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2009-06-18
Medford, OR. City Appeals Land Board Decision That Halted Wal-Mart

City officials in Medford, Oregon desperately want a second Wal-Mart supercenter. But they took a vote this week that guarantees they will see no progress on a superstore for the next six to nine months. On April 28, 2009, Sprawl-Busters reported that Wal-Mart had shelved plans to expand its existing discount store in Medford, Oregon. But at the same time, the retailer kept alive its plans for a second store in Medford. Wal-Mart has a discount store on Crater Lake Highway in Medford on the northern side of the city. But the company has been trying to build a larger supercenter at the former Miles Field property on South Pacific Road for more than six years. On May 22, 2004, Sprawl-Busters reported that the Medford City Council had reversed a decision by an advisory commission, and rejected a proposal to build a 206,500 s.f. Wal-Mart Supercenter on the Miles Field site. The Medford Council voted 5-1 to reverse the Site Plan and Architectural Commission's decision to approve the Wal-Mart. "It is not compatible with the surrounding area," said Councilwoman Claudette Moore at the time. "I believe the burden of proof for compatibility has not been met," added Councilman Jim Kuntz. But Wal-Mart did not give up in Medford in 2004. Two years later, the City Council voted to approve the project. In November of 2006, the voters in Medford responded by removing a developer-friendly city councilor. Citizens reported in January of 2007 that appeals of the 2006 approval had been taken to the State Land Use Board of Appeals (LUBA) twice throughout the course of application, and that the LUBA had ruled for the citizens and against the City of Medford, citing procedural errors regarding a full traffic study. The "procedural error" took place in November of 2005, when the City council denied the opposition group, the Medford Citizens for Responsible Development (MCRD), the chance to testify on the comprehensive traffic study. The LUBA ruled in September of 2007 that the city had erred, and the City Council said it would not appeal the LUBA's decision. Wal-Mart, however, appealed the LUBA's decision. The MCRD said that Wal-Mart should be required to conduct a comprehensive traffic study for the site. The group says this study will show that additional traffic mitigation is needed, and Wal-Mart will be financially responsible for those roadway improvements. Wal-Mart said they can't be forced to do a comprehensive study by the city, because one was already done 16 years ago when the land was rezoned. When the case came back to the city, the Site Plan and Architectural Commission ruled that Wal-Mart was not required to do a comprehensive traffic study. Wal-Mart opponents warned residents that: "Wal-Mart is back! LUBA ruled in our favor and told the City to do it right this time!... It's not over! Residents and business owners must urge the City Council to ask Wal-Mart for an adequate traffic study to analyze the impacts of almost 9,000 additional car trips per day in the already congested South Medford I-5 Interchange area... Now after months of secret meetings with city planning staff, Wal-Mart is trying to sneak its huge building into town without an adequate traffic study. After four years, we can't stop now!" The project needed a zone change from the Planning Commission, from industrial to commercial for a small part of the parcel. Wal-Mart cut the store by roughly 15%, from 206,500 s.f. to 176,500 s.f. The appearance of the store has been altered from a blue and grey "battleship" style, to something the Mail Tribune newspaper described as "a woodsy mountain lodge." But the MCRD said the traffic generated by a 176,500 s.f. store will still have a significant impact on local roads. The city told the Tribune that it expects the residents would appeal if the city grants Wal-Mart a rezoning and permit to build. On August 23, 2008, the citizens made their move. Their legal appeal to the City Council was filed by Wendy Siporen, a member of Medford Citizens for Responsible Development. The appeal charged that the city's Site Plan and Architectural Commission and city staff misinterpreted city code by allowing the plan to move forward without a comprehensive traffic impact analysis. A Wal-Mart spokesman said the appeal "did not come as a surprise." In April of 2008, in the middle of the LUBA appeal on the southside store, Wal-Mart announced it was dropping its northside expansion project. "At this point, we're just focused on the Miles Field project," a Wal-Mart spokeswoman told the Mail Tribune. "The economy has changed since we initially started on the development agreement." City officials predicted that the LUBA would rule in their favor, but Wal-Mart opponents predicted otherwise. "We wouldn't go to LUBA if we didn't have a strong case," said Siporen, "The Medford code is very clear, requiring a traffic study. It (Wal-Mart) will affect intersections for about a mile around, some worse than others. When you add that many vehicle trips per day, they are all going to be impacted." On June 1, 2009, it became clear that Siporen was right. The LUBA board ruled in a 16 page decision that the city council had a 'narrow view' of the scope of requirements under a site plan review. The 3 member LUBA board found that the Medford Comprehensive Plan "is consistent with petitioner's interpretation." The citizens argued that the city's land use regulations require preparation of a transportation impact analysis (TIA), and prohibit a development if it would be served by transportation facilities (ie.roadways) that operate at worse than a certain level of service. The LUBA ruled that projects like the Wal-Mart have to identify traffic impacts so that appropriate measures can be taken to maintain an adequate level of service. The LUBA