Wednesday, March 10, 2004
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Wednesday, March 10, 2004 |
| PTC’s big-box ordinance faces judge March 29 in Target lawsuit By J. FRANK LYNCH The lead attorney for the developer suing Peachtree City for the right to build a Target at Kedron Village said Monday that the city’s “big box” law is unconstitutional because it discriminates against a specific segment of the retail industry — large-scale discount department stores — without distinction. That’s among the chief arguments Attorney George Rosenzweig said he’ll make on behalf of Faison and the Target Corp. later this month, when the legal standing of whether Peachtree City’s ban on big box stores finally is considered by the courts. On Monday, Fayette County Superior Court Judge Christopher Edwards set aside the week of March 29 to hear formal testimony in a lawsuit brought against the city in November by Faison. The North Carolina company was asking the court to establish its “vested rights” to build the 125,000 square-foot Target store and 145,000 square feet of additional commercial space in the final two phases of Kedron Village. Phase I, completed in 1996, consists of a Kroger store and several smaller retailers. The big box ordinance limits such stores to a zone near Wal-Mart and Home Depot, and then dictates that they must not be larger than 32,000 square feet. Faison insists it has a right to build Target at Kedron because a large-scale “big box” retailer was included in the original site plans for the commercial center when it was first laid out in the early 1990s. City officials and nearby homeowners have said they don’t oppose Target per se, just the enormity of the proposed expansion and the potential traffic it will create. In October, the city’s Planning Commission denied Faison’s site plan 4-0 after a heated four-hour meeting packed with angry residents. Fearing the City Council wouldn’t overturn that denial, Faison filed suit against the city in late October. In his first hearing in the case on Feb. 24, Edwards ordered Faison back before the council to exhaust its appeal process. On Thursday, after an hour of debate, a unanimous City Council said ditto to the Planning Commission’s denial. Monday’s hearing was scheduled to argue Rosenzweig’s claim that Peachtree City’s law, which refers specifically to big box “tenants,” did not apply to the planned Target store. The Minneapolis-based retailer traditionally owns its buildings, said Rosenzweig. Edwards consulted Webster’s Dictionary to distinguish between “tenant” and “occupant.” Laurel Henderson, representing the city, admitted that the ordinance itself might have been written clearer, but the intent was still there. Edwards eventually agreed, ruling after a brief recess that no matter the language, the city’s ordinance writers intended the law to apply to all such retailers, no matter who owned the building. The constitutionality question is the last recourse for Faison, but nobody present Monday seemed daunted or unprepared to fight the challenge to the law. “The distinctions of equal protection and due process applied to one retail business and not another is what makes this case distinctive,” Rosenzweig told reporters after Edwards adjourned the session. He said the ordinance has language limiting stores such as Target or Kmart, but leaves open “stores of unlimited size” like B.J.’s Wholesale Club and others. “That’s just arbitrary,” said Rosenzweig. John Hedge, a spokesman for the Kedron Hills Homeowner’s Association that has aggressively fought plans to extend an access road from their neighborhood directly to the Target store, said the latest victory was encouraging. “We still hope for a compromise,” he said. “With a downsized building, and a downsized parking area, we really could live with Target, but at the right size so that it doesn’t put us in harm’s way.” Mayor Steve Brown expressed confidence that Edwards would make the right decision in the case. “He’s one of the best judges in the entire state, one of the most honest judges we have,” said Brown. “No matter how it turns out, I think both sides are going to feel like they got a fair shake.”
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