Wal-Mart hearing is next week

By Ethan Smith

Leader Staff

Arguments for and against one of the most divisive issues of 2006 will be heard in district court next week, when attorneys on both sides of the Wal-Mart supercenter issue will present their cases at the first major hearing since a lawsuit was filed last summer.

Lake County First, a coalition of citizens opposed to the proposed supercenter, filed suit last year, claiming that the Polson City Council violated the city's own growth policy and master development plan when it approved a zoning request made by Wal-Mart officials in June, 2006. Since then, both sides have filed briefs and responses, and will have their day in court on Friday, Aug. 10 at 11 a.m. in front of Livingston judge Nels Swandal.

Swandal will come to Polson to oversee the hearing after local judges recused themselves, and both sides hope this is the first major step towards resolving the issue. The plaintiffs are seeking to have the city council's decision overturned, and have the land revert back to its original zoning designation for residential use only.

At the heart of the matter is whether the Polson City Council violated its own growth policy and master development plan, and state law, in granting a zoning change — by a vote of 4-2 — which paved the way for Wal-Mart to go ahead with plans to develop a 29-acre plot southeast of town. That land had previously been designated for low-density residential use, but the Polson council approved a request to zone it for highway commercial use, and Wal-Mart foes say that goes against what's best for the community as a whole.

At the June 29, 2006, meeting, the Polson council also approved a subdivision request and agreed to annex the property into the city, but the zone change is at the heart of the lawsuit. Earlier last year, the city/county planning board voted to deny the zone request, but that board could only provide a recommendation to the city council.

City attorney James Raymond said the city council acted within their legal authority in granting the request, even if many of the people who showed up at the June 29 meeting spoke out against the supercenter.

"The court's review is limited to the decision the council made following the public hearing," Raymond said. "We believe the city council was acting within its rights in making that decision."

However, Lake County First plaintiff Greg Hertz and seven other plaintiffs feel that the decision amounted to illegal "spot zoning" — approving a zoning request that just benefits one specific entity.

"The city council did not even discuss it really at the public hearing. They didn't give much rhyme or reason for why they made the zone change, and that leads to discussion of 'spot zoning.' It seems they made the change to only benefit one party — Wal-Mart," Hertz said.

Hertz, who manages Super 1 Foods, is the first to admit he has a direct financial stake in preventing a supercenter from opening, but he also cites community aesthetics, infrastructure, traffic and other factors for why a supercenter shouldn't exist here. And he's not alone — a majority of the people who showed up at the June 29 meeting spoke out against the supercenter, too.

But Raymond said arguments about illegal spot zoning don't pass a standard, three-pronged test.

"All zoning is essentially spot zoning. Spot zoning is not illegal, but there is illegal spot zoning. There is a test to determine whether spot zoning is illegal, and this decision doesn't meet that criteria," Raymond said.

Raymond agreed that spot zoning is illegal if it benefits one specific small group of people, but noted that the supercenter could benefit an entire community, not just Wal-Mart. He also said another criteria of illegal spot zoning is that there's no similar zoning nearby, but that land is zoned for commercial use just across the street from the proposed site, and down the road where Safeway and the current Wal-Mart store is located.

The proposed supercenter would be about three times the size of the current building, but Wal-Mart officials noted at the meeting that they've gone out of their way to try to make it aesthetically pleasing, including using a store design that is more in keeping with rural settings, reducing the amount and location of lights to try to eliminate light pollution, and utilizing landscaping that reduces noise that might bother nearby residents.

Almost all of the plaintiffs live near the proposed supercenter site, and have argued that the store would negatively impact their property values. In addition to Hertz, the plaintiffs include Meredith and Donald Pollack, Marian Rosa, Peter Stone, Dick Molenda, and Stanley and Dorothy Petersen.