Wal-Mart fights decision

After having its bid for a Supercenter on Barclay Avenue denied, the retailer seeks a special review.

By DAN DEWITT
Published July 7, 2007

BROOKSVILLE - Soon after the county denied Wal-Mart's request to build a Supercenter on Barclay Avenue, County Commissioner David Russell said he expected the company to challenge the decision.

Not only was Russell right, but the company singled out his comments in a letter informing the county it wants to use a special magistrate to resolve the matter. If this is unsuccessful, the company retains the right to sue the county, said David Theriaque, of Tallahassee, Wal-Mart's lawyer.

His letter to the county quotes Russell as saying at the May 9 meeting that commissioners are "here to analyze things not only objectively but also subjectively ... . That's our right."

This showed Russell was biased when he cast his vote to deny the right to build the store, Theriaque argued in the letter. He also noted that Russell and Commissioner Chris Kingsley had shown their bias by saying publicly, in the Hernando Times and other publications, that they planned to vote against the company's request before the meeting.

Partly because of this, the commission's decision to deny the store was "unreasonable, capricious and contrary to the established Florida law," Theriaque wrote.

He argued, as the company has said previously, that Wal-Mart has a legal right to build the 185,000-square-foot store on the property because it is zoned for commercial use. Also, because the land was part of a larger development approved in 1982 -- before the county created a comprehensive plan -- he said the property is exempt from comp plan requirements.

County planners and the Planning and Zoning Commission agreed with the retailer and recommended the County Commission approve the plans.

The commissioners instead sided with the many homeowners who attended the meeting and argued that the site was too close to residential areas and schools, and that it would cause severe traffic congestion on Barclay.

But Russell, in May, also said the company might be reluctant to harm its public image by suing the county. He was also right about that. The company has asked for the case to go to a magistrate who will recommend a resolution rather than order it.

"The special magistrate will explore whether we can come up with approach to resolve the matter," Theriaque said. "Our hope is to not go to court."

The magistrate also will write a report analyzing the arguments from both sides and stating which one is stronger. The County Commission will vote whether or not to approve this report.

If the matter does result in a suit, this report will be part of the evidence, Theriaque said. "It does carry some legal weight," he said.

But Russell said he would not vote for any solution that allows a Supercenter on Barclay.

"My position hasn't softened one bit," he said on Friday. "If Wal-Mart wants to be a good community partner they need to listen to the community leaders ... . I don't believe that location is suitable for a Wal-Mart Supercenter or any super store."

Dan DeWitt can be reached at dewitt@sptimes.com or 352 754-6116.

[Last modified July 6, 2007, 20:35:15]