Posted on: Friday, February 21, 2003

Most of Wal-Mart suit rejected

By David Waite
Advertiser Courts Writer

A state judge yesterday threw out almost all of a lawsuit brought by a citizens group seeking to stop construction of the Wal-Mart /Sam's Club superblock on Ke'eaumoku Street.

Circuit Judge Gary Chang dismissed eight of the nine grounds for the lawsuit brought by Citizens Against Reckless Development. He did not rule on the remaining issue — whether the ongoing construction work constitutes a nuisance. A hearing on that issue will be scheduled.

Also yesterday, Chang did not directly address the issue of whether an environmental study is required for the pro-ject, as the group maintains.

Instead, he told lawyers for Citizens Against Reckless Development that state and county laws require that they should have first asked the director of the city Department of Planning and Permitting to issue an order stopping work on the project until an environmental study is done.

If that request was denied, the matter should have been taken up with the city Zoning Board of Appeals to see if it would order a stop-work order, Chang said.

Mark Wolfe, a lawyer for the citizens group, told Chang the request for a court injunction aimed at stopping the project was not an "end run" in hopes of avoiding a state law that requires aggrieved parties to take up issues of concern with state or county agencies before going to court.

Wolfe said it makes little sense to ask the city agency that granted a conditional-use permit for the Wal-Mart project to order that the work be halted. Wolfe added that the Zoning Board of Appeals does not have the authority to issue a stop-work order.

Wal-Mart attorney Michael Heihre argued that the city properly issued the conditional-use permit as well as permits to allow grading and foundation work to proceed.

Heihre said the citizens group was legally required to make its concerns about the project known to the city and to contest the issuance of a conditional-use permit for the project, but did not do so.

Project opponents contend that it will result in a significant increase in traffic, diesel and auto emissions, dust and noise — both during construction and once the stores open for business.

Wolfe said the citizens group never contested the issuance of the conditional-use permit because it was told repeatedly by the city and Wal-Mart representatives that the city zoning classification for the property allowed construction of the project and that Wal-Mart need only apply for a building permit.

William Saunders, who is also an attorney for the citizens group, said after the hearing that a request will be filed with the city Department of Planning and Permitting to order that work on the project be halted. And if the agency director refuses to issue the order, the matter will be taken up with the city Zoning Board of Appeals, and will be brought back to court if the Zoning Board does not stop the project.