KANSAS SITE FIGHT: EXPLAINING DENIAL

City must explain Wal-Mart zoning denial [Wichita Eagle]

The Wichita City Council didn’t clearly explain why it denied a zoning change that would have made way for a Wal-Mart Supercenter, and now it must formally explain its reasoning, a district court judge ordered Wednesday.

After council members clarify their thinking in an open meeting, the case will go back to court, where District Judge Joe Kisner will decide whether the Jan. 9 zoning denial should stand.

The dispute is over whether the council’s decision was based on conflicts with zoning guidelines or driven by backlash against Wal-Mart.

After Wal-Mart proposed the 135,000-square-foot store southeast of Kellogg and Oliver, homeowners along Orme objected, saying the 24-hour store would drastically increase traffic and noise, and ruin their quality of life.

The Orme residents were joined by a group of property owners from the College Hill and Crown Heights neighborhoods north of Kellogg.

Zoning cases are quasi-judicial and are supposed to be based on factual information—not personal feelings.

So if the council doesn’t demonstrate that the proposed development conflicts with its guidelines, the decision could be overturned, forcing a new vote.

Several council members have said they denied the change because there were too many unresolved issues and developers could not say when the problems would be resolved.

If the council’s denial is upheld, developers could reapply for the zoning change in July—but that would require a new series of public meetings and votes from a District Advisory Board, the Metropolitan Area Planning Commission and the City Council.

Kisner said his order will not bar the council from changing its decision if it chooses to revote. And he said he will consider only information in open records such as meeting minutes and ignore any information that may spill out of private discussions in executive sessions.

Later this month, the city will set a date for the council to discuss the issue. It will likely be considered in July, Kisner said.

This new twist in the Wal-Mart saga could become further complicated by the addition of two new council members who weren’t around for the lobbying, e-mails and discourse that accompanied the zoning case.

Former Mayor Carlos Mayans is out, Mayor Carl Brewer is in. Brewer’s District 1 seat remains vacant, but will probably be filled by the time the council gets to the Wal-Mart discussion. And former council member Bob Martz passed away, leaving new member Jeff Longwell to examine the case and state why he favors or opposes the development.

In an e-mail, City Attorney Gary Rebenstorf said the city is still reviewing the ruling and discussing how the council could handle the issue.

The new council members shouldn’t have any problem since planning decisions are supposed to be factually based, said Bob Kaplan, an attorney representing 30 property owners in the proposed Wal-Mart footprint, in court.

“All they have to do is be able to read,” he told the judge, pointing at a 3-inch-thick case file as his glasses dangled between his fingers.

Longwell, who will probably have to read that stack of documents, said that from his view as a non-council member at the time, it appeared the issue became very politicized and that the council could have waited for some outstanding issues to be resolved before voting.

“We can beat the up and down vote to death, but both sides knew there were unresolved issues,” he said.

If those issues between developers and homeowners were resolved, he said, he doesn’t see any reason to deny the zoning change.

But, he noted, “I have the benefit of having been an armchair quarterback.”