SuperCenter opponents: Permit process irreversibly flawed

Peter McKeever

A second public hearing scheduled for the proposed Minocqua Wal-Mart SuperCenter, scheduled for Aug. 23, is already legally invalid, a citizens group opposed to the project asserted through its attorney last week.

Peter McKeever, of the firm Garvey McNeil & McGillivray, representing Northwoods First, said the approaching public hearing is saddled with the same legal defect as the first one, held June 28: Wal-Mart did not submit a complete conditional use permit (CUP) application by the time of the notice of the first hearing, as case law requires.

The group made that argument prior to June 28, too, and Oneida County Assistant Corporation Counsel Brian Desmond agreed the argument was compelling, cautioning the zoning department against holding the first hearing. He then urged the county to hold a second session.

The county now believes the CUP application is complete and the scheduled hearing is legal, having received a Department of Transportation Traffic Impact Analysis that was missing at the time the first hearing was noticed. Northwoods First still doesn’t believe the application is sufficient.

But even if it is, McKeever argued last week, because it was inadequate at the time it was submitted and was still missing information at the time the first hearing was noticed, the entire CUP process is invalid.

“Whether it is complete now is irrelevant,” McKeever said. “Any information submitted after the notice of the first hearing can’t be considered. We don’t believe that case law supports their presumption that just because it’s complete now that a second hearing is valid because it doesn’t give everyone an opportunity to speak out.”

According to McKeever, those attending the first hearing deserved an opportunity to comment on a complete application, with all the details and proposals of the project included. That they did not means the company should have to scrap the application and start over.

“The law intended that when a CUP was submitted, the application would be final and there would be a hearing in which the people, if they said they didn’t like it, could voice their opinion to vote it down,” he said. “Wal-Mart shouldn’t be able to constantly revise and keep the cycle going by stating, ‘Oh, you don’t like this, so let’s try this,’ and drag the process out.”

That issue aside, McKeever maintains the CUP application is still deficient in important respects, regardless of the county’s position. Of particular concern is the stormwater management plan submitted for Wal-Mart by Griffin Consulting, which was analyzed for Northwoods First by Joseph Dorava of the engineering firm Vierbicher Associates.

“We believe this analysis supports the view that the application is not complete and that the committee cannot find that the proposal meets the criteria of the county zoning ordinance for the issuance of a CUP,” McKeever said.

In an Aug. 15 letter to zoning committee chairman Bob Metropulos, McKeever said Northwoods First asked Vierbicher to review the plans with regard to water quality, wetland impacts and flooding, using all the data possessed by the zoning department. Vierbicher found the information “insufficient” to fully answer Northwoods First’s questions, the attorney said.

Mixing clean and polluted water

Among other things, McKeever wrote, Wal-Mart’s plan fails to include a detention basin outlet structure design, which Vierbicher says is necessary to verify modeling for stormwater runoff levels during storm events, a critical public safety need.

The mixing of clean roof water and polluted parking lot water in the proposed management plan was another area of concern. Unlike the Wal-Mart plan, the Vierbicher analysis recommended using areas to treat parking lot water before it is mixed with the clean roof water.

“In these areas, the polluted water from the parking lot can be filtered, grease and oil can be separated, and the runoff would be cleaner before it is mixed with the roof water and before it reaches the downstream detention which contains wetlands,” the analysis stated.

Furthermore, Dorava wrote, the Wal-Mart plan does not supply supporting data to demonstrate that stormwater conveyance features are properly sized.

“It is necessary to know that the proposed ditches and culverts are sized to carry the anticipated flows that will be received during specific design storms to evaluate the risk to public health and safety,” he wrote. “The water depth and water velocity at each culvert and ditch must be reviewed to determine if and when roads will be overtopped, if ditch banks are stable, and whether culverts need to be larger or require special erosion control practices.”

Wal-Mart has obtained Department of Commerce (DOC) coverage for its stormwater discharge plan, and the Department of Natural Resources (DNR) has stated its approval isn’t needed, but McKeever says questions about stormwater management remain.

“Whether it (the stormwater runoff plan) meets state standards is a different question (of whether it is deficient for public safety), and the Department of Commerce permit is a no-review review – you submit information and it issues a permit,” he said.

The attorney reiterated that point in his letter to Metropulos.

“Commerce simply rubber-stamps stormwater management plans that it receives,” he wrote. “It provides no technical or site review. Although the submitted plan may meet weak Department of Commerce criteria, it will not adequately protect water quality in Oneida County and it may not provide adequate levels of public safety and property protection.”

There’s a question, too, about what the DOC permit covers.

“There is some debate as to whether the DOC permit covers the entire project or whether a WDNR permit is still needed for the roadway construction and adjoining lot improvements,” Dorava stated in his analysis.

On the matter of wetlands, the Vierbicher analysis disagreed with Wal-Mart’s contention that none is affected to any extent necessary to need a permit.

An existing wetland that will become an island in a stormwater runoff detention pond could not be preserved or protected with the proposed construction plan, Dorava argued: “The perched wetland island is likely to be eroded into the surrounding detention area during high flow events.”

Incomplete data

Finally, the Vierbicher analysis concluded, it is impossible to tell whether the project meets state water quality performance standards because of incomplete data provided by the Wal-Mart consultants.

“Oneida County deserves better than this,” McKeever wrote to Metropulos. “The conclusions of this analysis mean that the planning and zoning committee cannot make the factual findings that are required by the county zoning ordinance for the approval of the conditional use permits.”

McKeever reminded Metropulos that the burden was on Wal-Mart to demonstrate that the SuperCenter would not be detrimental to public safety, not on those who oppose the SuperCenter to show that it would be detrimental.

“In the absence of critical information,” he wrote, “the applicant has not met its burden.”

Richard Moore can be reached at editor@lakelandtimes.com.

Published: 2006-08-22 06:00:00

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