District Judge Nels Swandal of Livingston ruled Friday that the Polson City Council crossed its t's and dotted its i's before approving a zoning change that would allow the new store to be built.
“There is no basis for this Court to intrude on the Council's decision,” Swandal wrote in his explanatory comment. “The Court's function is not to independently determine if the Council made the correct decision on the annexation and rezoning application. The Court must exercise restraint and limit its determination to whether the Council's decision, which is presumed valid, was random, arbitrary, capricious or an abuse of discretion.”
“We respect Judge Swandal, we just disagree with his conclusions,” said Martin S. King of the Missoula law firm Worden Thane, which represents Lake County First, a citizens group that opposes the supercenter.
An appeal would be based “in general, because we think the order is wrong as a matter of law,” King said. “There are a lot of issues involved here.”
Lake County First argued that the Polson City Council ignored its own growth policy and master development plan when it approved a zoning change that would allow the construction of the supercenter next to U.S. Highway 93 near the Miracle of America Museum.
But Swandal found that “While plaintiffs contend that the council failed to give consideration to the Polson Growth Policy, that policy was adopted only 10 days before a scheduled public hearing and after the (City-County Planning) Board had held its public meeting and considered the annexation and rezoning application. Nothing in the record supports the assertion that the Polson Growth Policy was meant to apply retroactively, and equity requires that both the board and council consider the application under the same regulation.”
The planning board had recommended the council reject Wal-Mart's request.
The property in question was zoned for low-density residential housing. The council's vote changed it to highway commercial, and Wal-Mart's attorneys noted that brought the zoning in line with property abutting three sides of the 20 acres in question. That includes land housing Polson's current Wal-Mart, which is accessed from Highway 35.
A new supercenter would be three times the size of the existing Wal-Mart.
Swandal directed Wal-Mart's attorneys to submit a proposed judgment for him to sign, but attached no time element to the order. After one is signed, Lake County First has 30 days to decide whether to file an appeal to the Montana Supreme Court, King said.
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