Court releases tentative opinion in Ontario, Wal-mart suit

The court did side with the city in two areas, finding that the project does properly address any environmental impacts to air quality and that the city did not have to notify a nearby private school.

Given the number of issues raised by the association, the majority of the city's environmental report has been upheld by the courts, said John Brown, Ontario's attorney.

If the court in its final ruling sticks with the opinion outlined in the tentative decision, Brown said he would advise the City Council of its legal options, which includes appealing to the state Supreme Court.

"I would hope this could be resolved sooner rather than later," Brown said.

Ultimately, how the city proceeds will be up to the council, he said.

In January, an appeal filed by the residents asked the court to invalidate the environmental report approved in 2007. The appeal contended that the report failed to:

The appeals court's tentative opinion, released Oct. 27, isn't final until after oral arguments, which have not yet been scheduled. Once that date is set, opposing counsel will each be given 15 minutes to make their case.

"We look forward to the opportunity to present oral arguments," Brown said.

In his experience, Briggs said, there typically aren't any significant changes from the tentative opinion to the final one.

But, Briggs said, there is always a chance that something could change during oral arguments.

Councilman Jim Bowman, who had not been briefed on the latest developments, said he has never seen a project linger to the extent the Walmart case has.

"It's been painful for everyone involved and it has divided our community," Bowman said.

In recent months, Bowman has expressed doubts about the project.

"Although I remain open-minded, I am not enamored with the project because of its lack of response" to neighborhood concerns, Bowman said.

In their appeal, residents have long questioned the city's findings that the project would not result in urban decay, Briggs said.

The analysis conducted by the city found that no significant urban decay would occur as a result of the project.

The city's report also found that if a grocery store were to shut down as a result of the Walmart project, other uses could fill the vacancy. An Albertsons market lies three blocks to the south.

But the court doesn't agree.

The report, the opinion states, "does not look at the actual demand for vacant food store space, and therefore did not adequately assess the likelihood of urban decay resulting from the project."

Urban decay, as the opinion described, can be attributed to increased competition and the economy. Both could lead businesses to close and, over time, the buildings to deteriorate.

The evaluation of that possibility, Briggs said, will paint a clearer picture of the project's economic impacts for the council and other city officials.

Any economists or politicians, Briggs said, will argue that small businesses are the backbone of the economy.

"Walmarts are small-business killers," he said.

But Brown said the city's environmental report properly addresses the issue of urban decay and that he can't wait "to make that case to the Court of Appeals."

If the amended environmental report finds there is a significant impact to urban decay, it appears the city will have to address an alternative project that does not include a grocery store.

Briggs said he was pleased with the request that the city consider a Walmart without a grocery store.

"They insisted it can't be done," Briggs said. "They came up with the reason that a regular store would not make any money. That's nonsense."

The direction, although tentative, by the courts validates neighbors' concerns, Briggs said.

"It's not about the Walmart. It's about the size of the project in that location," Briggs said.

But in its tentative opinion, the appeals court did not side completely with residents.

In its appeal, the association failed to substantiate its claims regarding air quality impacts, the court document states.

The document backs the city's environmental report, saying that it adequately "identifies the air pollutant the project will generate."

The opinion also denied the contention that the school districts should be notified whenever a project involves construction or alteration of a facility that could emit hazardous air emissions within a quarter mile of a school.

A statute used to support the claim does not apply, the opinion states.

Briggs will be allowed to recover all his costs, not including lawyer fees, associated with the appeal.