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New Berlin Neighbors Sue to Stop Walmart Supercenter

Rezoning for a 24-7 big box store isn’t legal, they say

Jun. 25, 2013
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The grassroots group Neighbors First New Berlin filed suit against the City of New Berlin and Walmart to halt a proposed 24-7 superstore to be located at the corner of Moorland Road and Greenfield Avenue.

The group alleges that the city broke state law when it gave less than a 30-day notice for the Jan. 7 public hearing and that the rezoning of the property isn’t consistent with the city’s land-use plan for that site. The New Berlin Common Council approved the zoning changes on May 14.

Although the intersection is a busy one and represents what the city calls the “gateway to New Berlin,” the 16-acre parcel sought by Walmart is wooded with three-quarters of an acre of wetlands and abuts a cemetery, Highlands Memorial Park, as well as a bike trail.

The group has submitted to the city more than 1,800 signatures of registered New Berlin voters who oppose the plan.

“We believe that a Walmart Supercenter at that location will cause irreparable environmental and economic damage and negatively impact the quality of life to the residents of that neighborhood,” their petition states.

Attorney Dennis Grzezinski, who is representing the group, said his clients are concerned about the superstore’s light and noise pollution, its potential to exacerbate current flooding problems and the big box store’s negative impact on crime rates and the residents’ quality of life and property values. Building a Walmart Supercenter and parking lot at that site contradicts New Berlin’s professed image as a “city of trees,” he said.

“A lot of folks moved out there for the relatively low density and to be next to the cemetery and the wooded area,” Grzezinski told the Shepherd.

The proposed 150,000-square-foot Walmart would increase traffic by an estimated 4,610 vehicle trips per day, or 4.7%, which opponents say is too much for the already congested area.

New Berlin Mayor David Ament told the Shepherd he couldn’t comment on pending litigation and has recused himself from voting on the matter as a member of the Plan Commission because his wife works for Walmart.


The Gateway to New Berlin

At the heart of the lawsuit is the city’s rezoning of Greenfield Avenue parcels from urban residential and mixed-use residential to suburban commercial with no residential zoning.

That Walmart-requested rezoning would mean amending the New Berlin 2020 Comprehensive Plan, adopted in 2009.

The plan recognizes the Moorland Road-Greenfield Avenue intersection as “a major gateway into the city from the north,” since Greenfield Avenue is the dividing line between New Berlin to the south and Brookfield to the north.

The city should encourage “signature buildings that are compatible with surrounding areas” and “encourage development at a higher scale with more intense uses,” the plan states. Development should “occur vertically” at that intersection, “with structured parking when possible, to preserve existing open space.”

A survey of residents included in the 2020 Comprehensive Plan shows that the preferred characteristics for commercial retail buildings are small-scale buildings with high-quality materials, balanced parking that doesn’t dominate the site and residential-scale buildings.

The lawsuit alleges that a 150,000-square-foot Walmart is at odds with the Comprehensive Plan’s vision and is incompatible with a Southeastern Wisconsin Regional Planning Commission regional land use plan, which recommends low- or medium-density uses for that site.

Walmart’s attorney, Deborah Tomczyk of Reinhart Boerner Van Deuren, testified during the Jan. 7 hearing that the location was attractive to the company because that corridor already is a commercial corridor.

“Traffic is a good thing for retail,” Tomczyk said.

The proposed store would include general merchandise, a full-service grocery with deli, produce, bakery, liquor and dry goods, a pharmacy with drive-through and a seasonal garden center, and perhaps more departments.

Tomczyk said the Walmart Supercenter would address retail gaps identified in the Comprehensive Plan.

Walmart already operates in New Berlin, on National Avenue, but its lease for that space ends in 2016 and it cannot expand or add grocery to that site. The company has stated that it would offer jobs to the employees on National Avenue and create an additional 50-100 jobs at the new location.

Walmart submitted approximately 1,000 signatures supporting the development, but not all of the signers are New Berlin residents.


Did the Public Know?

Neighbors First New Berlin’s lawsuit alleges that the city broke state law when it gave less than the required 30-day notice for the Jan. 7 public hearing.

Walmart’s agent submitted a request to rezone the parcels before Dec. 3, 2012, when the city clerk prepared the public notice for the Jan. 7 hearing. The notice was published in the Dec. 20, 2012, and Dec. 27, 2012, issues of the Muskego-New Berlin NOW newspaper, 18 and 11 days before the meeting.

The public notice doesn’t appear on the city’s website, although the city clerk emailed the notice to the Shepherd upon request.

The city has asserted that it sent 1,000 letters to residents near the proposed Walmart before it conducted further outreach meetings.

But Jenny Vellinga, who is active in Neighbors First New Berlin, said she didn’t know about the Jan. 7 meeting until a friend contacted her about it that day. She attended the hearing but didn’t testify in opposition to it, she said, because so many residents did so during the lengthy and at times heated meeting.

Vellinga said that many residents moved to the area to get away from rapid development and big box stores. She said she was disappointed by the city’s actions when so many residents have spoken out against the development.

“It seems like the developers rule, not the citizens,” Vellinga said.


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