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Attorney: Duluth ban singles out landowner

LAWRENCEVILLE - Duluth officials have known about a property owner's big-box intentions for more than a decade, the man's attorney said Thursday.

And after the land was under contract with Wal-Mart for eight months, the timing of a recent moratorium on large stores - which was fueled by residents' oppositions to the sale - singled out the man's plans, his attorney said.

"The moratorium comes out of the blue," former Gov. Roy Barnes said. "The city has all large stores everywhere. It's a classic example of discriminatory action."

Barnes is representing Bancorp Inc. and Jack Bandy, a Duluth landowner who has a contract to sell his property at the corner of Peachtree Industrial Boulevard and Chattahoochee Drive to the retailer.

Barnes said Bandy has owned the land for more than 40 years and let Duluth know he intended to put a large store on the property when it was annexed into the city in the mid-1990s and the zoning changed from industrial to commercial uses.

In an Aug. 31 ante litem notice, legally required before a lawsuit can be filed against a city, Barnes said Duluth's moratorium is the result of political pressure and prejudice. He is seeking $25 million.

Barnes said he filed the notice before the moratorium was lifted - it was enacted in July and a study is slated to be completed before the end of January - because he anticipates the end result will be a ban on buildings more than 75,000 square feet. Wal-Mart wants to put a 176,000-square-foot supercenter on the property.

"I know exactly what's going to happen," Barnes said. "They're going to find some way to allow hotels ... What they want to do in the future is up to them. This meets the requirements. They're interfering with property rights, which are protected by the constitution."

Lee Thompson, Duluth's city attorney, said he had no comment about the situation.

The moratorium was enacted at the end of July after local residents turned up to city meetings en masse to protest Wal-Mart's plans to build near their subdivisions. More than 2,300 people have also signed an online petition against the store.

Barnes said there is no more commercial spot than the property, which is near Sugarloaf Parkway.

"There's no adjacent neighbors," he said. "It's not like it's in the middle of a subdivision."

Wal-Mart had originally requested two variance requests that would have put its plans before the zoning board of appeals but withdrew them last month, hoping to go forward with construction without needing city approval.

The company tried to apply for development permits Aug. 17, but the request was not honored due to the moratorium. That, Barnes said, is what prompted the notice.

Barnes said he trusts the city will consider the information contained in the notice over the next month. Duluth has 30 days from the Aug. 31 receipt of the letter to respond, and a lawsuit cannot be filed during that time period.