"Wal-Mart wins another round; judge dismisses PARD appeal"

From today's Lewiston Tribune:

The door to construction of a Wal-Mart Supercenter reopened Wednesday when Superior Court Judge David Frazier dismissed an appeal by a group trying to keep the world's largest retailer out of Pullman.

Frazier, after a three-hour hearing, upheld a hearing examiner's earlier ruling that Pullman officials acted legally when they approved a Wal-Mart site plan last year and issued a decision of non-significant environmental impact.

T.V. Reed, a spokesman for the citizen's group called People for Responsible Development (PARD), said after the hearing an appeal to a higher court is possible.

Frazier, who said he labored long and hard over the case, seemed to anticipate his decision might be questioned. "I get the impression I'm not going to be the last judge to hear this case."

In addition to a possible second appeal, Reed said after the hearing PARD will continue to battle Wal-Mart on a number of fronts. "We have many next steps. This is just the legal phase," he said. ["Just the legal phase?" What's the next phase for PARD? Chaining themselves to the wheat stubble? The fat lady ain't sung yet, but you can hear her warming up.]

Frazier said he decided to rule from the bench rather than drag the process out any further. "My job here today is to determine this case as an appellate review of a land-use issue," Frazier said. "The hearing examiner gave a very careful and thorough review."

The examiner, John Montgomery of Spokane, heard two and a half days of public testimony in January and then issued his decision upholding the city's acceptance of the Wal-Mart application. Two months later, PARD appealed Montgomery's decision to Whitman County Superior Court.

After an initial hearing in June, Frazier remanded the case back to Montgomery, asking him for a more detailed analysis behind his decision. Montgomery provided the requested information and Frazier Wednesday lauded him for the effort.

"My conclusion is that he struggled with the case and came up with a decision," Frazier said, explaining that in his capacity as an appellate judge his job was to simply to determine whether Montgomery based his decision on substantial evidence. "I don't decide what the facts are," Frazier said. "If I disagree with what he's found, that doesn't matter."

But PARD's attorney, David A. Bricklin of Seattle, argued the court should be concerned with the facts because the facts show the city's decision to allow Wal-Mart into town was flawed on a number of fronts. He also said Montgomery's ruling was inconsistent, contradictory and contained findings and conclusions that didn't support his final decision.

"The city does not have evidence in the record to support the decision it made," Bricklin said.

Pullman City Attorney Laura McAloon, however, said city officials and staff pored over the Wal-Mart application for more than a year. A total of 35 conditions were imposed on the company before it can obtain an occupancy permit for the proposed 223,000-square-foot store on Bishop Boulevard.

Wal-Mart attorney Jack McCullough accused Bricklin and PARD of trying to shift the legal burden of proof away from themselves as appellants, and onto Wal-Mart and the city. "The petitioners are trying to put the court in the position of initial fact-finder," McCullough said. He said PARD continues to do little more than raise questions and make allegations while offering no evidence to support their opposition.

Bricklin said the questions arise because the city and Montgomery failed to scrutinize the potential impact of Wal-Mart coming to town. He said the super store would be four times larger than Pullman's central business district. Bricklin said PARD members want the city to treat Wal-Mart's attempt to build differently, not because it's Wal-Mart, but because the project is different than anything the city has dealt with before.

"All those claims about what PARD didn't study should fall on deaf ears," Bricklin said. He said people should be more concerned about what the city didn't study prior to giving Wal-Mart a nod of approval. Bricklin cited traffic, pedestrian and fiscal concerns that remain as important issues.

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