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Examples & Resources

• SLAPP Background Letter (2006)
• K-Mart Corporation v. City of Westlake, OH, 1997
• Wal-Mart Stores v. The Vermont Environmental Board, 1996
• Ann Arundel County, MD Rezoning Requests
• Dukes v. Wal-Mart Store, Inc. (2003)
• View All

Chances are, if Wal-Mart is unhappy with a community’s decision to decline a supercenter, the matter will be taken to court. Often this is done to intimidate citizen activists—but you have the same legal options that Wal-Mart does.

Appealing a Pro-Wal-Mart Rezoning

If you can appeal a rezoning, or a special permit decision in your state—do it. It will allow you to gain half a year to a year’s worth of delay—during which time, land deal can fall apart of expire, Wal-Mart can move on, etc. Delay always works to your benefit as a citizen’s group. Litigation is a tool that Wal-Mart uses to intimidate local officials, so your group should use the same tactics.

Fighting a Wal-Mart Appeal

Your land use attorney can search case law in your state for examples of court decisions that will support your specific case. It is important to remind local officials that there is a well-established “presumption of validity” that is accorded to decisions of local planning and zoning boards by the courts. Judges do not like to substitute their judgment for that of local officials when interpreting their own zoning ordinances. If a local board has come up with written “findings of fact” to support their decision, and their decision is in accordance with local land use goals and objectives, then a developer or Wal-Mart is going to have a hard time showing that a local decision was “arbitrary and capricious.”

SLAPP Suits

In an effort to scare off citizen opponents, developers will file what is known as “Strategic Litigation Against Public Participation (SLAPP) lawsuits. These suits are filed to intimidate and retaliate against citizens who oppose developments. Such lawsuits rarely succeed in court, but they almost always succeed in making citizen’s afraid to assert their rights.

In the land use area of law, SLAPP suits are particularly common. Some states have enacted laws that require the “rapid disposition,” in which the developer must show that his lawsuit has a substantial basis in law or is supported by substantial arguments. In California, for example, a defendant in a SLAPP suit has the right to file a motion to strike the suit if the action arises from the act of a person exercising First Amendment rights in connection with a public issue. The developer has to show there is a probability that he will win the lawsuit. Although citizens fear a developer suing them, experts say that defendants in such a suit should not panic. The First Amendment right to petition government and the difficulty in proving defamation, makes it hard for developers to win a SLAPP suit.