The "floating cap" concept of Liberty Township's 500,000-square-foot limit on commercial development in Wedgewood Commerce Center cannot be enforced, a Delaware County judge has ruled.

The "floating cap" concept of Liberty Township's 500,000-square-foot limit on commercial development in Wedgewood Commerce Center cannot be enforced, a Delaware County judge has ruled.

The township had used the concept as its reason for not allowing a Walmart store.

Common pleas Judge Duncan Whitney issued a judgment June 11 in the case initially filed in 2005. Wedgewood Limited Partnership -- developer of the proposed Walmart site -- filed the suit to appeal Liberty Township's refusal to issue the department store a building permit.

In May 2008, Wedgewood announced Walmart had abandoned its plans for a 220,528-square-foot store on a 34-acre lot at 10600 Sawmill Parkway.

For that reason, Whitney ruled the developer's appeal of the township's denial of a zoning permit is moot but said he agrees with the portion of U.S. District Judge Algenon Marbley's September 2008 ruling that "the 500,000-square-foot 'floating cap' does not exist" on commercial development in the Wedgewood Commerce Center, "nor can it be enforced."

The federal case was filed in 2004 by the partnership's president, Charles Ruma, after the township denied Walmart a permit.

The issue remains in the federal courts. Liberty Township has appealed Marbley's ruling to the Sixth Circuit U.S. Court of Appeals.

"Both the state and federal courts have determined that the 'floating cap' was made up solely to stop Walmart, and now the township is going to have to ante up for the damages caused to the developer for the township's violation of his civil rights to develop his property in accordance with the legitimate zoning on the property," Bruce Ingram, attorney for Wedgewood, said in an e-mail.

The issue of damages would be addressed by Marbley and would not be addressed until after the township's appeal of his decision has been decided by the Sixth Circuit court, according to an official in Marbley's office.

Township attorney Bill Loveland said the Walmart application was denied for various reasons and not only for the square-footage limitation.

"We continue to believe because the application was incomplete in many respects that Wedgewood has suffered no damages," he said.

Township officials would not discuss the "floating cap" part of Whitney's ruling but commented in general on the overall ruling.

"The township has always contended that the zoning inspector's decision rejecting the application to build the Walmart was proper, and this decision leaves her decision on the Walmart application undisturbed, which is the result the township urged the court to reach," said Scott Campbell, attorney for the township.

Both attorneys said they were studying Whitney's June 11 judgment and declined to comment further.

If either party appeals Whitney's ruling, the case would go to the Ohio Fifth District Court of Appeals. The parties have until July 13 to appeal the decision, Campbell said.

Whitney sent the original case back to the Liberty Township Board of Zoning Appeals to accomplish such tasks as providing "documentation of the legal basis for the 500,000-square-foot commercial limit."

The BZA responded by holding a series of hearings and, in October 2008, for a second time denied a permit for Walmart.

The development plan for the Wedgewood Commerce Center was approved by the township in 1991.

bbutcher@thisweeknews.com