Walmart debate rages on in 2012Jan 12th, 2012 | By William Dilella | Category: top story
Walmart store #5674, to be built in Belle Chasse, has been a source of legal contention ever since Moretco filed the paperwork for a shopping center surrounding one of the infamous superstores. Now, claims disputing the legitimacy of Plaquemines’ Parish permitting process, and Moretco’s rights as an applicant, went before Judge Frank Foil, and his decision on that preliminary hearing is due out after January 26.
The permit application at the source of the dispute was delivered just before Plaquemines Parish’s updates to the zoning code. Those changes prevented any commercial structure larger than 25,000 square-feet without the Planning and Urban Development Board’s (PUD) permission.
Those claims boiled over into the preliminary hearing held over a three-day period last week, heard by Judge Foil—following the recusal of the two 25th Judicial District Judges from the case.
That hearing, previously delayed from September 20 and 21 of last year, was the result of the April 18 petition for injunction re-filed by Moretco after talks between the Parish and the company once again fell through on the proposed shopping complex to be located at Woodland Highway and Highway 23 in Belle Chasse.
Before even going into the courtroom, Parish attorneys asserted that though Moretco managed to submit building permit applications in due course, those applications do not constitute an actual permit, and therefore carry none of the rights expected with such a document.
Meanwhile James Garner and the rest of the legal team representing Moretco argued that the rules being set down by the Parish—including the recently created Planning and Urban Development Board (PUD)—were specifically to block this development, and at best were “arbitrary and capricious.”
“It’s a fundamental rule [of law] that a government must establish a standard,” Garner said. “Citizens and boards must know, with certainty, what their rights are.”
But Garner said that the moratorium imposed, to block developments more than 25,000 square-feet, only hints at these ideas, and has no definitive measure of power, in his opinion.
“There is no yard stick in there,” Garner said. “[The PUD] had unbridled discretion…how do you measure that? You can’t. That’s why this moratorium is constitutionally vague.”
“The PUD ordinance is not an attempt to block a Walmart,” countered defense attorney David Waguespack. “If [the parish] wanted to do that, they would have done what every other place has done and put a “box-ban” in… that is why Walmart hasn’t litigated, they’ve lost those [before].”
The majority of the testimony centered on the delivery of certain documents for the permit application. Moretco’s claim was that they submitted three sets of plans comprising the site, including Walmart building plans, on January 10, 2011.
David Duplantis—testifying on behalf of his firm Duplantis Design Group, which frequently works with Walmart —said that his firm had collected design drawings for the Walmart building, and those were included with other civil engineering and various site plans for the entire complex, and brought to the Permit Office for that January 10 meeting.
Duplantis referred to a correspondence between himself and Walmart directors, which detailed the instructions to submit the plans for Walmart’s building on the 10th.
“I sent an email” Duplantis said, “describing we had received architectural and electrical design documents, and we were going to a 1:30 p.m. meeting at the permit office to deliver these documents.”
Duplantis said that this delivery is confirmed by an email he composed to several members of the group working on the project the next day, including representatives at Walmart, detailing delivery of the designs, including those for the Belle Chasse Walmart building.
Steven Griggs, an engineering consultant for Moretco, was one of the recipients of that email, and testified that he had seen the building plans in question and exactly how many sets were provided.
“Typically we provide two sets, one to comment on,” Griggs said. “At the Parish office, we submitted them…we asked to see Mike Metcalf, per Billy Nungesser’s instructions. At the beginning [Metcalf] was busy doing something else.”
It was at this time Britney Barthelemy, a permit technician at the permit office, was given the parcel with the plans.
“She was not able to provide an exact [numerical] address at that time,” Griggs said, but that the application was submitted at this point.
Barthelemy testified that she did receive a delivery on the 10th, but had not date stamped any of the documents, nor reviewed them in-depth at that time. Barthelemy said that whomever had delivered the documents only said that they were for Building Superintendant Mike Metcalf.
Metcalf testified contrary, saying that documents were delivered, but did not include plans for the Walmart building. And the first date stamps on plans do not appear on any documents until September 2011.
Metcalf said that it is not Parish policy to stamp all documents in the course of a permit application, and that the practice is a discretionary one. Metcalf said that he and his team only began to stamp in September 2011 because they had received word of a suit.
“When my office found out there was impending litigation, we felt we should stamp anything that came to our office [regarding this permit],” Metcalf said.
Disappear and Reappear?
Metcalf, during his time on the stand, was also given a chance to detail how several documents that Moretco claimed the Parish had possession of the entire time, appeared in his office at 4 p.m.
“Yesterday afternoon [January 5, 2012]…my staff and I, we noticed, collectively, there was a large set of structural plans, which we’d gone on record as having never received, as well as different versions of [previously building] plans,” Metcalf said. “And in an area for only approved plans…and in obvious, plain-sight outside my door.”
Metcalf testified that he had no idea how the plans had gotten there, and Garner had objected before Metcalf could speculate where the plans could have come from. Metcalf did say that, typically, plans without cover pages are quickly subject to damage and that these plans looked, “hot off the printer.”
Duplantis was then recalled to the stand, following Metcalf’s statements, to refute the fact that the plans were not delivered to the Parish, and to attest to the discovered documents as being the one’s delivered originally.
When Garner was questioning Duplantis, Duplantis identified the documents by the dates on the printings, as well as by comparing them against some of the records supplied from Parish record.
“I have matched the sheet index on [the exhibit] to the documents, and they appeared to be the same document,” Duplantis testified.
“We had made some changes,” Duplantis said, reviewing the documents. “Generally, what was concerning a piece of property on the North of Kenneth Drive, here, and we moved away from there…[and] there were some improvements to sewers and gratings.”
Duplantis said those updates were submitted around January 25 or 26, 2011, which would have meant the Parish had made comments on the Walmart plans as well.
“[The changes] were as a result of the comments we received after [January 10 meeting],” Duplantis said. “We made changes to architectural documents to be submitted by Moretco.”
Further allegations of racist motivations for “arbitrarily” blocking, as the Moretco attorneys alleged, the progress of the new complex, included testimony from McAllister that Councilman Keith Hinkley had stated, off the record, that the reason the parish was objecting to the Walmart complex was because of, “Blacks coming in from New Orleans.”
The defense team for Plaquemines Parish refuted such statements from the Moretco counsel, and referenced statements from other witnesses, including attorney Jay Lobrano, who were present at the meeting and swore that Hinkley never made any such statement.
However, Hinkley himself did not take the stand during the three days of testimony.
“Did [Hinkley] have the courage to stand-up and look us in the eye? No he did not,” Garner said. Garner also closed by saying that by not putting Hinkley on the stand, that negative perception will persist.
Defense attorney Waguespack said that considering that Hinkley will have to continue to work with the plaintiffs in other capacities if the company continues to pursue building the complex, it would be inappropriate to have the Councilman stand up and answer for his decisions on a civic matter. Waguespack also stated that the entire case being argued had veered off point, and was being engineered for the next phase of the game.
“This lawsuit, in my opinion,” said Waguespack, ”is the set up for the next suit [by Moretco]. That’s the only thing that makes sense, since the law doesn’t support any of this case.”
At the end of the third day of testimony, Judge Foil decreed that the parish would have twenty days to respond to the latest evidence supplied by Garner and associates before the case is considered closed. After January 26, the Judge will render a decision on the case.