Wal-Mart’s request to expand its Lihu‘e store may test a law the Kaua‘i County Council recently passed limiting “big box” retail and wholesale stores to 75,000 square feet.
During a meeting at the Lihu‘e Civic Center Tuesday, the Kaua‘i County Planning Commission received a request from Wal-Mart to modify permits another planning commission approved in 1994 to increase the store from 120,000 square feet to 185,000 square feet and to increase the number of parking spaces.
Moreover, the 1994 approval of the permits and a five-phase commercial project gives Wal-Mart “some reliance” that it can actually build a commercial building of 288,000 square feet, said Avery Youn, a Kaua‘i-based agent for Wal-Mart.
If Wal-Mart can’t move forward with its plans, the courts may be the only recourse, said Youn, an architect and a one-time Kaua‘i County Planning Department director.
“Wal-Mart has a good chance in court,” Youn said.
Kaua‘i County Councilman Jay Furfaro said the current law supersedes the 1994 decision, and the county will respond to any legal action.
“If (the lawsuit) happens, we have to deal with it,” he said.
On Tuesday, the commission accepted the request from Wal-Mart to modify the 1994 permits, and has 60 days from Tuesday’s meeting to hold public hearings and to render a decision.
Wal-Mart wants the added space to house groceries, a frozen food section, a tire and lubrication operation, a vision center and a portrait studio.
The 1994 permits were originally issued to KCom, a Honolulu company which managed the 12.5-acre site on which the Wal-Mart store sits and another 11-acre site on which the expansion is proposed.
The land is owned by the Harry and Jeanette Weinberg Foundation.
Wal-Mart subsequently took over the management of the lands and is now seeking the amendment to the permits.
Youn said the 1994 approval actually gives Wal-Mart the legal basis to move forward with either a185,000-square-foot or 288,000-square-foot store.
The former is requested in the latest proposal, and the latter was approved in the 1994 decision, he said.
Both Youn and Kevin Loscotoff, a senior manager of public affairs for Wal-Mart in San Francisco, said Wal-Mart moved forward with its expansion plans before the council began looking at the “big box’” bill last fall, finally approving the measure in May.
“We had already begun our discussion of moving with the expansion before the county introduced the big box ordinance, let alone adopt the ordinance,” Loscotoff said,
Furfaro said Wal-Mart officials would be mistaken if they think the 1994 decision allows the company to construct a building whose size and dimensions are not permitted by law.
“If they think they have reliance from a previous decision at the Planning Department or Planning Commission, then obviously they have to make their concerns known to us,” he said. “In the spirit of the new ordinance, they should be very cautious in working with the 75,000-square-foot limit.”
If Wal-Mart wants to increase the size of its store, it can do so, but through the construction of a building that is no more than 75,000 square feet and would be built separately from the existing store, Furfaro said.
The roots of the Wal-Mart project go back to 1992 when KCom Corp., based in Honolulu, applied for a project development use permit with the Planning Department to build a department store, a grocery store, an office building, retail shops and a restaurant, Youn said.
Only the department store and a restaurant, McDonald’s, were built in 1994, he said.
The 1994 approval called for the construction of the first phase — a 185,504-square-foot building, although the current Wal-Mart store comprises only 120,000 square feet, Youn said.
The same commission approved four other phases as well, he said.
“Plans call for a store that would total 288,000 when all five phases were completed,” Youn said.
Furfaro said it is his belief that Wal-Mart could not go through with the four other phases because the company “never got the final permits” for them.
Wal-Mart submitted its modified plans to the Planning Department in May 2006, but the department only accepted them after Wal-Mart whittled the project down to 185,000 square feet, Youn said.
“We had to amend the master plan to build only185,000, and on that basis, the Planning Department accepted the application,” Youn said.
In documents, the Planning Department recommended the commission deny Wal-Mart’s proposal, citing among other concerns, increased traffic congestion, loss of roadways to the store and the lack of analysis for affordable housing units.
Youn said he understands the county’s pressing need for more affordable housing.
But while resort developers, as part of their rezoning requirements, are asked to develop affordable housing, he said he knows of no county laws or rule that requires a commercial business to provide them.
The council and Mayor Bryan Baptiste initially proposed the big box legislation last year to protect the rural lifestyle of Kaua‘i.
An equal number of residents on either side of the issue attended council meetings and voiced their concerns.
