Last Updated: Jun 6th, 2014 - 11:41:34


Judge chops down Kroger lawsuit
By Blake Belden, staff writer
Jun 5, 2014, 14:25

COLONIAL HEIGHTS —  Popular grocery chain Kroger has been dismissed of their involvement in a lawsuit filed by two Colonial Heights residents who would be future neighbors of the store’s proposed construction on the property of the old courthouse.

Dennis and Lou Jean Livingston filed a lawsuit in March that aims to nullify ordinances drafted by the city of Colonial Heights, citing that the ordinances inappropriately rezoned the old courthouse property (from residential-office to general business) and were constructed outside of the necessary legal boundaries to do so.

The two ordinances in question were voted on by City Council in January and February to allow for the rezoning and development of the Kroger at the former courthouse.

The lawsuit also claims that the Livingstons, who live at 500 MacArthur Ave. right behind the former courthouse on Temple Avenue, will be negatively impacted in a number of ways by the new Kroger including increased traffic, light and noise pollution, parking lot runoff and an overall drop in their property value.

The lawsuit listed the City of Colonial Heights, City Council and Kroger Limited Partnership each as defendants in the case, but following a hearing in Colonial Heights Circuit Court on Wednesday,  Judge Westbrook Parker ruled that the evidence was not sufficient to continue a case against the grocery store chain.

In addition to dropping Kroger from the defense, Parker also approved the demurrers of two allegations listed in the lawsuit and withheld a ruling on a third so he could take it under further advisement and make a more knowledgeable ruling on the matter.

A demurrer is a plea, in this case by the defendants, to dismiss actions in a lawsuit on the grounds that regardless of whether the alleged evidence is true or not, there is still no legal basis backing the lawsuit.

The original complaint drawn up by the plaintiffs alleged four separate violations that occurred through the Kroger development planning process: 1) the agreement with Kroger was made without any proper public notice 2) illegal contract zoning 3) illegal spot zoning 4) unconstitutional special legislation that only benefits a single entity.

Prior to Wednesday’s  hearing, the plaintiffs had voluntarily dropped the allegations of count 1, after evidence was offered to the court demonstrating City Council’s advertisement of multiple public hearings in a newspaper.

Judge Parker sustained demurrers on allegations 3 and 4, and withheld a decision on allegation 2 which will be heard on July 16.

Robert Allen, an attorney representing the Livingston’s, made a motion before the court that if  any portion of the demurrer was sustained, that the plaintiffs be given a period of time to amend the complaints.

“My clients are obviously disappointed, but there remains a claim for unlawful contract zoning,” Allen said following the court’s decision on Wednesday. “This development was opposed by many citizens and I am proud of Mr. and Mrs. Livingston for having courage to challenge the rezoning.”

The plaintiffs argued that the actions taken by the city in the Kroger agreement excluded the public from the rezoning process, therefore demonstrating illegal contract zoning.

City leaders and Kroger officials held a press conference on Sept. 6, 2013, in front of the courthouse to announce the development plan, which includes a 90,000-square-foot store and a fuel center. This was the first time that many people heard of the proposal, although public notices ran in a local newspaper on Aug. 31 and Sept. 6.

The first public hearing related to the Kroger plan was held at City Council’s regular meeting on Sept. 10, where the council unanimously approved a motion for the city to enter into negotiations with Kroger to sell the property for $2.6 million.

Allen argued that this hearing was only about selling the property and had nothing to do with the rezoning of the property.

Allen said that Colonial Heights had already agreed to execute the contract with Kroger in November.

The agreement between Kroger and Colonial Heights had been fully executed by all parties by Dec. 5, however the first public hearing on land use ordinances was not held until Jan. 14 of this year, Allen said.

“The public’s opportunity to be heard were rendered meaningless,” Allen said, claiming that the city was already contractually obligated to rezone the land prior to the completion of the appropriate legislative process, thus violating the laws related to contract zoning.

John Conrad, an attorney representing the City of Colonial Heights, said that the complaint fails to provide sufficient evidence that the city violated any statutes, and that “there is no beef in this hamburger.”

Conrad said that it is not contract zoning when the city goes through “every procedural hoop,” and that the city properly did everything that it needed to do within the legislative process in regard to this agreement with Kroger.

The contract may have been literally designed in a non-public forum, but it “saw the light of day” when it needed to, Conrad said.

John Walk, Kroger’s attorney, said that if the plaintiffs want to pursue the lawsuit, they must amend the written complaint because their argument was much different in court than what was written on paper.

In regards to the judge’s ruling to dismiss Kroger from the lawsuit, Walk deferred any statements to a representative from the company, who had not responded for any comment by press time.

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