Wal-Mart opponents file appeal Bangor group challenges order backing Supercenter

BANGOR – A group of local Wal-Mart opponents wasted no time in contesting a judge’s decision Thursday that paved the way for the Arkansas-based retail giant to build a 224,000-square-foot Supercenter on Stillwater Avenue.

Bangor Area Citizens Organized for Responsible Development filed its appeal Friday morning in Penobscot County Superior Court, where just 24 hours earlier Justice Jeffrey Hjelm ruled that the Bangor planning board must reverse its April decision and approve the development near the environmentally sensitive Penjajawoc Marsh.

The board is scheduled to reconsider its decision at its June 5 meeting.

Knee-deep in the upland hayfield on which the 18-acre development – nearly 14 football fields in size – is planned, BACORD members decried the judge’s decision, which now will be considered by the Maine Supreme Judicial Court.

“This ruling tells communities like Bangor that they have no right to make decisions about what kind of development is appropriate or inappropriate, helpful or destructive, for their own communities,” Valerie Carter, the group’s spokeswoman, said. She added that the decision shows the “urgent need to revamp the city’s zoning ordinances.”

In his 15-page decision, Hjelm ruled that the city ordinance on which the planning board based its 3-2 denial was unconstitutional in that its ambiguity gave the board the authority to deny an application without giving the landowner specific criteria to meet.

In rejecting the plan, the board’s majority cited a section of the ordinance that allows them to consider the development’s “effect on the scenic or natural beauty of the area … or rare and irreplaceable natural areas.” In this case the natural area in question is the Penjajawoc Marsh and its upland habitat, home to a number of bird species on the state’s threatened or endangered lists.

The BACORD appeal comes as the latest step in a lawsuit filed by the project’s New York-based developer, The Widewaters Group, against the city. In the complaint, the developer argued that it had met all the city’s tangible requirements and that the planning board overstepped its authority in denying the application.

The justice’s ruling Thursday marked a victory for Widewaters, whose proposal for the Wal-Mart Supercenter has been stalled for months in state and city regulatory boards.

In an earlier ruling in the case, Hjelm allowed BACORD to participate in the lawsuit, a status that gave the group the ability to file motions and appeal any decision.

As part of its appeal, BACORD also filed a motion to put a stay on Hjelm’s ruling.

The Bangor City Council, which also has the right to appeal, will consider its options, according to City Solicitor Norm Heitmann.

Stephen Langsdorf, an Augusta attorney representing Widewaters, said Friday he was not surprised by BACORD’s appeal but believed his client was on firm legal ground.

“We’re very confident in our chances on appeal,” Langsdorf said. “The judge’s decision is clear, well-reasoned, and we think it speaks for itself.”

But Hjelm’s decision alone does not mean the bulldozers can break ground any time soon.

In addition to the city planning board’s blessing, the Widewaters proposal still must gain approval from the Maine departments of Environmental Protection and Transportation.

If the project’s history with the DEP is any indication, that might not be so easy.

An initial Widewaters plan that placed the development within 250 feet of the marsh received a cool reception from DEP officials, who promised to reject the project, saying it came too close to the valuable wildlife habitat.

Widewaters moved the construction – all but a section of a detention pond – away from the marsh, but hasn’t resubmitted its application to the DEP, instead opting to gain approval from the city first.

The proposed Bangor project – some 5 acres of building space and 13 acres of parking – would replace the existing Wal-Mart that opened on Springer Drive in 1992.

Wal-Mart also recently announced plans for a 155,000-square-foot Supercenter in neighboring Brewer.