The court will hear Liberty Township's appeal of the September 2008 decision of U.S. District Judge Algenon Marbley in the Wedgewood Limited Partnership lawsuit against the township.

The federal case was filed in 2004 by the partnership's president, Charles Ruma, after the township denied the developer a permit to build a 220,528-square-foot Walmart Supercenter at 10600 Sawmill Parkway, in the commerce center. Wedgewood is the site's developer.

The township is appealing several parts of Marbley's decision including:

• Stopping the township from enforcing a 500,000-square-foot commercial cap on the entire commerce center, attorney for the township Michele Noble said earlier. The cap was used as one of the reasons the township denied the zoning permit.

The township said the Walmart would exceed a 500,000-square-foot limit of commercial use that applies to the entire commerce center. Wedgewood argued that the limit applied to only three subareas of the center.

Marbley agreed with Wedgewood's interpretation. His ruling said the township could not enforce its definition of the 500,000-square-foot limit on commercial development in the commerce center.

• Finding that Ruma's constitutional rights were denied.

The township's actions that Marbley said violated Ruma's constitutional rights occurred when trustees issued a January 2004 public statement and instructions to the zoning department regarding future administration of the commerce center's development plan, which dates to 1991.

Marbley ruled such new instructions, for a plan that was already approved, are considered a violation of due process. That ruling permits Wedgewood to seek damages from the township.

Such a zoning change would require hearings, Marbley wrote, but no hearings were held.

"The township is saying ... there's no damages from the denial because it would have been denied anyway," Noble has said.

Wedgewood attorneys are asking "the court of appeals to affirm (Marbley's) decision," Wedgewood attorney Bruce Ingram told ThisWeek Monday.

A different lawsuit between the township and Wedgewood also continues in the Ohio Fifth District Court of Appeals. Both parties are appealing a June 11 decision of Judge Duncan W. Whitney in the Delaware Common Pleas Court.

Both sides are in the process of filing briefs, a court spokesperson said.

Whitney said Wedgewood's fight to obtain a zoning permit from Liberty Township was moot because Walmart abandoned plans for the Wedgewood site.

Ingram has said, "Our primary argument (in appealing Whitney's June 11 ruling) is that the court should not have dismissed the case as moot. Wedgewood is entitled to a zoning permit for the building they submitted to the zoning department, whether it's a Walmart or not."

Whitney also ruled last month that the "floating cap" concept of Liberty Township's 500,000-square-foot limit on commercial development in Wedgewood Commerce Center cannot be enforced.

Township attorney Bill Loveland has said, "The (township's) issue is with Judge Whitney saying that he doesn't believe there is a 500,000 square-foot cap. That's the only portion of the ruling that concerns us. Walmart's been gone from the picture for a while and we've known it is moot."

Loveland said, "We believe that Judge Whitney has given an advisory opinion (about the square-foot cap) that we're concerned about."