Plaintiffs retreat in Dollar General battle

The on-again, off-again Dollar General project appears to be on -- for good.

The group of citizens trying to prevent a Dollar General from being built at the corner of North Sixth and Highland streets in Blytheville is dismissing its lawsuit that sought an injunction on the project.

"We were informed by Mr. (Dan) Ritchey yesterday (Monday) that they intended to non-suit (voluntarily dismiss) the lawsuit," said Michael Mosley, the Arkansas Municipal League attorney representing the city of Blytheville in the lawsuit. "They have stated therefore, that there is no reason for me to prepare the proposed order, although I have done that and circulated it. I have asked that they ensure that the court is OK with not submitting the proposed order since they are dismissing the case."

Ritchey, the attorney representing the group, said an Order of Non-Suit has been sent to the judge and is expected to be returned and filed within the next few days.

"Based on the court's construction or interpretation of the city zoning ordinance in our recent hearing, the plaintiffs have reluctantly decided to dismiss their legal action concerning the Dollar General Store project," Ritchey wrote in a press release sent Tuesday afternoon. "The plaintiffs, and many other citizens, strongly believe that a retail business does not belong in the middle of a residential neighborhood -- any residential neighborhood. They believe that our city officials could have done something to stop this and are disappointed that the city officials made no effort to do so. The plaintiffs understood that a legal action would be difficult but felt that it was appropriate to make that effort. Basically, we needed a home run in our request to the court for a declaratory judgment. Unfortunately, we ended up with what I consider to be a triple, which is not enough."

On July 2, Second Circuit of the Arkansas Judge John Fogleman dismissed some claims and allowed some to remain in a complex ruling in Mississippi County Circuit Court.

The main claim that remained related to whether the Blytheville City Council and Planning Commission considered the necessary factors in permitting construction of the Dollar General Store.

The court dealt the group of citizens a blow with its interpretation of the wording of the related city ordinance.

"The city's position was that where it refers to the conditional use section for an overlay district review that the only standards that applied for that review were the site design requirements -- setback, sidewalks, green space, those sorts of things," Ritchey explained last week. "The plaintiff's position was that the ordinance required a review of other requirements, mainly compatibility with the surrounding properties and comparability of use with surrounding properties. The court's interpretation of the ordinance was that the city only had to review the site requirements and not the compatibility or not the comparability."

Though zoned B-2, the group contended the store would not be compatible with the predominantly residential area, which includes a several expensive homes near the property in question.

The dismissal ends a saga that began in March.

Because the area is in an overlay district, the Blytheville Planning Commission had to decide if Dollar General builder Sam Ware met the stricter requirements for use of the property. Looking only at the overlay district requirements, the Commission went through a checklist, and code enforcement officials said Dollar General's plan met each one. The board tabled the matter at the March 13 meeting, then 10 days later gave its approval.

On March 27, the city of Blytheville issued a building permit to Ware for the Dollar General.

But the next day, upon city attorney Mike Bearden's suggestion, the city suspended the permit until a group of residents could appeal the Blytheville Planning Commission's decision to the Blytheville City Council. On April 4, the City Council voted 4-2 to reinstate the permit and, since then, Ware's company has torn down the old Penn's Barbecue and begun to build on the site, a process that is well under way.

On April 26, Ritchey filed a lawsuit in Mississippi County Circuit Court on behalf of several Blytheville residents seeking an injunction to stop the building of the Dollar General. But the group is now raising the white flag.

mbrasfield@blythevillecourier.com