A circuit judge on Tuesday will hear an antisprawl group's lawsuit that charges the county violated state open government statutes by approving a building permit for a Wal-Mart Supercenter on U.S. 19.
The lawsuit, filed in July by the Coalition for Anti-Urban Sprawl and the Environment, asks the court to rule that meetings of the county's Development Review Committee held during the permit approval process were illegal under the state Government-in-the-Sunshine Law because they were closed to the public. The group wants Wal-Mart's building permit invalidated and future meetings of the DRC opened to residents.
"There is a danger when something as large and politically powerful as Wal-Mart comes into a community and starts meeting with government officials behind closed doors," said Ralf Brookes, an attorney for CAUSE. "It's not the democratic way."
Though the lawsuit was filed against the county, Wal-Mart, the world's largest retailer, soon signed on as an intervener. Since that time, Brookes said, the company has tried to drown the lawsuit in paper, making discovery requests for, among other things, a list of donors to CAUSE and the group's membership list.
Assistant County Attorney Kurt Hitzemann said Wal-Mart has been handling the case since the time of its intervention, with the county reviewing and approving the company's filings. Hitzemann said he saw nothing improper in Wal-Mart's discovery requests, and he said that CAUSE had asked the company for an accounting of all the donations it has made to county commissioners.
"Discovery is exactly that. It's wide open," Hitzemann said. "The notion is that if you are defending a suit, you leave no stone unturned."
The idea of a corporation taking the lead in a lawsuit that focuses on open government issues is vulgar to Brookes, who said the tactic highlights the invasive and corrupting influence of the retail giant on local governments and the communities they represent.
"It's very suspicious," he said. "Who is really in control? Is it Wal-Mart and their lobbyists and their attorneys?"
The explanation for the county allowing Wal-Mart to take the lead in the litigation, Hitzemann said, is simple: Protecting the company's interest in holding on to its building permit and the county's interest in keeping meetings of the DRC closed to the public both depend on a favorable ruling.
"I don't see anything that is atypical about this situation," said David Theriaque, Wal-Mart's lead attorney in the case. "The interests are aligned."
County Commissioner Diane Rowden said she was not aware that Wal-Mart had intervened in the case and had been filing discovery requests, but was comfortable with the turn of events and the county's position on the DRC.
The proper time for citizen input on development issues, she said, is before the Planning and Zoning Commission.
The DRC is composed of representatives from various county departments; it includes no county commissioners. The representatives review building permit applications to determine whether they are consistent with applicable policies and laws, then refer their findings to Grant Tolbert, head of the county building department.
Both Wal-Mart and the county argue that the DRC is merely a fact-finding, rather than a decisionmaking, body. As such, they argue, its meetings are not subject to the Sunshine Law and need not be open to the public.
"That's playing with words," said Jon Kaney, general counsel to the Florida chapter of the First Amendment Foundation. "They are applying law to facts. When you are looking at facts and determining whether they are consistent with law, that's making a decision."
In May, the county amended the DRC's policy to make the fact-finding function more explicit. According to Hitzemann, the changes brought the stated policy of the DRC in line with what had, for some time, been its actual function.
According to Brookes, recent court decisions have led DRCs across the state to open their doors to public scrutiny, but not in Hernando County.
"Hernando County is kind of weird . . . so secretive . . . you would have to go to Cuba to find something like it," Brookes said.
The fate of the Wal-Mart in question, now under construction and one of several to have been brought to Hernando County in recent years, will be in the hands of senior Judge John W. Booth, a roving 5th Circuit jurist with an office in Brooksville.
All sitting circuit judges in Hernando County were recused from the case in August. Richard Tombrink, the administrative judge for Hernando County who signed the order of recusal, did not return calls from the Times seeking comment on his action.
_ Will Van Sant covers Hernando County government and can be reached at 754-6127. Send e-mail to vansantsptimes.com.