City attorneys defend denial of Supercenter Developer contends Bangor exceeded authority

BANGOR – City attorneys, responding to a lawsuit filed by the developer of an embattled Wal-Mart Supercenter, on Tuesday defended the Bangor planning board’s narrow rejection of the massive development off Stillwater Avenue.

The Widewaters Group, the project’s New York-based developer, sued the city a week after the planning board voted 3-2 in April to deny a plan for a 224,000-square-foot retail center near the environmentally sensitive Penjajawoc Marsh.

In the complaint, Widewaters attorneys contended that the planning board overstepped its authority by basing its denial on a subjective provision in the city code that allows the board to consider the project’s “effect on the scenic beauty or natural beauty of the area … or rare and irreplaceable natural areas.”

Widewaters attorneys argued that the language, because it offered no specific criteria for developers to meet, was unconstitutional. In the complaint, Widewaters cited a recent Law Court finding that the town of Georgetown improperly denied a proposed campground based on a subjective requirement that the project “conserve natural beauty.”

And even though city planners have long targeted the 27.4-acre parcel in question for retail development, the city’s legal team maintained that the planning board was well within its rights to reject the specific plan.

“It would be absurd to permit rampant development in an area merely because the property is commercially zoned,” city attorneys argued in a Tuesday brief. “Under the appellant’s theory, the planning board would not be able to consider any natural features, even wetlands, if the property were located within a commercial zone.”

The Penjajawoc Marsh and its upland areas became ground zero in the debate over the proposed Wal-Mart Supercenter, which would be roughly 10 times the size of neighboring Circuit City.

The Bangor project came under fire from local environmentalists, who said the development – 5 acres of building space and 13 acres of parking – would irreparably harm the nearby Penjajawoc, home to a number of birds on the state’s lists of threatened or endangered species.

While the area is afforded a 75-foot setback under city zoning ordinances, Widewaters attorneys argue that the planning board held the Wal-Mart project to a stricter standard recommended – but not required – by state environmental officials.

Maine Department of Environmental Protection officials had promised to reject Widewaters’ initial application, which they said, placed the development too close to the wetland.

In response, the developer moved the project – except for a portion of a storm water detention pond – outside the 250-foot buffer advocated by state officials.

City attorneys counter that, while the city does not require a 250-foot setback from the stream, the planning board had every right to consider the state’s recommendations in determining whether the Wal-Mart project would harm the marsh or its uplands.

In the complaint, filed in Penobscot County Superior Court, Widewaters also alleged that planning board member Frederick Costlow exhibited bias against the project when he wrote a letter urging the City Council to increase protection of the area.

City attorneys countered Tuesday that Costlow, who ultimately voted against the plan, reasonably rejected the proposal using evidence in the record.

Justice Jeffrey Hjelm is expected to rule in the case by June 2.

Should Hjelm reverse the planning board’s decision, the project would still need approval from the Maine departments of Environmental Protection and Transportation.

In related news, Hjelm this week denied the Maine Audubon Society’s request to intervene in the case.