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

Judge dismisses lawsuit over Kroger
By James Peacemaker, Jr. Managing Editor
Jul 17, 2014, 15:20

COLONIAL HEIGHTS — A judge dismissed a lawsuit filed against the city by neighbors of a proposed 90,000-square-foot Kroger grocery store on Temple Avenue.

The lawsuit was filed March 10 in Colonial Heights Circuit Court 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.

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

The lawsuit alleged that the city staff agreed to a contract before the City Council had a chance to vote on it and said 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.

It originally listed the City of Colonial Heights, City Council and Kroger Limited Partnership as defendants, but Judge Westbrook Parker removed Kroger from the lawsuit during a hearing in June. Three out of the four allegations in the case were either dropped by the plaintiffs or dismissed by the judge as well.

The only charge left to be heard was whether this was a case of illegal contract zoning.

Meanwhile, the defense also wanted the case dismissed because they said the plaintiffs didn’t have a legal standing, meaning they were not harmed more than the general public.

During the final hearing Wednesday, the plaintiffs’ attorney, Robert Allen, argued for standing in the case and explained how the plaintiffs would experience harm.

“Their property rights will certainly be affected,” he said.

Allen said the direct proximity to the development make it clear that traffic, noise, light and runoff will affect them more than the general public.

“It would be unprecedented” if no standing was found in this case, he said.

He wanted a chance to amend the charges and find other ways the plaintiffs were harmed if standing was found in the case.

Allen argued that this was a case of illegal contract zoning, saying that city staff made the agreement before the property was rezoned, and that City Council “just went through the motions.”

“It forced the City Council’s hand,” Allen said.

City Manager Thomas Mattis and City Council members Diane Yates and Kenneth Frenier were among the few people in the courtroom Wednesday to listen to the case.

The attorney representing the city, John Conrad, argued that the case was flawed. He said the plaintiffs don’t have legal standing and that the case was based on flawed evidence.

Conrad said the city manager and the mayor do not speak for City Council, so the public  announcement about an agreement made before City Council’s vote was not legally binding.

He said the city staff only negotiated the agreement.

Conrad also said that restrictions that came with the sale sufficiently limited potential damage to neighbors. A buffer zone, a fence and limit on operating hours were among them.

“Their burden is to show … that there will be some harm to their property. They haven’t met that test,” he said. He said proximity alone is not enough.

Conrad said the arguments about light, noise and runoff are made in every zoning case and are typically rejected.

He said in this case the Livingstons’ property is closer to Temple Avenue than it is to the Kroger store.

“We are talking about a parking lot here,” Conrad said.

He said they don’t know for sure how traffic will go, and said the Kroger was downhill from the Livingstons’ property, so runoff would not be an issue.

Judge Parker sided with the defendants in the case.

“I have everything before me. … I have read all of the minutes,” he said.

He said he had to do a lot of research on contract zoning, specifically for this case.

“This is not contract zoning. I am going to dismiss the case,” he said.

Outside of the courtroom after the case, Allen declined to comment about the possibility of appealing the decision or further action, saying he needed to talk to his clients.

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