The Law

You Can't Beat Walmart by Ron Davis Walmart’s expansion plans at an Ohio retail complex have apparently cleared the final hurdle that will allow construction to proceed despite objections to the expansion. The Walmart store, located in Beavercreek, wants to add 60,000 square feet to two sides of the existing building. The added space will allow the store to begin offering groceries and related items for sale to customers. Opposing those plans is a nearby grocery retailer, Lofino’s Inc., which claims that the expansion fails to comply with the local zoning code. Specifically, Lofino’s explains, the expansion would, among other drawbacks, ignore density and development limitations, exceed original retail-space limits, and reduce green space at the site. Moreover, Lofino’s contends, Walmart’s proposal would give “an enormous benefit to Walmart, unlike any other ever provided to major retail developments in Beavercreek.” Finally, Lofino’s argues, “All we are asking for is that Walmart be treated the way others have been treated and the zoning code be fairly applied.” Walmart counters those arguments by explaining that Lofino’s would not suffer any unique harm and would not be directly affected by approval of the expansion plans. And Walmart points out, since the expansion would not directly affect or harm Lofino’s, its opposition lacks legal standing. In fact, Ohio law states that an appeal of such a zoning ruling requires that the complaining party be “directly affected” by the zoning-authority decision. But Lofino’s explains that a Walmart expansion “creates direct harm to those specific grocers and retail developers…that are prevented by law from using their property to the same extent as their direct competition.” An Ohio court ruled in favor of Walmart, pointing out that Lofino’s did not offer evidence that it is directly affected by approval of Walmart’s expansion plans. Lofino’s appealed that ruling. An Ohio court agreed with the lower court, explaining, “At no point, did Lofino’s present evidence concerning its business or property—what it is, where it is located, or how the Walmart expansion would affect it…. Lofino’s did not, for example, present evidence that the expansion would decrease the value of their property…. Nor did Lofino’s present evidence that the expansion would diminish access to the Lofino’s business.” (Lofino’s, Inc. v. Beavercreek City Council, 2009 WL 2675294 [Ohio App. 2 Dist.]) Decision: September 2009 Published: September 2009