Kind of hard to break ground when you have lawsuits pending

1. I’m thinking the Walmart will not happen. They’re not going to wait 4 years (usual lawsuit term) and they’ve suddenly realized there’s to many Walmarts. The northwest Walmart is quiet. It’ll eventually become profitable when the city finally spreads that direction. Why not a store further south nearer the interstate? Then it’s Ag land they can rezone and they don’t have to tolerate the ego from Sioux Falls city hall.

2. This is actually an interesting question I’ve pondered over the last few years. The original rezone of this property was done under the 1983 ordinance, which required a conditional use permit for a use like this. But it never happened because the rezone was referred. When the election took place, the rezoning was approved to make it C-4. And, Shape Places was adopted, which doesn’t require a conditional use permit hearing. It could go both ways really, and I have no idea what a judge might rule. But I think both sides have arguments.
   Some would say, and I’d agree, this is the neighborhood putting up another road block and a stall tactic. That being said, I don’t fault people for using legal means at their disposal to address a grievance. That’s their right. They are exercising their right to appeal and looking for due process, and to the extent the law allows, they should get it.
   Under Shape Places there are more regulations and quite a bit that is automatic that a conditional use permit would have added anyway that the old ordinance didn’t allow. And presumably the idea of the conditional use permit is to have one more shot to kill it entirely, and, to have another hearing that you can try to legally appeal. Which again is their right.

   The city is going to say a few things I’m sure. First, they will say the voters knew what they were voting for, that they weren’t just voting for a rezone, they were voting for a Walmart so the spirit of what they approved was a Walmart, not just a generic commercial parcel. And, they will argue that Shape Places removed the conditional use permit, so today in April 2015 we can’t legally require Walmart to go to a conditional use permit when the ordinance currently in effect doesn’t require one. I’m not taking a position on those arguments, but that is what they will argue I’m quite sure.
   On the neighborhood side, what they will argue I think is that what was voted on was a rezone that occured under the old ordinance. And under that old ordinance you’d need a conditional use permit for large structure, so it should be required. And they may have a point. I have no idea which way a judge may rule.
   What the neighborhood could look into and argue was the methodology used to rezone all of the parcels in the city and ask the city to be consistent. As an example, if you had a residential parcel in RS-2 (which allowed single family or a twin home in the old ordinance) they did one of two things.
   1. If there was no conditional use permit approved as of the date Shape Places took effect allowing a twin home on the parcel, it was rezoned RS allowing only single family, because at that point under the old ordinance that is all you could do without a conditional use permit. Without a conditional use permit, no twin home. Having been zoned RS, you’d still be residential single family, no loss to you from before, and you could try to rezone to twin home later under Shape Places.
   2. If you had a conditional use permit approved by the end of the 1983 ordinance for a twin home, they would rezone it to RD (twin home) since you had obtained the legal right under the old ordinance to build a twin home.
   NOTE: There is a lot of confusion about what actually happened mechanically as far as how properties were addressed during the conversion as far as rezoning and what were allowed to get building permits and not. For example something that I learned recently was some concept of ‘substantially completed’ was used in terms of what to permit and not to permit for things like twin homes, and there is no definition of ‘substantially completed’ I know of. So there is confusion and perhaps some issues with that.

   In terms of commercial, take the parcel at 69th and Cliff, the former Walmart proposed location. There was argument from that owner about what to zone this. It was rezoned from C-4 planned commercial, which only allowed a limited building size without a conditional use permit, under the old ordinance, to C-2 (25,000 sq ft building) under the new Shape Places. The city argued that rezoning it to C-4 would be inappropriate, and I agreed, because it would magically change this parcel from a limited building size to a unlimited building size when Shape Places took effect without any public hearing or due process. They were free to try to rezone it to the new C-4 after Shape Places took effect (with a public hearing) and unlimited size afterwards.
   Taking that example, the south side group could argue that at the adoption of Shape Places (whether you take the date of actual adoption or the date the referal vote was canvassed) there was no conditional use permit approved on that commercial parcel. So under the old ordinance they could not have built a Walmart. So they may have a pretty viable argument that there is a due process violation by not requiring the conditional use permit hearing. I’m no judge so I’m not sure what case law there is, if any, on this subject.
   As an aside, I don’t necessarily think they will get what they want in the conditional use permit hearing, but if it should be allowed per due process, it should happen. I’m conflicted about it personally – but when you get into it they definitely have a reasonable argument that should be heard I think. I think if I was that group I’d look very hard at the methodology used to convert one parcel from the old to new zoning district, if it was consistent, and if this parcel is being treated the same way.

3. So the tl;dr version seems to be they believe that because the process originated under a previous law that the process should continue under the previous law. DL’s innuendo aside, isn’t this basically the same case they brought last fall and had thrown out in short order by a judge who saw no merit to their filing?

   The legal process is what it is – I’m not saying they shouldn’t contest – but it seems like a thin argument. The only circumstance upon which they could hope to prevail – a judge ruling that an obsolete and more restrictive law should be followed because it was in effect at the time the request was made – is one that could be easily dispensed of if Walmart were to simply re-file its plans for the property in question.

   Granted, I’m no lawyer but I’m not sure I’d take the word of Annette Bosworth’s old attorney either.

4. Like I said, there is much more to the suit then just the conditional use permit. Hang tight.

5. *grabs popcorn, awaits further excitement*

6. I look forward to seeing the other parts of the suit, it would be nice if the entire complaint is posted online at some point. Would be very curious to see.

