Special report: Who wins with Walmart?

Liberty Twp. fought long, costly battle against Walmart

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Editor's note: Who wins with Walmart? The answer depends on whom you ask. This is the second in a four-part print series on the impact of Walmart stores on select central Ohio communities.

The longest local battle to keep Walmart out of a community started in October 2003 and continued until Liberty Township announced a final settlement in May this year.

During that time, the issue drove the focus and finances of Liberty Township, caused the township and the city of Powell to update their zoning codes to place limits on big-box stores and became a litmus test and a point of contention for elected officials.

The legal fight in state and federal courts cost nearly $4 million. That includes at least $1.5 million in legal fees that Liberty Township fiscal officer Mark Gerber said was spent between 2007 and 2011. Prior to 2007, township records do not itemize what legal fees were paid for specific cases, Gerber said.

The total also includes a $750,000 settlement and a court order to pay another $1.2 million in legal fees for Charles Ruma, who wanted to put the Walmart Supercenter in the Wedgewood Commerce Center.

Today, there is no Walmart in the community, which many consider a victory. Current Liberty Township trustee Curt Sybert isn't so sure.

"As the economic downturn started in 2008, the fight cost the township a lot of money that came from our general fund that we could have used for roads and other township improvements," he said. "We managed to bring the case to a close before the residents lost any essential services.

"As a civil trial attorney, I know firsthand the cost of litigation. Unfortunately, the residents felt like this was a battle worth fighting for."

The start of opposition

The battle began in October 2003, when residents started complaining about a proposed Walmart at 10600 Sawmill Parkway, in the 345-acre Wedgewood Commerce Center owned by Wedgewood Limited Partnership. Ruma was president of the partnership, which included a number of owners and investors. The township had approved the center as a planned commercial district in 1991.

Opponents said a Walmart store did not belong so close to residential properties, nor did it fit the pedestrian-scale concept they wanted for their community.

Liberty Township trustee Bob Mann joined the Liberty-Powell Neighborhood Watch Foundation, now the Community Oversight Foundation, when it was formed in 2003 to oppose Walmart. He resigned from the foundation when he became a trustee.

"I was involved from the start. They (the foundation) formed after the first hearing on Walmart in 2003," he said.

Mann said the Walmart issue "made it clear we had not been enforcing zoning. The foundation branched off to look out for the whole community and numbers grew significantly. The objective is to give voice to the people so elected officials will hear them when people feel strongly about development."

Sybert, who first won his seat in 2005, said Walmart was a big issue during the campaign.

"The former trustees decided to fight the megastore and we, (the) later trustees, inherited the litigation," he said. "We kept up the fight because the residents did not want the store in this particular area of the township and it was not a good fit for our community.

"The store was designed to be 220,000 square feet - it was truly a megastore," he added.

Former trustee Peggy Guzzo, first elected in 2005, said "out-of-control commercial growth" was an issue for the entire community. Guzzo protested against the proposed Walmart as a citizen and then as a trustee from 2006-2009.

"What I campaigned on, and what so many citizens' interests were, was, 'however we got here, let's fix it.' We wanted to address big-box; everyone was suggesting language to limit big-box," she said.

Mann, who lost a bid to be elected to the Liberty Township Board of Trustees in 2005, subsequently won a seat in 2007.

"Even to this day, I can count on both hands from a community of 20,000 (the people) who were unhappy about this," he said.

People move to Liberty Township and Powell for the environment, Mann said, and a Walmart Supercenter would have ruined that.

Resident support

With citizen groups in Liberty Township and Powell forming to oppose the proposed Walmart, trustees went ahead with the legal battle.

"The residents supported our fight of this megastore," Sybert said. "I received very few emails supporting the store. Our residents never wavered in this fight."

Guzzo agreed.

"The general consensus was that the citizens wanted control, good planning, smart development and some consistency," she said. "They definitely supported not allowing big-box establishments to come in most residents were in support of preventing that."

In addition to concerns about major stress on infrastructure, Mann said the Walmart plans also raised residents' fears of an increase in crime, a decrease in property values and other costs to the community.

"We had an expert appraiser that showed the property values around Walmart would drop anywhere from 15 to 25 percent," he said, noting that the development also would have brought cut-through traffic to neighborhoods.

"It would be devastating to have a 220,000-square-foot Walmart at that location," Mann said. "It would put the small businesses out of business. Powell (City Council) also passed a resolution opposing Walmart."

The legal issues

In 2004, township trustees issued a statement that said there was a 500,000-square-foot limit, or "floating cap," on commercial development in the Wedgewood Commerce Center. Parts of the center were already developed, they said, and only 109,389 square feet more of commercial development was allowed.

In September that year, the "floating cap" was among the reasons township zoning inspector Holly Foust cited, when she denied Wedgewood LP a zoning permit to build a Walmart. She said the proposal would exceed allowed commercial square footage in the development.

Also in 2004, shortly after Foust's decision, Wedgewood LP filed a lawsuit in U.S. District Court. Ruma also appealed the denial of the zoning certificate in Delaware County Common Pleas Court.

For the next five years, the denial of the zoning certificate bounced back and forth between the township's board of zoning appeals and Delaware County Common Pleas Court until Common Pleas Judge Duncan Whitney decided in June 2009 that Wedgewood LP's fight to obtain a zoning permit from Liberty Township was moot because Walmart had abandoned plans to build the store in February 2008.

Ruma's federal lawsuit alleged that the township violated the Wedgewood partnership's right to due process when trustees issued a public statement on Jan. 19, 2004, saying there was a 500,000-square-foot limit - the "floating cap" - on commercial development in the Wedgewood Commerce Center. The lawsuit also said the statement was an attempt to instruct the zoning department "regarding future administration" of the center's development plan.

Calls and emails seeking comment from Ruma for this story were not returned. Bruce Ingram, who represented Ruma in the case, said developers file lawsuits against communities when there is no other option.

"The Liberty Township case was about a township that changed the rules of the game in midstream after it had approved property for commercial development and millions of dollars had been spent on the land and infrastructure," he said.

U.S. District Court Judge Algenon Marbley sided with Ruma and ruled in December 2010 that in trying to keep Walmart out, trustees did violate the right of due process of the property owners, Wedgewood LP. Marbley also ruled that the township could not enforce the "floating cap" limit.

"Liberty Township did not defeat Walmart - in fact, quite the opposite," Sybert said. "Federal Judge Marbley decided in favor of Walmart and against the township and awarded $750,000 in civil damages.

"This was paid by our insurance carrier and not out of the township's general fund," he said. "A settlement was reached between the parties on the attorney fees issue and the insurance company paid the developer $1.2 million in attorneys' fees."

Mann said the fight was worthwhile.

"Look at what the community saves and how the community benefited. If Walmart had gone in, crime would have increased, we would pay for police protection There were a lot of costs and a lot of detriment avoided," he said.

Guzzo agreed: "Absolutely, because we don't have a big-box there. We were able to effect change in the language (on big-box in the township zoning code)."

 

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