Judge dismisses Wal-Mart lawsuit

By David Waite
Advertiser Courts Writer

A Circuit judge yesterday dismissed a claim by community activist Jim Becker that the ongoing construction at the Wal-Mart/Sam's Club site near Ala Moana Shopping Center created a personal nuisance for him.

Becker is a spokesman for Citizen's Against Reckless Development, which filed a lawsuit in December saying the city should have held a public hearing before granting the permits needed for the mega project to proceed with site grading and foundation work.

Circuit Judge Gary Chang in February dismissed most of the lawsuit except for personal nuisance claims brought by Becker and Sheridan Street resident Doris Nakamura. Chang said the group had not exhausted the available administrative remedies because it never asked city officials to reconsider the granting of the permits for the project. But the judge wanted to hear more about the nuisance issue.

Chang agreed yesterday with Wal-Mart attorney Michael Heihre, who argued that Becker lives at least a block away from the construction site and the ongoing work does not create a personal nuisance for him.

That means the only remaining claim in the lawsuit the group filed in December is Nakamura's argument that construction poses a personal nuisance and that if the project is completed, traffic congestion and air pollution will exacerbate the problem.

The matter is scheduled to go to trial in September. In the meantime, Becker's organization appealed the issuance of the building permits to the city Department of Planning and Permitting, which denied the appeal.

Becker said yesterday that because the group has now exhausted the administrative appeals process, it intends to refile the original lawsuit in hopes the issue as to whether the city properly granted the permits for the project will go to trial as well.

Wal-Mart officials have said they worked closely with community groups during the planning of the project in hopes of allaying concerns.

Late last month, an organization that oversees perpetual care for the remains of Native Hawaiians and a woman who claims ancestral ties to the construction site where the new Wal-Mart store is being built sued company and state officials, claiming graves at the site were being desecrated.

Wal-Mart bought the 10.5-acre property in May 2002 for an estimated $35 million and is building the project on the property bounded by Sheridan, Makaloa, Rycroft and Ke'eaumoku streets.