Whether a long disputed Wal-Mart store could become reality in Liberty Township is now - for the second time in a four-year legal battle - up to the five members of the township board of zoning appeals.

Whether a long disputed Wal-Mart store could become reality in Liberty Township is now - for the second time in a four-year legal battle - up to the five members of the township board of zoning appeals.

The disputed 500,000-square-foot "floating cap" - which township officials say prohibits the big-box retailer from building a planned 200,500-square-foot store along Sawmill Parkway - never existed, Wedgewood Limited Partnership attorney Joe Miller said at a BZA hearing last week.

"They made it up - the township made it up ... solely and only to stop Wal-Mart from coming into the township. They made it up. Period," Miller said as he began his closing arguments.

Attorneys for Wedgewood developer Charlie Ruma, who owns the Wal-Mart site, and township trustees made their final points before the BZA, wrapping up nearly a year of testimony over a zoning certificate that has been argued at various levels of the legal system since 2004.

The BZA is expected to take several meetings to decide whether to uphold the township's denial of a zoning certificate for a Wal-Mart at 10600 Sawmill Parkway or accept Ruma's appeal and issue the certificate.

Wal-Mart earlier this year failed to renew its contract to buy the 34-acre site, but Ruma has continued the lawsuit.

BZA members began deliberating privately July 22 and will continue July 29. Additional meetings could be scheduled in August.

During his presentation, Miller repeatedly said the zoning certificate was denied in error. He disputed the township's claim there was a limit of 500,000-square-feet of commercial space available to the entire 345-acre area known as Wedgewood.

Township attorneys said Ruma agreed to a "floating cap" as part of the 1991 rezoning and if a Wal-Mart is built, the limit would be exceeded.

Wedgewood attorneys said the commercial space was reserved for three sub-areas and the township has improperly allowed commercial uses to go into other areas zoned for office use.

"You cannot base denial of a zoning certificate on something that didn't exist until 2003 (when Wal-Mart first applied for zoning)," Miller said. "No amount of evidence you've heard can change the fact that the cap didn't exist."

Township attorney Mike Currie said there is plenty of evidence supporting Liberty's denial, including the overall limit on commercial development.

Wedgewood's claim that the 500,000-square-foot limit applied only to three sub areas of about 73 acres is a product of Ruma's "hindsight" and "a fallacy."

"The reality is that Charlie Ruma made a deal that 12 years later he doesn't like," Currie said. The cap "was always intended to apply to the entire development."

Currie said zoning inspector Holly Foust had other valid reasons for denying the zoning certificate, such as the failure to have it approved by an independent architectural review committee.

The application's denial was "appropriate" because Foust found nearly two dozen instances where the proposal didn't comply with the development plan, he said.

"If there is one item within the application that doesn't apply, that is in itself sufficient to deny," Currie said.

Miller disputed that argument, saying the township had signed off on plans that were reviewed by Ruma or someone in his development companies, in lieu of an architectural review committee. Not until Wal-Mart applied for zoning, he said, did the township want the review committee to have a citizen member.
Liberty's other reasons are "illegitimate," Miller said. "There's no evidence to support Ms. Foust's other reasons for denial."

The eventual decision will mark the second vote on this issue by the BZA.

The board in January 2005 upheld the 2004 denial of a zoning certificate for the store site, at the corner of Sawmill Parkway and North Hampton Road.

BZA members, in that decision, agreed with Foust that the store violated an agreement the township made with Wedgewood Limited Partnership in 1991.

That agreement included a "floating maximum of 500,000 square feet of commercial development," the BZA said.

Wedgewood appealed the 2005 BZA decision to the Delaware County Common Pleas Court, and Judge W. Duncan Whitney in September 2005 sent it back to the BZA.

Both Wedgewood and Liberty appealed Whitney's decision by taking the case to the Ohio Fifth District Court of Appeals, where both sides argued in November 2006 that Whitney had enough information to issue a ruling.

The appeals court in January 2007 dismissed the appeal, sending the case back to Whitney. The court said Whitney's decision wasn't a final ruling because he "remanded the case back to the BZA for further consideration and fact-finding."

Whitney last summer ordered Liberty's BZA to again conduct hearings as to "the basis of the 500,000-square-foot cap that's been debated in the case."
Meanwhile, a federal court case is still pending.

In November 2004, Wedgewood filed a suit in Southern District Federal Court in Columbus, calling the township's limit on commercial square footage in Wedgewood Commerce Center "improper, impermissible and a violation of Wedgewood LP's due-process and equal-protection rights."

The company claims its due process was violated and the township therefore must issue a zoning certificate.