The BOWNOT 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 BOWNOT's appeal.

Judge Marletti issued his 9 page decision this month, having deliberated on the case for roughly 12 weeks. The Judge said "the court is mindful of the concerns expressed by the Appellants... In fact, the court shares some of the opinions expressed."

Despite agreeing with the residents concerns, the Judge ruled that the Township's Planning Commission was provided with "competent, substantial and material evidence to support the decision to approve the permitted use of the property."

The Judge did not rule on several aspects of BOWNOT's charges, arguing that their appeal had not been filed in a timely way. The site plan appeal had to be filed within 30 days of the Planning Commission decision, and BOWNOT's appeal of the site plan was not filed until a month after that deadline. The court also said it had no jurisdiction to rule on whether or not the project involved a special use or was a permitted use.

BOWNOT also challenged the legality of the Township charging a fee for their court appeal to the Zoning Board of Appeals and the Township's Board. The court ruled that the Township "is empowered to impose a fee for this appeal." BOWNOT charged that the fee as really a tax, but the court said the cost was "a fee for a service not a tax," and that residents were not required to pay this fee "until they elected to pursue an appeal."

Last May, BOWNOT told Sprawl-Busters that if they lost in Circuit Court, it might be necessary to take their case to the Court of Appeals. "The passion to keep Wal-Mart out of the White Lake area runs deep here," says Dave Frederick, a spokesman for BOWNOT. "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: As of two months ago, BOWNOT reported that their group had raised and spent more than $45,000, much of that for legal fees. The group estimates an additional $20,000 will be needed to pay current and future legal bills.

After the court ruling, Frederick told Sprawl-Busters, "We will begin fundraising next week in hopes of raising enough money to initiate an appeal to the Court of Appeals."

Readers who want to help BOWNOT 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.










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

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