Wal-Mart suit transfers to new judge

rpulley@lsjournal.comNovember 20, 2013 

The lawsuit delaying construction of a new Wal-Mart Supercenter in south Lee’s Summit will have a hearing before a new judge this month.

Judge Kenneth R. Garrett on Nov. 26 will hear arguments related to a motion by Lee’s Summit and Wal-Mart to dismiss the suit, said Christine Bushyhead, a lawyer who represented Wal-Mart in the rezoning.

A judge who was retiring, Michael Manners, dismissed the suit over rezoning for the store, but plaintiffs Richard and Paula McMillin responded with a motion to vacate that dismissal.

The case was transferred to Garrett.

The McMillins are suing the City of Lee’s Summit and Wal-Mart Stores Inc. through its representative the Mitchell, Kristl & Lieber law firm, saying rezoning to allow building the store damages their property values. The suit also alleges that correct procedures to approve the zoning weren’t followed by the city. The defendants contend the McMillin’s property is not near enough to the Wal-Mart site to be affected. And they said the city followed correct procedures.

The store site is at 3410 SW Market St.

In the suit, the McMillins contend that at a Feb. 7 City Council meeting because an initial vote on whether to draft an ordinance for the Wal-Mart rezoning failed, it constitutes a denial that was final according to the city’s Unified Development Code. When the City Council discussed the issue in subsequent “round table” that night it voted to reconsider. The council approved the rezoning on March 7, but the McMillins contend that vote wasn’t valid because neither Mitchell, Kristl & Lieber nor Wal-Mart Stores Inc. had filed a new zoning application. The suit says the failure to process a new application violates state law concerning rezoning of property and the mandatory procedures.

The suit further says that filing a new application couldn’t occur for a period of 60 days and then zoning has to go through the procedures required by the ordinance and state law.

The council in February voted on a motion to draft an ordinance, not voting on the actual zoning ordinance, but then reversed itself during under its rules for conducting meetings, deciding to have staff draft an ordinance that was to be read and voted on later.

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