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Monday, November 29, 2004
Judge says
Papillion Wal-Mart can proceed
BY JOE DEJKA
WORLD-HERALD STAFF WRITER
| The Papillion City
Council acted reasonably and legally in approving a Wal-Mart
shopping center at 72nd Street and Giles Road, a judge ruled
Monday.
Sarpy County District Judge George Thompson rejected a request
from 11 Papillion homeowners to stop the 74-acre Market Pointe
center.
The neighbors had alleged in a lawsuit that city officials
shoehorned the center into a housing area with no regard for
concerns about traffic, lights, noise and crime.
Thompson ruled that the council's decision was "valid and not
unreasonable, discriminatory or arbitrary."
A lawyer for the homeowners, who live in Hickory Estates, filed
notice late Monday to appeal Thompson's decision to the Nebraska
Court of Appeals.
The center would contain 550,000 square feet of retail space,
including a 213,000- square-foot Wal-Mart Supercenter and
88,000-square-foot Kohl's department store. |
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To make the project possible, the council last spring amended the
city's comprehensive plan, which had designated the site for
houses and neighborhood businesses.
The R.H. Johnson Co. of Kansas City, Mo., won final approval July
20 when the council voted 8-0 to rezone the property from
agricultural to commercial. The developer initially hoped to grade
this fall and open the first stores in fall 2005.
Papillion Mayor James Blinn said Monday that the judge came to the
same conclusion as city planners, council members and a
consultant.
"It's good that the judge agreed with the democratic process,"
Blinn said.
A key issue on appeal will be whether the council's action
amounted to "spot zoning," said homeowners' attorney William
Gast.
Gast argued at trial that city officials violated sound
city planning principles to reap a tax windfall from the project.
Gast said the appeal will hinge on a 1958 Nebraska Supreme
Court case involving Grand Island. The Grand Island City Council
had rezoned residential land to allow a Nash-Finch grocery chain
store. The ruling in that case prohibits a city from spot zoning a
property, without regard to planning considerations, simply to
benefit a business or landowner
Randy Burns, one of the Hickory Estates homeowners, said he was
"obviously disappointed" by Thompson's ruling.
After the ruling was announced, lawyers for the city, landowner
and developer filed motions asking that the homeowners be required
to post $7.4 million with the court to cover damages caused by
delays in the project.
The money would be held by the court and used to reimburse the
city, landowner and developer if higher courts affirm Thompson's
decision, said Mike Schirber, the city's lawyer.
Blinn said the lawsuit has already delayed the project two months.
He said the delay has cost the city nearly $342,000 in lost tax
revenues from the project, legal fees, staff time and other costs.
Attorneys for the homeowners said requiring such a bond would be
unusual in such a case.
Joni Woodruff, one of the homeowners, said she is more committed
than ever to take the issue to a higher court.
Woodruff said money she is spending on the lawsuit is a fraction
of the money she would lose from her property value if the project
is built.
The homeowners have solicited donations for legal bills through
the ProPapillion Web site and with a flyer mailed to residents in
the area.
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