Appeals Court hears oral arguments in Wal-Mart zoning dispute

Last edited 4:16 p.m., June 18, 2014

The Missouri Southern District Court of Appeals heard oral arguments June 17 in a referendum petition case that centers on whether voters should be able to send zoning issues to the ballot box.

The case stems from a ruling in a lawsuit brought against the city of Springfield last year by Life 360 Church, which was selling its property at the southwest corner of Grand Street and Campbell Avenue to Bentonville, Ark.-based megaretailer Wal-Mart Stores Inc. (NYSE: WMT). The company is planning to build a 40,000-square-foot Neighborhood Market store, and it helped secure a split decision in February 2013 to rezone the property to general retail on the church site and several adjoining properties.

The petition sought to overturn council's decision to rezone roughly 6 acres at 444 W. Grand St. and 427–515 W. Normal St. After groups opposed to the Neighborhood Market store near downtown entered the petition, council in May 2013 did not reverse the zoning decision and opted to put the matter on the Aug. 6 ballot. The lawsuit filed in response by Life 360 Church/Calvary Temple and Robert and Jennifer Buchanan put the vote on hold.

In July, petitioners Lynn Myers and Charles Booth requested to intervene in the case against the city because the city was conceding that the church could be harmed if the issue went before voters.

On July 23, Missouri circuit court Judge Gerald McBeth, of Nevada, ruled the referendum petition would not head to a public vote, four days after he disallowed residents, including Meyers and Booth, from intervening in the case. That paved the way for an appeal, which was filed in August in the state Court of Appeals.

At issue in the appeal is whether the rights of Myers, Booth and other petitioners would be harmed if the city charter is not followed and the referendum is not allowed to move to the ballot.

During the hearing, attorney Bryan Wade, who is representing plaintiffs Meyers and Booth in the appeals case, said City Council was right to forward the issue to voters.

“The elected officials in this case did exactly what they should have done. The city clerk certified the petition. The city clerk then presented it to City Council. The City Council then unanimously voted that the petition should go to a vote of the people. What happened here was that the legal system – our system – broke down,” said Wade,  a Springfield real estate and development attorney with Husch Blackwell LLP. “It is inherently unfair to proceed without at least giving us a voice.”

Springfield City Attorney Dan Wichmer said the key issue before the court is whether the petitioners had the right to intervene in the case. Because their properties were up to a half mile and four miles away from the zoning area, respectively, the judge was correct in ruling they had no right to become involved in the lawsuit, Wichmer said.

From the city’s perspective, Chapter 89 of state statutes spells out that zoning issues are not subject to the referendum petition process.

While council moved to send the issue to voters – its only option under the city charter other than overturning its own zoning decision – the referendum doesn’t apply to zoning issues under state law, according to Wichmer.

“We have to follow state zoning. One thing I’ve learned from this court in the city versus Bell – and what other attorneys have learned in the case – is that if there is a state law that governs a procedure, you follow state law,” Wichmer said to the panel of three judges, referring to a 2010 Missouri Supreme Court ruling that put the brakes on the city’s procedures for enforcing its red-light camera ordinance.

After the hearing, Wichmer said he expected the judges to rule on the appeals case in the next 45 to 60 days.[[In-content Ad]]