Decision on supercenter should come next month

Judge Nels Swandal was called in to hear the case after local judges recused themselves.

By Ethan Smith

Leader Staff

A long-awaited decision on the status of Wal-Mart's proposed supercenter should come next month, after attorneys for both sides outlined their arguments in district court last week.

The 25-minute court hearing in front of Livingston judge Nels Swandal belied the year-long legal process both sides have gone through, and Swandal said he will render a decision within 30 days of receiving final briefs from both sides by Sept. 4.

Lake County First attorney Martin King outlined his clients' position, portraying the plaintiffs as little guys fighting the world's largest retailer, and praised them for having the courage to do so. But comments made by Swandal indicated the judge wouldn't consider an impact on local businesses in his decision.

"Filing a lawsuit against Wal-Mart … takes a lot of courage," King said in his initial statements.

"Mr. King, don't get on a soapbox," Swandal replied.

Swandal kept a tight rein on the attorneys, having told them prior to last Thursday's appearance that he didn't want to waste time hearing arguments already submitted in prior briefs. True to his word, he was quick to quash any arguments he considered redundant.

Much of King's argument focused on the plaintiffs' feeling that the Polson city council failed to take into consideration the city's new growth policy, which was approved just 10 days prior to the council's decision last summer to annex the proposed site into the city limits and change the zoning there to highway commercial, from residential.

The city council's decision followed hours of public testimony in which many people said the supercenter would hurt local businesses and be out of place among the more rural landscape located southeast of Polson. However, in granting the zoning change, council members noted that most of the land above the proposed site, along Hwy. 93 and across the street, is already zoned for commercial use.

Most of the plaintiffs in the suit include residents of a subdivision below the proposed site, who feel a supercenter will negatively impact their property values. Greg Hertz, who manages Super 1, is also a plaintiff in the suit, which names the Polson city council and Wal-Mart as defendants.

King argued that the city council abused its discretion, essentially making a zoning change that benefited Wal-Mart without considering the overall impact on the city and nearby residents, in violation of the growth policy and state law.

"The growth policy envisions that it would apply to future development. They simply didn't consider it," he said.

King said attorneys for Wal-Mart and the city have not offered any evidence to contradict the plaintiffs' claim that they didn't follow the growth policy. He said consideration should also be given to the impact on local businesses.

"They've essentially disregarded the effect this zone change will have on the central business district," King said, telling the judge he should consider the economic impact.

However, it was clear from the proceeding that Swandal would not consider whether a supercenter would impact local businesses, saying it's outside the scope of the court's decision.

Swandal said all businesses strive to grow for economic reasons, and he asked rhetorically if King thought competition was bad.

"They didn't come here for the fishing," the judge said of Wal-Mart's desire to build a supercenter and expand its operations.

The proposed supercenter would offer a tire and lube shop, an optometrist and several other services, and would be about 153,000 square feet, more than triple the current store. In public presentations last summer, Wal-Mart officials said they will use a store design that's more suited for rural settings, and provide landscaping to reduce noise and light pollution.

Wal-Mart officials also say the supercenter won't be very visible coming down Polson Hill, and that it won't ruin the view of the lake that is attractive to so many residents and tourists.

Wal-Mart attorney Jon Moog spoke only briefly, saying the city council was well within its rights under Montana Code Annotated 76-1-605, which outlines the use of growth policies.

"The council made a 'Salomon-like' decision," he said, and compromised, having to juggle multiple interests and input.

King said the council's decision simply created "cynicism - the distrust of citizens and their motives," in approving the supercenter in what he said was the largest zone change in the history of Lake County.

Polson city attorney James Raymond did not address the court, and noted in an interview earlier this month that his job was simply to protect the city's interests, not argue on Wal-Mart's behalf.