LAWRENCEVILLE - Residents protesting a plan to build a Wal-Mart in Duluth have filed an appeal that will require a zoning board to decide whether aspects of the proposed building meet city requirements.
The appeal, filed Wednesday by Smart Growth Gwinnett, questions whether a larger, concrete brick should be used in place of regular bricks and whether a reduced roof pitch is permitted under Duluth's ordinances.
The two changes were originally determined to meet the letter and intent of city ordinances, Duluth senior planner Chris Collins said. They will come before the city's Zoning Board of Appeals on Oct. 24, and board members will decide whether the two changes are permissible or whether variances are required.
If they are, variance requests would be heard Nov. 28.
Marline Santiago-Cook, a spokeswoman for Smart Growth Gwinnett, said she is confident the October hearing will lead Wal-Mart to change its plans.
"We feel very strongly about our case, that it will be able to succeed," she said. "All our efforts are going into just stopping the project completely."
Since June, the group has been trying to keep the big-box retailer from building a 176,000-square-foot supercenter at the corner of Peachtree Industrial Boulevard and Chattahoochee Drive, near what they say is a neighborhood incompatible with the business.
Wal-Mart is trying to build on land zoned for commercial uses. The company originally requested variances that would let it change required landscaping and the roof pitch of the store but later withdrew those requests after altering its plans.
But a big-box moratorium passed by Duluth last month means no construction can go forward on buildings larger than 75,000 square feet. The moratorium is expected to go through January, but land owner Jack Bandy sent the city a letter through his attorney, former Gov. Roy Barnes, saying the moratorium is discriminatory. The letter, known as an ante litem notice, is a precursor to a lawsuit.
Glen Wilkins, a Wal-Mart spokesman, said the company had nothing to do with the notice and did not know about Smart Growth Gwinnett's zoning appeal.
"I wasn't aware, but I'm not surprised," he said.
Wilkins said Wal-Mart wants to be compliant with the city's ordinances but that a true pitched roof - which would likely rise more than 100 feet high on the 35-foot-tall building - would be structurally unsound. The prefabricated bricks, he said, are larger than normal bricks and keep the building from looking like it was built with pebbles.
Collins, of Duluth, said other buildings in the city had been permitted to use the larger bricks and reduce their roof pitches without applying for variances.
"We've let people in the past do this," he said. "It would be somewhat discriminatory to change tactics at that point."
Zoning appeals such as this one are rare, Collins said. He said Smart Growth Gwinnett may be trying to get the project before the Zoning Board of Appeals so conditions could be placed on it limiting the hours or other aspects of operation, or in the hopes of stopping the Wal-Mart completely.
Santiago-Cook said she understands that halting Wal-Mart is unlikely. But an unfavorable ruling by the board might cause the company to ditch its plans - something she's holding out hope for.
"There's a possibility they could withdraw their petition completely, that they'd no longer be interested in that location," she said. "They have doubts. They don't feel as strong as they once did."