   Reading the ballot language again was very helpful. I’m trying to be as fair as possible, whether or not I think it is a reasonable place to put a Walmart. Whether I think it is a reasonable location is irrelevant, the only thing that matters is the law is followed, there is due process, and in this case it isn’t capricious – they aren’t treated differently than any of the other thousands of parcels rezoned with Shape Places. Reading the ballot language and thinking about it more, I’d point out a couple of things.
   The ballot language says it would rezone the property ‘to C-4 with a conditional use permit’. I don’t know what they mean by ‘with a conditional use permit’ here, because it wouldn’t make sense that voters would be approving by referendum a conditional use permit. Voters cannot approve by referendum, nor can someone refer, something that NEVER happened. We never got that far. So I don’t see any way we could be approving a conditional use permit, only the planning commission can, and we never got to that point. So it can’t mean that, and if it did, it would seem obviously illegal. The only other alternative, I guess, is that the city attorney explanation is saying that it would be C-4 commercial with a conditional use permit needed to do a Walmart. Which now they are saying they will not require. Now the complicating part is referred law 3 Shape Places. Had it gone down, and Walmart been approved, we’d be under the old ordinance and we’d be doing a conditional use permit hearing. But Shape Places was approved and therefore conditional use permits went with it, I am sure that is where the city is hanging their hat and what the issue is. The only thing referred was the rezone of the property, not a conditional use permit, it never happened.

   The other part is that the attorney explanation, and the actual ordinance, obviously refers to C-4 Planned Commercial. That only existed in the old ordinance. There is a C-4 in the new ordinance but it isn’t Planned commercial. The old and new C- designations are different. So you can’t argue that this was a rezone to the new C-4.

   Basically at the end of the day for this particular issue I think essentially for me the legal question is was there a violation of due process by saying that there is no conditional use permit required for this parcel by virtue of the vote approving the old rezone and the change to Shape Places. That’s really it I think. And was this capricious, meaning was the city consistent in how it treated similar properties. I guess I’d again circle back to say the 69th and Cliff example, that was rezoned in Shape Places from C-4 Planned Commercial to C-2 under Shape Places as that is the closest apples to apples. They weren’t zoned to C-4 which would have been the functional equivalent of unilaterally granting a conditional use permit to that parcel to do a unlimited size building. There are other factors in play, but its generally the same idea.

   The rezones in Shape Places of parcels with existing parcels was pretty straightforward. Where it got muddy and there are more problems was on vacant parcels an also those with outstanding conditional use permits and/or building permits where construction either had not been started at all or was partially started. The treatment of properties in that particular case raises some serious questions for me, without going into specific examples I know of.

   I may be talking myself into siding with that group the more I think about it, on this issue alone, but I am very interested to see the rest of the arguments.

   As was stated not entirely sure it would lead to a different result, but maybe it should happen as a matter of due process. I also don’t see it as totally outlandish that Walmart could change their mind based on economic factors and conditions, particularly if this drags out much longer.

7. Matters like this is how lawyers make money. The city attorney will delegate to an expensive private firm. They’ll bill taxpayers for 4 years at about 100k per year. Walmart is already pondering other locations. They’ll back out from the city despite a TIF. This is costing taxpayers millions that would be better used in barrel fires next winter for the homeless.

8. Maybe they would prefer to have a group home, half way house or something along that line on that property. I think that would be really funny. Or maybe even a really rowdy bar.

9. It is only when the building permit is applied for that determines the ordinances that apply. they apply today – they are governed by todays ordinances – not those of 1983, or those in effect YESTERDAY. When Shape Places was adapted, the date it went into effect, there was a WHOLESALE rezone of the ENTIRE CITY. The vote on that one parcel’s zoning (referral) – became 100% irrelevant.

10. Just to be a little more clear – the old ordinance – the pre-Shape Places ordinance – is NO LONGER LAW. Those old rules apply NOWHERE today.

11. Greg, they call that ‘Wiggle Room’. And Fiddle wrote that into the ballot language. Confusing? Damn right, that was the intention.

    This suit names ‘Huether’ and when you find out the reason why, it changes the whole dynamic of this case. This isn’t the old suits reformed, trust me on that.

12. is MMM crying over this yet?

13. Why is Walmart unwanted near residential neighborhoods? Just think of the convenience! Or just think about stuff like this:

    http://www.keloland.com/newsdetail.cfm/man-accused-of-offering-teens-in-walmart–money-for-sex/?id=179282

    On Forensic Files TV crime reality show, Walmart is always featured as the store of choice for murder weapons like guns (complete with falsified purchase records) duct tape, zip ties and plastic garbage bags. But they do get kudos for having surveillance cameras. hoo-ray

14. TT, the reason Walmart has such great parking lot security cameras and security patrols was the result of a series of parking lot rapes, assaults and kidnappings. Just what a nice quiet neighborhood wants to be reminded of everyday. Whose convenience is the Walmart being placed for, the perp or the consumer?

15. Security: You got that right!

16. Most violent crimes are committed by family members and acquaintances.

17. Saying Wal-Mart is a gathering place for criminals is like saying the CVS in Baltimore caused the riots.

18. OSFoot: I said it is a place where it criminals featured on a certain TV show tend to buy their supplies for committing crimes. I’ve watched the show for years and can’t recall any other store being mentioned by name so often. Just sayin’

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