Politics from the Palouse to Puget Sound

Wednesday, June 04, 2008

"Appellate court denies PARD's Wal-Mart appeal; Retailer plans to move forward with construction of super center in Pullman"

"Wal-Mart is entitled to recoup its legal fees from PARD," said Wal-Mart spokesperson Jennifer Holder. They had better, unless they want to be dragged into court all over the state of Washington to fight frivilous lawsuit after frivilous lawsuit and years long delays. A message has to be sent and an example made of PARD. We'll see how "proud" the PARDners are to be "active in the process" when they are on the hook for hundreds of thousands of dollars in legal expenses.

The City of Pullman must also recoup legal expenses. That's a no-brainer. In Wal-Mart's case, you could say it's the cost of doing business. In the city's case, it's taxpayer money that has been wasted battling these ridiculous appeals of PARD. We demand pur money back. Contact the Mayor and City Council here and let them know that.

From today's Moscow-Pullman Daily News:
PARD mulling appeal to higher court

The Washington Division III Court of Appeals sided with Wal-Mart and the city of Pullman on Tuesday, denying an appeal by the Pullman Alliance for Responsible Development.

In the decision, the three-judge panel concluded that "PARD has failed its burden ... to demonstrate a probable significant impact on the built environment" by a proposed Wal-Mart Supercenteron Bishop Boulevard.

The court dismissed the group's claims that the site plan application did not adequately consider the store's fiscal effects on the city, local businesses and environment and that the store would negatively affect adjacent neighborhoods with increased pedestrian and vehicular traffic. The court also disagreed with PARD's claim that the store is incompatible with Pullman's comprehensive plan.

"There is no evidence in the record that the proposed Wal-Mart is likely to have a significant adverse impact on the physical environment in downtown Pullman," the judges wrote in their decision. "The fact that some identified local businesses will compete with Wal-Mart does not support a conclusion of economic blight."

PARD spokesman Christopher Lupke wrote via e-mail that the group has not ruled out an appeal to the Washington Supreme Court. PARD members will meet Thursday to discuss their options.

Lupke said PARD does not regret its fight against Wal-Mart and is proud to have been active in the process.

Wal-Mart announced plans to build on Bishop Boulevard in October 2004. The project was given a determination of nonsignificance by Pullman Public Works Director Mark Workman on the State Environmental Policy Act checklist. The determination means the city believes the project should not have an adverse effect on the environment.

PARD appealed the store's SEPA checklist and site plan on the grounds that the store would impact stormwater run-off, traffic and negatively affect Pullman's local economy.

Spokane attorney John Montgomery - who acted as Pullman's hearing examiner at the time - was called to oversee PARD's initial appeal. He concluded the store's site plan and environmental checklist was sufficient, and his decision was upheld by Whitman County Superior Court Judge David Frazier, who dismissed PARD's appeal.

PARD then took the case to the Division III Court of Appeals, which deliberated for more than five months before rendering its decision. Wal-Mart was legally able to begin construction during the appeal process, but company spokeswoman Jennifer Holder said the store prefers to wait to build until pending legal matters are resolved.

Holder said Wal-Mart is entitled to recoup its legal fees from PARD, but that store officials have not yet decided whether to pursue that course of action. She also would not disclose how much the company has accumulated in legal fees.

Holder said the next step for Wal-Mart is to proceed with construction "and finally bring this store to the community." Construction timelines will soon be put together and contractors will begin obtaining the necessary permits from the city. She said Wal-Mart is shooting for a 2010 or 2011 opening of the store.

"We're just delighted that this has finally reached an end," she said. "We've been waiting and waiting."

City Supervisor John Sherman said the news is promising for retail development, noting that a handful of stores have pledged to locate in Pullman after Wal-Mart is established.

"We're very pleased. We felt the impact of Wal-Mart was very carefully considered by our staff," he said. "We absolutely hope it will help, rather than hinder, retail."

In a prepared statement, Businesses & Residents for Economic Opportunity co-founder Tom Forbes applauded the appellate court's decision. The group was formed in 2005 in response to PARD.

"Today is a great day to be a resident of Pullman," Forbes stated. "With the Wal-Mart case now over and the Hawkins Stateline Retail Center on (the Pullman-Moscow Highway) set to break ground soon, we are sending the message that Pullman is on the rise and that our city is a great place to live and do business."

Forbes also called on PARD to not pursue further appeals.

"The majority of Pullman citizens want the benefits that a Wal-Mart Supercenter will bring," Forbes stated. "The issue of Wal-Mart in Pullman has been the subject of public hearings and two extensive legal reviews. Further pointless and baseless legal maneuvers by PARD to delay the inevitable will only cost city taxpayers tens of thousands of more dollars and exacerbate divisions within the community."

April Coggins, a Pullman business owner and BREO member, said PARD should realize it doesn't have a case.

"I haven't seen a shred of evidence ... that would have changed any decision. Everything was made by the letter of the law," she said. "I'm sad that it's taken four years to get to this point. I'm disappointed in our state legal system that there can be delays like this."
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Gregg said...

How plausible is it that PARD will be made to pay legal expenses for the city of Pullman or Walmart? I'd love to see it. Their rediculous legal shenanigans have really disgusted me and they should have to pay the price for this financially.

Tom Forbes said...

Very plausible. Here's the "fine print," as Chris Lupke calls it:

The prevailing party on appeal of a land use decision is entitled to its attorneys fees if it also prevailed before the agency and in the superior court.

RCW 4.84.370(1); Baker v. Tri-Mountain Res., Inc., 94 Wn. App. 849, 854, 973P.2d 1078 (1999). The statute states in pertinent part:

Appeal of land use decisions--Fees and costs. (1) . . .
[R]easonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals . . . of a decision by a county . . . to issue, condition, or deny a development permit . . . . The court shall award and determine the amount of reasonable attorneys' fees and costs under this section if:

(a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county . . .; and
(b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings

Mattwi said...

I fear it would just cost the city more money if they pursued it, at this point in time the city needs to make money not spend it. (Though I'd love to see them legally "spanked hard" over this).