City sued by Walmart opponents, again

Opponents of a new Walmart are suing the City of Sioux Falls for what they say is a failure to enforce a voter-approved law before signing off on the new big box store.

When voters in April 2014 approved rezoning land at 85th Street and Minnesota Avenue from agriculture to commercial, it opened the door for a new 185,000-square-foot Walmart Supercenter to move in. Language in the ballot measure, Referred Law 4, stipulated a conditional use permit be approved before starting construction.

With Walmart planning to break ground in the coming weeks and no conditional use permit issued or hearings for one set, Sioux Falls lawyer Joel Arends said Tuesday the city is neglecting a law established in the Walmart vote.

"We absolutely respect the voters when they said they wanted to have growth and development at the intersection of 85th and Minnesota. But what they also said was they wanted a conditional use permit before that growth happens," he said.

Plaintiffs in the suit are Bonita Schwan, Dan Wray and Gale Wray, all owners of properties near the planned store.

During the same election when voters signed off on using 85th Street and Minnesota for commercial use, the city's new Shape Places zoning ordinance, aimed at streamlining the rezone process, also gained passage. That new ordinance, according to the City Attorney's Office, did away with the 1983 zoning ordinance that Referred Law 4 was crafted under.

"This is another one in a long line of lawsuits that are trying to stop the Walmart at 85th and Minnesota," said Paul Bengford, with the Sioux Falls City Attorney's Office. "They're just repackaging the same arguments over and over again."

In 2013, opponents of the planned Walmart unsuccessfully sued the city over the way the 85th Street and Minnesota Avenue lot was annexed into the city. Last year a suit was filed contesting the ballot language and election results.

In a September 2014 decision, Circuit Judge Larry Long threw the case and in his memorandum wrote: "Shape Places, if adopted, would eliminate the 'conditional-use permit' process" required under the city's previous zoning ordinance.

Bengford said the litigants in the newest case, like the others, expect the city to adhere to an ordinance that no longer exists.

But for Arends and his clients, they contend three items were approved by voters in April 2014: the Shape Places zoning ordinance; using 85th Street and Minnesota Avenue for commercial development; and a requirement for a conditional use permit for Walmart's proposed store.

"When there are conflicting statutes, courts have a duty to … reconcile that," Arends said. "That's what we're asking the court to do."

Walmart representatives did not respond to requests for comment.