Posted on: Thursday, February 27, 2003

Wal-Mart project to be 'hard to stop'

By James Gonser
Advertiser Urban Honolulu Writer

When Circuit Judge Gary Chang dismissed all but one complaint by a citizens group asking for a halt to the construction of Wal-Mart's store on Ke'eaumoku Street, he left a door open for Citizens Against Reckless Development to renew the request.

But even if the group does, the chances of stopping the project may be a longshot, some legal experts say.

Jim Becker, spokesman for the citizens group, said state and county laws require that before a court can decide the case the group first must ask the director of the city Department of Planning and Permitting to issue an order stopping work until an environmental assessment is done. Assuming the director denies the request, the group still may well get their day in court.

"Judge Chang said we had not exhausted all our city remedies when the case went to Circuit Court," Becker said. "He dismissed parts of the lawsuit without prejudice, meaning he can hear them again, and said we should have gone directly to the director of planning and permitting. We didn't do that."

A complaint by a citizens group that the area is not zoned for a store as large as the one proposed by Wal-Mart will be heard by the city Zoning Board of Appeals today.

But Becker said the complaint was filed prematurely and that the group will concentrate on asking for the environmental assessment. They hope to be back in court as soon as possible to stop the construction.

"The judge has said to Wal-Mart that they are proceeding at their own risk," Becker said. "He said they should not assume he is leaning one way or the other. He would not hesitate to have a building torn down."

Last May, Wal-Mart purchased the 10.5 acre property for an estimated $35 million, with plans to build a double-decker Sam's Club and Wal-Mart on the block bounded by Sheridan, Makaloa, Rycroft and Ke'eaumoku streets.

The company already has a conditional use permit and is doing grading and foundation work on the project, but has not secured building permits for its proposed 317,000-square-foot structure.

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.

Wal-Mart spokeswoman Cynthia Lin said the company has been listening to and responding to community concerns about traffic and other issues and will continue to do so for the combination supercenter it plans to open in 2004.

"This site is zoned for our use, that's why purchased the property and are developing here," Lin said. "Unfortunately, there is this small group of neighbors using every possible means to stop it.

Lin said there are many more people who support the project and look forward to the shopping and employment opportunities Wal-Mart will bring to the community.

A bill making its way through the Legislature would require future big-box developments to perform an environmental assessment before starting construction, but even if passed it would not effect the Ke'eaumoku Street project.

David Callies, who teaches land-use law at the University of Hawai'i Richardson School of Law, said it would be very difficult to stop the project at this point.

Callies, who has not read the lawsuit, said he has looked at the zoning and it appears to be appropriate. Assuming Wal-Mart has all their discretionary permits, such as a conditional use permit that Wal-Mart already has, the developer cannot be stopped unless a mistake is found, Callies said.

"If you have your last discretionary permit and have begun to rely on it by expending money and doing work, you are entitled to finish," Callies said. "It is going to be very, very hard to stop the project. Even if the city decided to bow to neighborhood pressure and refuse the building permit, then they would have to figure out how to compensate the landowner for the loss of their vested rights."

Callies said that if opponents say the discretionary permits were issued by mistake because the zoning is invalid, they could have a case.

"It is not impossible, but I'd be really surprised if the city made that kind of mistake," he said.