Duluth, GA. Man Sues Town over Big Box Ban

Duluth sued by landowner who plans to sell to Wal-Mart [Atlanta Journal-Constitution]

A man who wants to sell 27 acres in Duluth to Wal-Mart sued the city’s mayor and city council in Gwinnett Superior Court on Monday.

Jack Bandy’s suit, filed on his behalf by former Gov. Roy Barnes, says the landowner was nearing a deal to sell land to Wal-Mart when “a few vocal residents ... began to pressure the mayor and council to stop the Wal-Mart at all costs.” Bandy’s suit says the land was properly zoned for a Wal-Mart and that he was “assured there was no legal problem.”

Amid controversy and opposition to the Wal-Mart, however, the city passed a six-month moratorium on July 30 on buildings over 75,000 square feet. That affected the proposed Wal-Mart and at least two other developments.

Bandy’s lawsuit asks a judge to invalidate the moratorium.

“We believe the big box moratorium was illegally passed in violation of the Open Meetings Act,” Barnes said in an email. “The complaint sets forth the course of action and the emails we obtained under the Open Records Act clearly shows this was not a matter that was just brought up on the spur of the minute. Since the action was taken without public notice as required under the Open Meetings Act, we believe the moratorium was not properly passed.”

Mayor Shirley Lasseter said she was sorry to hear the lawsuit had been filed.

“I think it’s a shame when we lose sight of what is legal and what is not, what is acceptable and what is not â€” at the expense of our taxpayers,” she said. “Having not seen the lawsuit yet, I certainly hope that we could come to some amenable conclusion for the betterment of the city of Duluth and all of its residents.”

City Administrator Phil McLemore said he wished he could speak his mind.

“Well since there’s a lawsuit filed, I probably can’t make any comment â€” even though I have an opinion,” he said. “I’ll have to refer back to [city attorney Lee Thompson] for a comment.”

Thompson said he wasn’t at liberty to discuss the suit either.

“I have no comment,” Thompson said. “I understand a lawsuit has been filed today. I have seen an email draft of it that was sent by Roy Barnes’ office. But I have not seen the actual lawsuit.”

Typically, he said, the city would have 30 days to respond.

Bandy’s plan to sell his land at the corner of Peachtree Industrial Boulevard and Sugarloaf Parkway for a Wal-Mart Supercenter has generated heated opposition from neighboring residents since becoming public in the spring. Several thousand residents have signed a Smart Growth Gwinnett online petition against the store’s plans, and hundreds have turned out at a series of meetings, often clad in red, to oppose the proposed 176,305-square-foot store.

At last week’s Zoning Board of Appeals hearing, Smart Growth Gwinnett and two individual citizens persuaded the board to reverse a former city planner’s decision to let Wal-Mart deviate from city building codes. The retailer had gotten the green light to deviate from ordinances specifying roof pitch and building materials.

In reversing the planner’s action, the board ruled that any departure from city code needed to be approved by the zoning board itself, not a city administrator.

Meanwhile, the impact study on large-scale buildings the city commissioned as one of the reasons for a moratorium has been completed, McLemore said. It should come before the city council by the end of the month. The study included a series of public meetings to hear what the community thought buildings over 75,000 square feet should look like. The city paid about $50,000 for the study to help it determine how better to plan for large-scale buildings well before the blueprint stage.

“From what I’ve seen,” McLemore said, “it helps minimize the impact a large building creates by buffers or trying to make the building look like several buildings, instead of one large building. It doesn’t eliminate big buildings in the city â€” it only tries to minimize the impact they create because of their large size.”

Wal-Mart has said it will forge ahead with its plans for a Supercenter on the site.