Wal-Mart denied appeal
Moratorium upheld; second lawsuit filed

DULUTH - Wal-Mart was denied the chance to move forward with construction of a controversial Duluth project Wednesday. And earlier this week, the man who wants to sell his land for the store filed a lawsuit asking that Duluth be forced to let the company proceed.

Denying Wal-Mart's request, the city's Zoning Board of Appeals decided Duluth's planning department acted appropriately by rejecting a building application due to a big-box moratorium that was enacted in July.

"The moratorium rules are very clear about what is to be allowed, what isn't to be allowed," board member Shannon Dodd said. "It seems very clear the director acted as she was instructed."

The moratorium is now the subject of a lawsuit by landowner Jack Bandy.

Wal-Mart had appealed the rejection in the hopes of constructing a 176,000-square-foot Supercenter on about 32 acres at the corner of Peachtree Industrial Boulevard and Chattahoochee Drive.

The moratorium, on buildings larger than 75,000 square feet, is set to expire at the end of January. The city is working on a large-scale development overlay district, which will have a public hearing Dec. 10.

Wal-Mart's appeal was tabled last month, when members of the Zoning Board of Appeals decided that Interim Planning Director Shelley Stiebling acted beyond her authority in approving the company's requests to alter a required roof line and use synthetic brick.

Monday, Bandy filed a second lawsuit in Gwinnett County Superior Court alleging that the decision was in error.

In his suit, Bandy said the city residents who appealed Stiebling's decision did not have the standing to make their case. He said that contrary to the board's decision, the planning director had the authority to make decisions about the roof line and building material.

"The plaintiff and Wal-Mart sought only to be treated as all other commercial property owners and structures had been treated within the city limits," the lawsuit said.

The suit, which is called a writ of mandamus, asked that the Zoning Board of Appeals' decision be overturned, leaving the planning director's approval of the measures intact. It also asked that the section of the zoning ordinance that covers who has the authority to make such decisions be voided because it is vague.

Duluth City Attorney Lee Thompson said he was not surprised by the suit.

"It raises the same issues they raised before the board," he said. "We'll evaluate it and file an answer to it."

The city has 30 days to respond to the lawsuit, which was directed against members of the Zoning Board of Appeals and Planning Director Clifford Cross.

Thompson also said he expects to respond to the first suit filed by Bandy by the beginning of next week. That suit asks that the city be barred from enforcing the big-box moratorium.

Glen Wilkins, a Wal-Mart spokesman, said the company is not a party to either lawsuit. He said he would not speculate on what action the retailer might take regarding the Zoning Board of Appeals' decision.

"I'm not surprised, but I'm disappointed," he said. "There are different options out there that we need to look at."

Members of Smart Growth Gwinnett, a community organization formed to keep Duluth's character intact, said they were pleased with the board's decision.

"We're happy things have stayed the status quo," Joan Berger said. "It's good. Life is good."

Wal-Mart did file a request to have the Zoning Board of Appeals consider variance requests that would let the company change the roof line, use synthetic brick and change the location of a landscape strip. Those appeals will be heard Dec. 19.