Judge rules in favor of Wolford mall

Developer Bucky Wolford and his Glacier Mall proposal won the latest in a four-year string of victories on Wednesday, earning a favorable ruling in a planning lawsuit.

District Judge Stewart Stadler granted Wolford's and Flathead County's request for summary judgment in the case that challenged the county's 2003 approval of a growth policy amendment and zone change for the mall.

The lawsuit was filed in December of that year by North 93 Neighbors, a group of homeowners who live near the proposed mall site and are concerned about potential impacts from the estimated $150 million project.

The lawsuit initially named the county commissioners as defendants; Wolford intervened as a defendant several months later.

Despite Wednesday's setback, however, one of the plaintiffs said there's a good chance Stadler's decision will be appealed to the Montana Supreme Court.

The ruling seemed to leave little wiggle room, though, dismissing claims that the commissioners violated the public's right to know and to participate, that their actions were arbitrary and capricious, and that the zone change was illegal because separate findings of fact weren't adopted.

"The growth policy and zoning statutes spell out specific requirements for public notice and public participation," Stadler said in his ruling. "These requirements were met."

The plaintiffs faulted the commissioners for failing to take public comment the day they approved the growth policy amendment. However, Stadler said people were well aware of this issue and were able to participate in the process by sending in written comments.

"The plaintiffs admitted [in depositions] that there was nothing more they needed to comment on at that meeting that they hadn't already commented on in writing," he said. "There were no allegations that the commissioners withheld any documents or that they participated in closed meetings. The plaintiffs were afforded reasonable opportunities both to know and to participate" in the growth policy amendment and the zone change.

Furthermore, "sufficient evidence exists to support the commissioners' decision to amend the growth policy; the decision, therefore, was not arbitrary and capricious," Stadler wrote.

The plaintiffs also presented no evidence to support their allegation of spot zoning, he said, whereas Wolford offered evidence to disprove that claim.

"The commissioners did all that was required by statute and regulation," Stadler concluded.

Kalispell attorney Ken Kalvig, Wolford's local counsel, said the ruling spoke for itself.

"I don't think we can ask for anything more," he said. "This is another in a long stream of victories. Hopefully, people will stop beating this dead horse."

Wolford first announced plans to build a 750,000-square-foot regional shopping mall in Evergreen in January 2000. His seemingly endless journey through the planning process began in July 2001 and wound through a series of public hearings with the planning board, the commissioners and the Kalispell City Council before being stymied by a procedural lawsuit in summer 2002.

Six months later, he shifted the Glacier Mall location to a 481-acre site north of the intersection of U.S. 93 and West Reserve Drive and northwest of Semitool's manufacturing plant.

In addition to the mall, the project would include a "power center" for big-box stores, a series of commercial parcels and possibly some office/residential development.

The move to a new location required several more public hearings and resulted in two more lawsuits.

To date, Wolford has earned favorable votes or favorable rulings in at least four planning board hearings, four county commissioner meetings, one City Council meeting and two lawsuits. The mall hasn't received a single negative vote or ruling at any point in the last four years.

"Every time we've felt we've been right, we've been upheld," Kalvig said. "We have a series of hurdles we have to clear before we get to the finish line. This latest ruling helped us clear a major hurdle, but we still have to get through subdivision review and we need to find out if this decision will be appealed."

Sharon DeMeester, a plaintiff in the North 93 lawsuit, said there was a good chance that would happen.

"I haven't had an opportunity to talk with our attorney yet, but I think the chances are high that we will appeal," she said. "The whole point of the lawsuit is that the commissioners aren't following proper procedures. They aren't planning - they're letting developers drive the process, versus the public."

A common criticism raised during several of the mall hearings was that a project of this magnitude would affect the entire valley in myriad ways; many people felt the community as a whole should have a substantial say about if, when, where and how it was built.

"We need a new growth policy before we go any further on these things," DeMeester said. "What we're after is putting together a growth policy that determines what goes where."

Barring an appeal of this latest ruling, there's currently only one active lawsuit related to the mall.

It challenged a county decision that prevented residents of Kalispell, Whitefish and Columbia Falls from signing a petition calling for a public vote on the Wolford growth policy amendment.

Stadler ruled against the plaintiffs in that case about a year ago. It was appealed to the Montana Supreme Court; a decision could be coming at any time.

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com