Duluth seeks dismissal of second Wal-Mart suit

LAWRENCEVILLE - The city of Duluth asked a judge to delay or dismiss the second of two lawsuits filed late last year by a man who wants to build a Wal-Mart Supercenter on his property.

In his Dec. 28 response, City Attorney Lee Thompson said landowner Jack Bandy sued Duluth before a decision was made on three appeals the big-box retailer has before the city's Zoning Board of Appeals.

That board is scheduled to hear requests from Wal-Mart later this month to change the pitch of a roof, the location of a landscape strip and the required building material for a 176,000-square-foot store on 32 acres at the corner of Peachtree Industrial Boulevard and Chattahoochee Drive.

The proposed project has drawn ire from neighbors who said a Wal-Mart in their area would bring crime and decrease property values and was out of character for small-town Duluth.

In November, Bandy filed a lawsuit in Gwinnett County's Superior Court requesting a judge overturn the Zoning Board of Appeal's decision to hear the variance requests instead of allowing the planning director to make those decisions. Former interim Planning Director Shelley Stiebling originally gave Wal-Mart permission to go forward without requiring variances.

"The Zoning Board of Appeals determined that the changes Wal-Mart requested were best acted on through variances rather than through interpretations of the director," Thompson said. "We'll have to wait and see what the Zoning Board of Appeals does. It may resolve the issues, it may not."

In his response, Thompson acknowledged that Stiebling had conversations with Wal-Mart representatives but stressed that the planning director has limited authority to interpret the city's zoning ordinance. He also said that a letter Stiebling wrote to Wal-Mart noted that any decisions are subject to appeal, a course that was taken by members of the citizen action group Smart Growth Duluth.

Bandy's other lawsuit, filed in October, asked that the city be barred from enforcing a six-month building moratorium on large developments. After a new large-scale building ordinance was passed in December, the moratorium was lifted, but the lawsuit remains active.

Bandy's attorneys did not return a phone call seeking comment about the lawsuits. Thompson said the next stage for each is to go into discovery, but that no depositions had been scheduled.

The Zoning Board of Appeals will next meet Jan. 23 at 7 p.m. to hear Wal-Mart's variance requests. Those requests were tabled from the December meeting so board members could review the large-scale building ordinance and determine how it might impact their decisions.