Judge rules in favor of Wal-Mart

By Ethan Smith - Leader Staff

A district court judge has ruled in favor of Wal-Mart, opening the way for the proposed supercenter, but the plaintiffs in the case are still considering whether to appeal the decision.

Livingston judge Nels Swandal handed down his decision last Friday, saying that the Polson city council acted well within its rights in approving a zone change and annexing the proposed site into the city limits last year, and the plaintiffs will have to decide how much more money they want to spend to fight the decision.

"I've spoken with some of the plaintiffs, and right now, we're considering whether we want to appeal," said Martin King, the attorney representing Lake County First. "Cost is always a consideration, but my clients are right now analyzing whether they want to go forward in light of how far they've come."

LCF, made up mostly of homeowners who live directly below the proposed site just southeast of Polson, filed suit last fall, claiming that a supercenter would damage their property values. Greg Hertz, who manages Super 1 Foods, is also a plaintiff.

The basis of their argument was that the Polson city council ignored the Polson growth policy, development code and master plan when making its decision, and that a supercenter would look out of place in such a rural setting, but Judge Swandal disagreed, saying the council was well within its rights.

While the city/county planning board recommended to deny a zone change, it could only make a recommendation, and the city council approved the zoning change, changing it from rural low-density to highway commercial, paving the way for the supercenter to be built.

After reviewing the exhaustive timeline of events, going all the way back to public meetings held in 2004, as well as zoning and development codes in place then, Swandal said the city council was well within its rights.

"The council clearly had the authority to partially approve and partially deny the zoning request … The Council considered the [public] comments, took a reasoned approach and made a decision which balanced the competing interests," Swandal wrote in his decision.

However, King said he still feels that the council's decision violated parts of the city's master plan and development code. The fact that the city approved a new version of the master plan just days before the council voted to approve the zone change was a factor in the plaintiff's arguments, but one that Swandal considered in his ruling.

Swandal wrote in his decision that because Wal-Mart started the application process years before the new growth policy was in place, it can't be applied after the fact, and even so, the council's decision was in compliance with the new policy.

"The Polson Growth Policy does not contain a retroactivity clause … applicable to pending applications, and even if it was applicable, the record, as a whole, would indicate that the decision would have met that policy," he wrote.

But King disagreed.

"I respect Judge Swandal, but I disagree with a number of conclusions in his order," King said. "I disagree with his conclusion about the Polson growth policy, and whether the zoning change is in compliance with the Master Plan or development code."

Swandal cited the decision by the council to include a nine-acre "buffer zone" at the proposed site that is not considered high density commercial as evidence that the council tried to consider all factors.

The presence of the buffer "indicates that they gave careful consideration and thought to the proposed development, its advantages and its impact," he wrote.

Hertz declined to comment, referring questions to King, but did acknowledge that he and other plaintiffs are considering an appeal. He said legal fees are well into the thousands of dollars, but that he didn't know exactly how much.

Swandal asked the defendants to submit a judgment, which is essentially their request for reimbursement of certain expenses, which can be approved or denied by Swandal. King said he'll be aggressive in defending his clients' interests because he doesn't feel Wal-Mart, its attorneys and the City of Polson are entitled to too much reimbursement.

"The law allows them to recover some limited out-of-pocket costs. We will look critically at any proposed judgment because we don't feel Wal-Mart is entitled to any financial judgment other than some potentially very limited costs," he said.

Swandal was called in to hear public arguments in August in Lake County district court because local judges recused themselves. A decision was initially supposed to be given earlier this month, but Swandal was called out of state on National Guard duty in late September.

The plaintiffs will have 30 days to respond once Wal-Mart's attorneys have submitted their request for judgment.