Friday, February 21, 2003

Wal-Mart wins
8 of 9 claims
in lawsuit

But a group trying to halt
construction can move ahead
on the grounds of nuisance

By Debra Barayuga

A judge has kept alive a lawsuit by a group of Keeaumoku-area residents and a union to halt construction of a Wal-Mart/Sam's Club complex.

Circuit Judge Gary Chang granted Wal-Mart's request to dismiss eight of nine counts in the suit filed by Citizens Against Reckless Development and Local 489 of United Food & Commercial Workers Union. But he did say the suit could go forward on a claim that the project presents a nuisance.

Mark Wolfe, a San Francisco attorney who specializes in land use and represents the residents' group, said it expects to file a new suit with the same claims, but with new facts, and seek other remedies before the city Department of Planning & Permitting and the Zoning Board of Appeals.

An amended complaint, filed Dec. 23, alleged that the city violated the Land Use Ordinance, failed to prepare an environmental assessment and consider the negative impacts the proposed project would have on the community.

Michael Heihre, attorney for Wal-Mart, argued yesterday that the Land Use Ordinance provides administrative remedies for their grievances and that those procedures must be followed.

Chang agreed and ruled that under the City Charter and Land Use Ordinance, the group should have first sought administrative action by requesting that the planning director issue a cease-and-desist order before it turned to the courts.

Until the group does, Chang said he could not rule on Citizens Against Reckless Development's claims regarding interpretation of the Land Use Ordinance or for injunctive relief.

Wolfe said the group was "deliberately misled" by Wal-Mart and city officials who maintained that all the developer needed was a building permit and made no mention of a conditional use permit.

Even if the group had been misled, Heihre said, the group still would have had to appeal administratively within 30 days. The group had no recourse if it was late, he said.

The counts Chang dismissed included allegations that the project is not permitted under existing zoning requirements; the site is not suitable for a project of this size; the project will alter the character of the area; and that the city failed to prepare an environmental assessment.

Yesterday's ruling does not affect foundation work at the site. A hearing on the group's request for a preliminary injunction to stop activities at the project is set for March 13.

Honolulu resident Jim Becker, one of the plaintiffs, said he only learned that the developers had obtained a conditional use permit when bulldozers showed up at the site. That was 212 months after the permit had been issued in August, he said.

United Food & Commercial Workers Union

E-mail to City Desk


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