Wal-Mart developer sues Bangor Denial of Supercenter challenged in court

BANGOR – It didn’t take long to rekindle the battle over a proposed Wal-Mart Supercenter off Stillwater Avenue.

Just a week and a day after the city’s planning board narrowly rejected a plan to build the giant retail center near the environmentally sensitive Penjajawoc Marsh, the project’s developer has brought a lawsuit against the city looking to overturn the decision.

In the appeal, filed Thursday morning in Penobscot County Superior Court, the Widewaters Group, the project’s New York-based developer, contends that the planning board overstepped its authority in denying an application to build the 224,000-square-foot retail center in a hayfield north of the Bangor Mall.

“Our application was consistent with the city’s comprehensive plan and complied with all of the city’s regulations in every way,” Kevin Kane, the project’s development manager, said in a statement Thursday. “Despite meeting all of these requirements, we were still denied.”

Last week, the planning board voted 3-2 to reject the plan, with the majority citing a need to preserve the nearby Penjajawoc Marsh as a rare, irreplaceable natural habitat.

The Penjajawoc became the focus of an intense debate in recent months, with local environmentalists decrying the plan to place the giant store near a portion of the 350-acre wetland, home to a number of bird species on the state’s endangered or threatened lists.

Members of Bangor Area Citizens Organized for Responsible Development, a local group that spearheaded the opposition, were disappointed – but not surprised – by the lawsuit.

“We thought the [planning board’s] decision … was well reasoned and we’re disappointed that it’s being challenged,” said Valerie Carter, who helped found BACORD last year. “We’re certainly concerned not only for its effect on the ecology of the area but, given the massive scale of this development, its appropriateness in the area.”

The Wal-Mart Supercenter would be roughly 10 times the size of neighboring Circuit City. The new 24-hour store would replace the current 121,000-square-foot Wal-Mart on Springer Drive that opened in 1992.

In its denial of the plan, the board’s majority relied on a provision that allows consideration of any adverse effect development might have on “rare or irreplaceable” natural resources.

The Widewaters appeal contends that such a subjective provision is unconstitutional, as it does not set forth any clear guidelines for the landowner.

Board member Frederick Costlow on Thursday defended his majority decision, saying Widewaters failed to present any evidence that the project would not harm the Penjajawoc.

“There had to be at least some evidence to counterbalance the evidence that it was going to create adverse environmental consequence,” said Costlow, referring to an abundance of testimony questioning the project’s impact on the nearby wetland.

When asked if the city was on firm legal ground in defending the Widewaters lawsuit, the city’s attorney hesitated for a moment before saying the case was not cut-and-dried.

“[Widewaters has] some good issues they can raise on appeal. There’s no question about that,” City Solicitor Norman Heitmann said. “But it’s not black and white, and the planning board’s decision is certainly defensible. We’ll just have to see.”

The city is expected to file a response by May 11. The city’s legal staff has agreed to expedite the matter and seek a ruling by June 2, Heitmann said.

City officials on Thursday were lukewarm in their support of the planning board, with several city councilors citing an “obligation” to defend the appointed board’s decision despite their own reservations about the ruling.

“I wouldn’t be surprised to see it overturned,” City Councilor Daniel Tremble said. “I think the planning board may have represented the community but stepped beyond their guidelines to base their decision.”

In response to the controversy surrounding the Penjajawoc, the City Council has undertaken a review of development in the area north of Stillwater Avenue.

In the planning board’s April 3 decision, Chairman Rick Fournier and George Burgoyne voted in favor of the project, while Costlow, Robert Lingley and Bob Kreitzer voted against it.

Should a Superior Court justice reverse the decision, the project would still need approval from the Maine departments of Environmental Protection and Transportation.