"Judge sends Wal-Mart appeal back to the hearing examiner"

From today's Moscow-Pullman Daily News:

The appeal of the proposed Wal-Mart Supercenter in Pullman will be delayed until October.

Whitman County Superior Court Judge David Frazier today sent the case back to hearing examiner John Montgomery to write a more thorough decision on his findings from the public hearing in January.

“I don’t think anybody in this case is going to be well off if we proceed,” Frazier said.

Frazier heard some arguments today in an appeal filed by the Pullman Alliance for Responsible Development, a grassroots group that sprang up in January 2005 to stop Wal-Mart from coming to town.

Frazier’s role in the appeal is to decide whether the hearing examiner made any administrative errors in his decision. It is not his job to review the evidence and determine whether or not the decision was the right one, he said.

Frazier said he needed more information about the thought process behind Montgomery’s decision before he could determine whether any errors were made.

“I think it was a wise decision on the judge’s part,” said Laura McAloon, Pullman city attorney. “If he is unclear, it is appropriate to remand it back to the hearing examiner.”

Wal-Mart announced its plans for a 223,000-square-foot super center in October 2004. PARD has fought Wal-Mart every step of the way, most recently taking the battle to the Whitman County Superior Court.

The city issued two decisions in the summer of 2005 approving Wal-Mart’s site plan and finding the store would have no significant effect on the surrounding environment. PARD appealed those decisions.

Montgomery, a Spokane land-use lawyer, was appointed to oversee the appeals. He took three days of public testimony and reviewed a flurry of documents before writing a 14-page decision in favor of Wal-Mart and the city, adding two conditions about traffic lights on Bishop Boulevard.

One condition required the company to install a traffic signal at the intersection of Bishop Boulevard and Fairmount Road before it could obtain an occupancy certificate for the store.

The second condition required the installation of a traffic signal and a right turn lane at the intersection of Bishop Boulevard and Professional Mall Boulevard before Wal-Mart could open a gas station that may be built some time in the future. The gas station is not part of the plans Wal-Mart submitted to the city.

Frazier said he was confused about how Montgomery reached some of the conclusions.

Frazier also said Montgomery failed to address some issues, such as whether the scope of Wal-Mart’s traffic impact study was sufficient. PARD argued at the January hearing and in its appeal brief that traffic on Pioneer Hill, Grand Avenue and the intersection of Bishop Boulevard and East Main Street should have been studied as part of Wal-Mart’s application.

Frazier suggested each side in the appeal should draft a set of findings and conclusions to give to Montgomery to help him come up with a more thorough report. No specific deadline was given to Montgomery, who was not present at the hearing, but another Superior Court hearing was set for Oct. 18.

John McCullough, the attorney for CLC Associates, the consulting firm that filed the application on behalf of Wal-Mart, thought Frazier’s decision would help Wal-Mart’s case.

“It will ultimately result in a better and more defensible decision,” McCullough said.

Christopher Lupke, a spokesman for PARD, said he hoped Frazier’s decision would cause Montgomery to think more carefully about some of the issues in the case.

“I read the hearing examiner’s decision myself and thought maybe being a professor, I was overly critical in my own mind, but it seems Judge Frazier clearly had some of the same problems reading the decision I had in terms of clarity and sufficiency of argument,” Lupke said. “In fairness, he had to complete the report in a short time. Now there’s more time for him to think it through more deeply.”

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