Attorney fears Wal-Mart decision a bad precedent

A lawyer representing people concerned about the design of the Wal-Mart planned for Dixie Highway and Broadway fears other companies will expect exemptions after a city commission approved a plan for the retail giant even though the plan does not meet code.

"There are other proposals that will come down the road for other projects and other buildings," said attorney Steve Porter, who represents several local architects, a preservation group and some Russell neighborhood residents. "It'll be easy for them to say 'you did it for Wal-Mart, you should do it for us.' "

RELATED STORY | Wal-Mart appeal goes to city board Feb. 16

Despite previously encouraging Wal-Mart to redesign the plans at the location, the Louisville Metro Planning Commission voted 8-1 Thursday to approve a development plan for the superstore. The vote came after hours of emotional comments and testimony from both sides, although much of it was from ministers and others who want the retail and estimated 300 jobs in western Louisville at a site that has sat vacant for years.

"The commission needs to be able to rise above emotion and the emotion here was pushed by the idea that Wal-Mart would back out if they didn't get their way absolutely and I don't think that's true," Porter said. "… I think Wal-Mart would have gone along and built."

"I have seen many companies make those kind of threats and when told they have to do it a certain way, they go ahead and do it."

Wal-Mart officials, however, indicated they would live or die with the design as submitted, contending that it was the only layout that optimized operations — and profits. They also argued that, since the original plan was submitted early last year, many changes have been made in the store design — many of them to comply with city planner recommendations, including trees, drainage controls, facade and exterior material modifications.

The Board of Zoning Adjustment will meet Feb. 16 to hear requests for two waivers from Wal-Mart, for the respective setbacks from Broadway and from Dixie Highway. Board members will vote on the same plan approved by the planning commission on Jan. 29, said Jessica Wethington, spokeswoman with Metro Government's Develop Louisville department.

Every site is reviewed on its own "merits and circumstances," Wethington said when asked about Thursday's vote.
"So it's not uncommon for the planning commission to grant waivers and not uncommon for the planning commission to deny waivers. It's just based on the site," she said.
City staff was printing out notices about the zoning adjustment board meeting on Friday. Wethington said those will be sent out to "neighbors shortly."
After the zoning adjustment board, the project would move into the construction review process, she said. There will be a number of permits involved because of the scope of the project, Wethington said.
Porter said they will make their case again before that panel. He repeatedly emphasized his clients are not opposed to the Wal-Mart or it being located at that site, but wanted the retail giant to follow the same development code as other businesses.

"It's a different group of people and I think it's always a possibility," Porter said of the possibility of a different vote by the zoning adjustment board.

Preservationists are concerned about the design to build the store 600 feet back from Broadway with most of the 600 parking spaces in front of the store, which is contrary to the local development code that calls for buildings up to the street.

Porter said the concern about other companies possibly not expecting to have to follow code is why he and his clients offered the compromise — allowing Wal-Mart to build where it plans now, but building space for three or four smaller businesses at the front of the property closer to Broadway.

"Wal-Mart could make that happen very easily," Porter said of leaving the box store farther back on the property and allowing space for smaller businesses at the front of the property to remain consistent with regulations. We could all be happy."

"Broadway is a very important street just as other traditional marketplace areas. The building should be on the street."

Architect David Proffitt, the sole commissioner to vote against the design, said Thursday he was "scared" that the design contrary to the development code might have ill long-term effects on the Broadway corridor.

"The waiver is not warranted. Something different could have been done," he said. "Design matters, and design was ignored."

Porter said Friday morning he has not had an opportunity to meet with his clients and determine whether or not to file a legal challenge.

"We haven't made any decision," he said.

A spokesman for Mayor Greg Fischer, who supported the design and hoped for commission approval, referred comment to the planning commission. A spokeswoman for Develop Louisville, which oversees planning for Metro Government, could not immediately be reached Friday morning.

There was overwhelming public support for the store, with the ministers and the mayor speaking in favor of it. Supporters held an emotional vigil at the proposed site on Wednesday.

The city has conditionally committed $2.3 million in financial incentives for the store, which Wal-Mart said will cost about $25 million.

Reporter Sebastian Kitchen can be reached at (502) 582-4475. Follow him on Twitter at @writeonsk.