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Protest of Wal-Mart must follow rule book

By Times editorial
Published October 31, 2006

Opponents of a proposed Wal-Mart Supercenter on the banks of the Anclote River in Tarpon Springs got a delicious whiff of second chances and now, with their appetite whetted, are upset that the opportunity they relished might not materialize.

After the Army Corps of Engineers admitted that it had improperly awarded Wal-Mart a permit to build over a wetland, Wal-Mart faced three options: drop the project; redesign the project, which would require a new review by the City Commission; or make minor changes to avoid affecting the wetland - changes that could be approved by a city staff group called the Technical Review Committee.

Wal-Mart chose to make minor adjustments - move some items, reduce pavement here and there - and thereby avoid a repetition of the all-night public hearing in January 2005 that led to a split City Commission vote to approve the project.

Wal-Mart opponents have howled over the city staff's conclusion that the site plan changes are minor. They want a City Commission review, and they have been assisted by Commissioner Peter Dalacos, who asks the commission to discuss the staff's findings at tonight's commission meeting.

However, the city attorney and acting city manager say that if the commission intrudes in the process, they will violate the city charter and open the door to a claim by Wal-Mart that it is treated differently from other applicants. Acting City Manager Mark LeCouris has asked the City Commission to refuse to discuss the item tonight.

City law is clear on who has the right to determine whether site plan changes are major or minor: the city staff. The City Commission allowed public comment on that issue at its Oct. 17 meeting, which was important.

City law also is clear that the group charged with approving or disapproving minor changes is the Technical Review Committee, not the City Commission.

City law spells out the appeal process for those who disagree with the staff's decisions. "Aggrieved parties" can appeal to the city's Board of Adjustment. City Attorney John Hubbard said the aggrieved party in this case normally would be Wal-Mart if its site plan changes were rejected.

For anyone else to be an aggrieved party, they would have to be "some other person with a special interest in the property who has suffered an effect from the decision that is greater in scope and nature than that of the general public," Hubbard said. An adjoining property owner who will be directly impacted by the store construction? A river watch group interested in the protection of the river and its surrounding ecosystem, perhaps?

Lawyers will have to sort that one out.

Wal-Mart opponents may be disappointed if they lose the opportunity for another full hearing before the City Commission, but they have nothing to gain by attempting to subvert the city's code-defined procedures. In fact, doing so could make Wal-Mart's position even stronger.

That doesn't mean there is nothing they can do.

Hubbard has made a good suggestion that the Technical Review Committee take testimony from opponents and supporters of the project at its meeting. Opponents can closely question the committee about its findings on the minor revisions and present any evidence they have that the revisions are major. If they don't win, they can attempt to build a case for an appeal.

Meanwhile, the City Commission has plenty of issues related to this whole dispute that it should be discussing, with public input, short of trying to take over the Technical Review Committee's job.

Those issues include whether the code's description of "minor changes" should be broadened and whether another level of appeals from staff decisions should be created.

And if any member of the City Commission thinks the staff decision on minor changes was incorrectly or illegally reached, they should speak up at tonight's meeting so their commission colleagues can decide whether the argument has merit.

That's a better approach than just choosing not to talk about it, which does little to represent the public's interests.

[Last modified October 30, 2006, 23:32:38]