Market Pointe to trial or the ballot?

[Coyote]

Market Pointe in judge's hands

In the first court hearing for the Market Pointe lawsuit last week, both sides got a surprise glimpse into Judge George Thompson's stance on the case.

"I don't have much question that the plaintiffs have standing in this case," Thompson said at the conclusion of the short hearing Thursday morning in Sarpy County court.

Attorneys for both sides presented a combined 21 exhibits of various kinds to the judge. The hearing was designed to give Thompson all the necessary information for him to rule on the city's motion for summary judgement, which was filed in late August.

A summary judgment would effectively cut out the trial part of the lawsuit. Thompson has the option to grant the summary judgment, or he could send the case to trial.

Eleven neighbors from the Hickory Estates neighborhood adjacent to the proposed 75-acre commercial development at 72nd Street and Giles Road filed a lawsuit in August against the city, the developer and landowner.

Some of the plaintiffs expressed their surprise after Thursday's hearing at Thompson's comment that they have a case against the defendants.

"This is good for us," said Joni Woodruff.

Despite the fact the neighbors have sued over the approval of the development, Papillion City Administrator Dan Hoins said nothing is stopping the developer, the R.H. Johnson Company of Kansas City, Mo., from beginning site work on the land.

"The developer has the authority from the city at this point to begin the development today," Hoins said after last week's hearing. "That means they could go out and start moving dirt today."

Attorneys for both sides of the case recently filed briefs in Sarpy County Court in which the city makes its case for summary judgement and the plaintiffs respond to the city's arguments.

"Through this litigation, plaintiffs seeks to revisit decisions made by elected and appointed officials of the city," wrote City Attorney Mike Schirber.

"They ask this court to reverse decisions that have been committee to city officials by statute and ordinance. They lack standing to do so. Moreover, the law clearly prohibits what plaintiffs attempt here. Where zoning ordinances are changed after notice and fair public debate, and for legitimate public purpose, the courts are not to interfere."

The plaintiff's attorney, Mike McClellan said in his response the defendants have not correctly assessed applicable case law to their arguments.

"The defendants do not attempt to 'pierce the pleadings' by their motions and their collective brief, but are attempting to evade the pleadings and the significant factual issues in this case by pursuing such a drastic motion without any discovery," McClellan wrote in his brief.

The brief from the defendants reflected a less restrained tone than their answer to the initial lawsuit, which was required within 30 days of being served with the suit.

"The zoning commission and city council both heard and considered the public's testimony making their decisions to rezone Market Pointe," wrote Schirber. "The neighbors' dissatisfaction with the merits of the decision should be addressed at the ballot box, not at the courthouse. Nebraska law requires nothing less."

McClellan's answer to Schirber's brief instead focused on proving there are too many factual questions remaining for the court to decide the case in summary judgement.

Judge Thompson did not say last week how long it would take him to issue a ruling. Hoins said he would expect some kind of opinion within two to three weeks.

[eomaha]

Neighbors suing to block Wal-Mart win trial delay

Neighbors who sued the City of Papillion to stop a Wal-Mart shopping center won a nearly two-month delay Wednesday in the trial of the lawsuit.

The delay raises doubts about whether the developer would have time to grade the 74-acre site at 72nd Street and Giles Road before winter.

The judge has denied the neighbors' request for a temporary restraining order to prevent construction, but the developer would take a risk by moving ahead before the lawsuit is resolved.

The trial opened Wednesday with the introduction of more than 60 city documents as evidence. There was no testimony on the key issue in the case: whether the Papillion City Council's vote approving the project was arbitrary and capricious.

Sarpy County District Judge George Thompson initially brushed aside the concern of neighbors' lawyers that he had rushed the case to trial.

Attorney William Gast complained that the case, filed July 23, was in "extremely high gear" and there had been no time to review documents and interview witnesses ahead of time.

"We're having to do the impossible here," Gast told the judge.

Mike Schirber, the Papillion city attorney, told the judge he was concerned that the neighbors' attorneys were manipulating the system to force a delay.

He said the city has about $2 million at stake, the city's estimate of potential annual tax revenue from the shopping center, which would contain a Wal-Mart Supercenter, Kohl's department store and smaller shops and restaurants.

Steve Delaney, attorney for the developer, said granting neighbors a delay could keep the developer from grading the shopping center site this fall.

"They know that grading can only be done at certain times of year," Delaney said. "It is something that's harmful to our client to have this delay."

But after reviewing lawyers' schedules and his own, Thompson agreed to postpone the trial until Nov. 16.

Developer Owen Buckley, president of the R.H. Johnson Co. of Kansas City, Mo., declined to comment on the delay.

[Will]

This is stupid. 11 people who don't like wal-mart are sueing the city.
if the city allowed a target to go in they would just grip about it, instead of sueing. If the casinos win the election in Nov, can the gambling with the good life people sue to stop them from building? If the courts allow this to go though then they are welcoming all kinds of stuff like I don't want that McDonalds to be built, it is an eye sore, or it will increase traffic, or decrease property values. This is stupid. If the leaders voted to allow market point then the matter is over shut up or move out.

[omahaopinions.com]

Yep, that's the risk you take when you buy a home that's across the street from undeveloped land. Ya don't know what's going to be built there!

[eomaha]

Precisely why I buy homes in established neighborhoods (I'm actually surprised there wasn't more resistance when the Super Walmart went in at 180th and West Center... where you'll find considerably more affluent demographics (and they ended up with the painted concrete look). I find it rather funny too... when people who build a house right up against a street like, say, Pacific... are in shock when they discover 15-20 years down the road that the city is going to widen it to 4 lanes.

Keep in mind Will... you can't just sue... to sue because you don't like it. This lawsuit is based on the contention that the city of Papillion didn't properly follow procedures when they rezoned the property to allow the development. At BEST... they will just slow the development down. I suppose the possibility exists that R.H. Johnson...the developer... could decide to give up and locate elsewhere. It is a prime location however... I suspect they'll ride this all out.

[Rob]

My mother like most people who built next to the proposed Wal-mart and Kohl's built there due to the fact that it was zoned residential. You cannot blame the homeowners who built thinking that there would be more residential next door rather than what has been proposed.

Most commercial development in the Papillion area was concentrated on 84th...thus, why would homeowners who built at the time (along 72nd Street) think that the city would approve such a large commercial development outside of that corridor (84th Street). If you look now...84th is deteriorating over time with Albertson's closed and Walmart closing (if they move to 72nd). The city's of Papillion and LaVista are lacking coordinated efforts to keep this area filled and viable.

In the end...I think the developer made some great concessions to the citizens as far as design and asthetics...but as Jeff said...the lawsuit is more about Papillion's role in rezoning the property without review. I understand the need to add to city coffers with taxes from commercial properties...but at what cost? The entire metro area is now...finally...begining to understand the role of planning for growth while asking developers to consider the asthetics of the neighborhood as well.

[eomaha]

Of course undeveloped land is rezoned all the time... certainly the possibility of a commercial property finding it's way onto a corner like 72nd and Giles has to be considered a possibility.

I have a friend who built at the edge of Tiburan... beautiful home next to the golf course. But behind him is a cornfield. Who knows what could be put on this property in the years to come. It could be the next major regional mall for all we know.