Last Updated: Apr 27th, 2015 - 11:04:56

Neighbors file lawsuit over Kroger project
By By JAMES PEACEMAKER JR., managing editor
Mar 15, 2014, 10:21

COLONIAL HEIGHTS — Neighbors of the proposed new Kroger grocery store to be built at the location of the old courthouse have filed a lawsuit against the city and the grocery store chain.

The lawsuit was filed Monday, March 10, in Colonial Heights Circuit Court by attorney Robert J. Allen on behalf of Dennis J. Livingston and Lou Jean Livingston, who live directly behind the Kroger site at the corner of MacArthur and Hamilton avenues.

It lists the City of Colonial Heights, City Council and Kroger Limited Partnership as defendants.

The lawsuit seeks to have ordinances related to the development rendered null and void, and grant further relief, including paying damages and attorney costs.

The lawsuit states that the city and Kroger worked together to amend the city’s Comprehensive Plan and change the zoning for the site to allow for a 90,000-plus-square-foot grocery store in an area surrounded by a residential neighborhood.

“In doing so, the Defendants have failed to provide proper public notice and opportunity to be heard afforded to the Citizens by the laws of the Commonwealth of Virginia,” the lawsuit states.

The lawsuit says “this action represents illegal spot zoning and contract zoning that serves the interest of a single landowner, i.e., Kroger, rather than furthering the general public welfare. ... Further, the zoning ordinance represents unconstitutional special legislation because the ordinance benefits a single entity, Kroger, to the detriment of all others, including other persons who may wish to purchase the former Colonial Heights Courthouse property.”

The lawsuit says the Livingstons will be negatively impacted by the development because of vehicle traffic, noise and light pollution, a degraded view from their property, and the potential loss of value in their home.

The lawsuit claims that the deal with Kroger was done before the public had a chance to give their input.

Listed as Exhibit A with the lawsuit is a copy of a press release issued by the city on Sept. 6 saying, “After years of wondering what would come of the soon-to-be-vacated former site of the Colonial Heights Courthouse, Kroger Mid-Atlantic and the City of Colonial Heights are proud to announce plans to redevelop the site, located in the downtown area of the city, with a brand-new state-of-the-art Kroger Store.”

City leaders and Kroger officials held a press conference the same day in front of the courthouse to announce the plan. This was the first time many people heard about the possible development, although public notices ran in an area newspaper on Aug. 31 and Sept. 6.

The first public hearing on the Kroger development was held four days after the press conference at City Council’s regular meeting on Sept. 10. Council unanimously approved a motion for the city to enter into negotiations with Kroger to sell the property for $2.6 million.

More than a dozen people voiced their opposition to the development at the meeting, including Lou Jean Livingston.

“My husband and I are .... concerned about the traffic increase that we believe Kroger will bring in. We already have a serious problem on Hamilton with speeders, people driving their cars with their stereos blasting late at night. Enforcement is not taking place,” she said.

Livingston said she had nearly been hit by cars a few times while walking.

“It doesn’t matter how careful I am, how many times I turn my head to watch. I can cross the street over Prince Albert walking my dog. I’ve had drivers come zipping around on Hamilton off of Temple and I’ve come within inches of getting hit. I feel Kroger being placed there is just going to increase these instances,” she said.

Noise, light and air pollution were also among Livingston’s concerns.

“We’re also concerned about the pollution that is going to increase from the semis delivering to Kroger. Those smokestacks are 12 feet. Well that exceeds that 8-foot buffer, that privacy fence that you are speaking of,” she said.

Livingston said the public was being ignored by council.

“I really don’t feel that all of our concerns are under consideration as a neighborhood,” she said.

The lawsuit also states that a Dec. 4 Planning Commission meeting and the Jan. 14 City Council meeting were not properly advertised.

Virginia Code states, “The local planning commission shall not recommend nor the governing body adopt any plan, ordinance or amendment thereof until notice of intention to do so has been published once a week for two successive weeks in some newspaper published or having general circulation in the locality.”

The lawsuit claims the public notices that were published were misleading, claiming the store would be approximately 87,000 square feet, and did not mention the fuel station with nine pumps.

The lawsuit states that “Even of the Defendants had properly advertised and given lawful notice, the public’s opportunity to be heard was rendered meaningless by the Defendants. Pursuant to its representations and warranties in the Agreement that the Comprehensive Plan and Zoning Ordinance would be amended to allow the Kroger Development, the City Council effectively contractually agreed to ignore any and all opposition from the public.”

The old courthouse property was previously zoned for residential and office use. It had to be rezoned for general business and needed a Comprehensive Plan amendment. The agreement with Kroger to buy and develop the property was contingent upon the changes, City Attorney Chip Fisher said at the September City Council meeting.

The lawsuit also states that conditions in the agreement with Kroger, such as buffers, light restrictions and limits to hours of operation, “will arguably be extinguished” once the city and Kroger close the deal. The lawsuit states the city should have used conditional zoning rather than a private contract.

The city manager had been giving regular updates about the project at City Council meetings, but it was announced March 11 that those would end due to the lawsuit. City Council was advised not to talk about the Kroger project further.

City Attorney Chip Fisher said Friday that he did not see merit to the lawsuits’ claims, but he acknowledged that courts can me unpredictable.

He said that even if the plaintiff wins, City Council could just make the necessary changes and be ready to move ahead with the project in a couple of months.

Fisher said there was “nothing fatal to Kroger developing the project.”

Contacted by phone Thursday evening, Dennis Livingston said they could not talk about the lawsuit.

A court date has not yet been set.

Kroger originally planned to close on the project March 11, but had asked for a three to four month delay before the lawsuit was filed.

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