An attorney for residents of the El Encanto neighborhood argued any special deals the city made to allow a Walmart at El Con Mall expired years ago, and the planned supercenter must fully comply with the city zoning code.
But a lawyer for the city told Pima County Superior Court Judge Jeffrey Bergin that plans for the store already are in compliance - a point the neighbors dispute - so the original 1999 special development agreement doesn't matter.
The lawsuit, filed last October by the El Encanto Estates Neighborhood Association, seeks to overturn a Board of Adjustment decision to allow a 108,120-square-foot Walmart to occupy an area of the mall that was previously a Levy's department store.
For years, El Encanto residents have fought the proposed supercenter. In 1999, they persuaded the City Council to pass a "big-box" ordinance placing a variety of restrictions, such as longer planning periods and limits on how much of a store can be dedicated to groceries, on retailers with more than 100,000 square feet of store space.
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A year later, however, the council approved a development agreement with the El Con owners that zoning officials have since interpreted as a green light for the Walmart project to move forward.
According to the neighborhood association's attorney, George Krauja, any development agreement the council may have entered into more than a decade ago is moot because protected development rights only have a three- to seven-year time frame before they expire.
And now that the original agreement has terminated, Krauja told Bergin, Walmart must be held to the "big-box" ordinance, which he contends the planned store does not do because the store is slated to have about 25 percent of its sales come from groceries, and other issues that do not comply with the law.
"We are not saying that this means automatically, by itself, that in El Encanto a Walmart can never be built," Krauja said. "What it means is, the mall owners and Walmart have to follow the planned-use process to get special exceptions."
"The (city) can say that if you do certain things, we will rezone your property from a C-2 to a C-1," he said. "But what it can't do is say that if you do certain things, we won't enforce the provisions" of the existing code.
But Assistant City Attorney Tom McMahon said the primary issue isn't if the development agreement has expired, but whether the Walmart building is in compliance with the "big-box" ordinance.
"The question is not whether the protected development rights either were or are in effect," McMahon said. "But rather is the proposed Walmart development in compliance with the required land use there, the previously approved development plan, approved zoning conditions for the site."
McMahon said Walmart is, and therefore the Board of Adjustment and the zoning administrator were correct in approving the project.
Bergin gave no indication when he will rule on the case.
Darren DaRonco can be reached at 537-4243 or ddaronco@azstarnet.com
