Wal-Mart plans on hold despite court decision

There is still no clear way forward for a center city Wal-Mart Neighborhood Market despite an Aug. 14 ruling in favor of neighbors waiting to sell their land to the megaretailer.

Bentonville, Ark.-based Wal-Mart Stores Inc. (NYSE: WMT) would seemingly have a second green light to develop its plans at Campbell Avenue and Grand Street after an appellate judge ruled the area’s zoning wasn’t up to voters to decide. However, those looking to intervene in a lawsuit between property owner Life 360 Church/Calvary Temple and the city of Springfield haven’t exhausted their legal options, according to a representative attorney.

With no further action, however, the latest ruling could cap 18 months of disputes over the land largely owned by a church ready to sell and the concerns of many in the community who feel a Wal-Mart store would only exacerbate traffic congestion on the corner about a mile south of downtown.

Case background
Opposition to Wal-Mart’s plans for the roughly 41,000-square-foot Neighborhood Market began to coalesce in early 2013 as the retailer and Life 360 Church sought a zoning change to allow for a retail store.

Following much public debate largely centered around traffic congestion, Springfield City Council voted 5-4 in February 2013 to rezone roughly 6 residential acres at 444 W. Grand St. and 427–515 W. Normal St. to a general retail district. The vote made way for Wal-Mart’s grocery-focused store, but just two months later, the city clerk’s office certified 1,808 signatures submitted from a diverse group of opponents calling for a repeal of council’s rezoning decision.

The petition called for council to repeal its zoning change or send the issue to voters – the body’s two options under city charter.

On May 20, 2013, council voted 6-2 against a repeal of its February decision, statutorily sending the issue to residents.

Before the month ended, Life 360 filed suit against the city claiming it had no right to send the issue to voters and that the church could be hurt by the move. The sale of the property was contingent upon the property owners securing the retail zoning, according to Springfield Business Journal archives.

In July 2013, Judge Jerald McBeth, of Nevada, agreed with the church and ruled the referendum petition should not head to a public vote. In that decision, McBeth denied a request by petitioners Lynn Meyers and Charles Booth to intervene in the case. On Aug. 14, the Southern District of the Missouri Court of Appeals upheld McBeth’s decision.

Next steps
John Holstein, an attorney with Polsinelli PC in Springfield who represents Life 360 church in the case, said the court was right to find the parties didn’t have a compelling interest in the suit.

“We believe the court correctly decided the case based on the facts and the law, and that’s all we can ask for,” Holstein said. “The decision is not contrary to any prior cases and consistently applied the precedent that we presented to the court.”

Not everyone agrees.

Springfield attorney Jason Umbarger, who represents another group of four petitioners looking to intervene in the case, said his clients – former Missouri State University instructor Mike Schilling and petitioners Marla Marantz, Phyllis Netzer and Louella Harlamert – are weighing their options. The attorney said they could ask for a rehearing in the appellate court. The next step, he said, would be to request the Missouri Supreme Court hear the case.  

Umbarger said the Missouri Declaratory Judgment Act outlines who could intervene in a lawsuit, which in his opinion gives his clients a case to fight.

“If I have a cause of action against you and your neighbor, and I just sue your neighbor and not you, but then somehow I get a judgment that binds you, well, that’s not fair because you are a necessary party. You should have a right to be heard and noticed. In this case, the Missouri Declaratory Judgment Act requires the attorney general of the state of Missouri be given notice,” Umbarger said. “The reason that is so important is because the settlement, [or] judgment, the city of Springfield and Life 360 church worked out amounts to judicial approval of a compromise that says voters in the city of Springfield won’t be allowed to have a voice at the ballot box on certain land-use issues.

“The problem is that these voters that got their rights adjudicated never had a place at the table. And the only entity suited to represent the voters, the public, in that issue is the attorney general.”

Holstein said the court’s decision cited numerous cases in which parties without a direct interest in a lawsuit were denied a chance to intervene.

According to the judgment, in State ex. rel. Nixon v. American Tobacco Co., the state Supreme Court held that the right to intervene does not include “a mere, consequential, remote or conjectural possibility of being affected as a result of the action.” And in Clarkson Kehrs Mill Transportation Development District v. Minbole, et al., taxpayers who opposed the creation of a taxing district to support the development of a shopping center moved to intervene in the case between the landowners and several government entities. They were denied at the trial court and appellate levels for having a “vague, passing” interest in the suit.

Holstein said transfers to the Missouri Supreme Court are rare, and the church administrators are ready to move on.

“I would hope that everyone would just get on with their lives, let us close on the transaction and let us put the property to its highest and best use as a commercial property,” Holstein said, adding the parties looking to get involved had no economic interest in the tract of land to which the zoning applies. “We’re anxious to put that to rest as soon as we can.”

An issue the court itself hasn’t laid to rest is whether registered voters should be able to petition the city to change a zoning decision or send the matter to the ballot box. City Attorney Dan Wichmer said the decision was very narrow and does not provide guidance to the city related to its charter and referendum petitions.

“What the court did was decide a preliminary matter,” Wichmer said. “I know we argued at the trial court that we don’t think referendum [petition] is available in a zoning matter. That has been our view from the get-go based on our reading of the [city] charter and how state law intertwines with it, but the court didn’t decide that issue.”[[In-content Ad]]