agreed with the plaintiffs that the city erred by not requiring Wal-Mart to prepare a traffic impact analysis required under the local code. Wal-Mart was only asked to prepare a "limited TIA" that was not of sufficient scope to meet city requirements. The city tried to convince the LUBA that the TIA requirements do not apply to site plan review applications -- but the LUBA did not support their argument, and remanded the case back to the city for a full traffic review. But the six year marathon battle continues. This week the Medford City Council voted unanimously to appeal the LUBA ruling. "We need to know where we stand," said Mayor Gary Wheeler. Wheeler complained that the LUBA didn't give the city enough deference in interpreting its own development codes. The City Council has admitted that the city should amend its development code so a traffic study could be ordered if enough time has passed or if new development in an area has increased to the point where a new traffic study should be done. The Council had only until June 21 to appeal the LUBA ruling. The city's lawyer had recommended that a legal appeal would be a quicker way to get the Wal-Mart passed than passing a code change, "and it can certainly be a lot more focused. A code change can open up all kinds of other changes. We really don't know what the parameters of a code change are right now. We do know an appeal would be narrowly focused." The city's lawyer said the city had a 50/50 chance to win the appeal. "There is, according to the courts, some deference to local decision makers in interpreting their own code," the lawyer explained. One Councilman who voted to appeal said, "I think it's the responsibility of the council and the city to pursue the appeal so we can get definitive word and direction as to what is right and what is wrong in our code so when we make changes we make the correct changes the first time." By taking this appeal, the city will push back the approval of a Wal-Mart another six to nine months. But after six years, why would Wal-Mart be in a hurry?

What you can do: After the most recent LUBA decision, the Mail Tribune newspaper described the ruling as "a cloud" over the Wal-Mart plan. "It's a big win, and we're happy with it," said Rich Rohde, of Medford Citizens. The city now can choose to complete the traffic study or rewrite its development code. "The easy step would be to do a traffic study, and that's what we've been asking for five years," Rohde said. If the city opts to redraft its development code, the process could be delayed for many months. Either way, Wal-Mart has now not only lost 10 months waiting for the LUBA ruling, but the time to comply with the ruling as well. A Wal-Mart spokesman was not pleased. "In tough economic times we don't believe it's appropriate to turn away any job opportunities or deprive families of an opportunity to stretch their dollars," the company said. But this was a development ruling, not a jobs decision. "Without that traffic study and with future failures of those intersections, it will be the taxpayer paying for it, not Wal-Mart," Rohde told the Tribune. Wal-Mart complained that the company has made a "great effort to create an ideal store for Medford shoppers, and we don't believe we should be treated differently from any other development." Medford councilman Jim Kuntz was immediately ready to appeal. "I'm in favor of appealing it." He said a TIA could cost as much as $50,000. "That will cripple business in Medford," he suggested. "This decision will affect future development." Wal-Mart is used to spending that much money and more to review site impacts. But another Councilor used the LUBA decision to reiterate his warnings to city officials. "I had concerns about not doing a traffic study," Councilor Bob Strosser told the Mail Tribune. "My concern is good planning, no matter what the entity is." Strosser says he warned the council several years ago that traffic in that area could threaten the south Medford interchange now being built. "I am unwilling in this matter to ignore that which seems quite evident in the need to study traffic for the overall benefit of our community," he stated. On June 4, 2009, the City Council voted 4-3 to hold off until its June 18 meeting to decide whether or not to appeal the LUBA ruling to the Oregon Court of Appeals. "This has far-reaching consequences," Councilor Kuntz argued. "I'd favor immediate appeal. LUBA overstepped its bounds. I'd like to see a higher court rule and get it over one way or another." After the Council narrowly put off an appeal, MCRD spokesman Rohde said, "Some members of the council are trying to twist themselves into pretzels to avoid doing a traffic study for Wal-Mart. "It's our strong belief that citizens who care about what happens in their community ought to have a voice strong enough to counter Wal-Mart's legal machine." In August of 2008, Attorney Kenneth Helm of Beaverton, Oregon, who represents the citizens, said that a traffic study should be conducted for any new development that impacts arterial and collector roads. The city said a traffic study was only needed if a zone change was involved. But Wal-Mart did ask for a zone change -- on a small part of the property -- but a zone change nonetheless. The city says a traffic study was needed only if the zone change involved more than 250 vehicle trips a day -- which this project does. "The code says you should do a traffic impact analysis at the time of development, not 10 to 15 years ago during the last zone change," Helm said. The Oregon LUBA in 2005 required the city to show that a comprehensive traffic study was not required by code -- but the city never responded, the citizens charge. "The opponents are union groups and people who don't live in the city of Medford," a Wal-Mart spokesman told the Tribune last summer. "Approval was unanimous by the Planning Commission and the Site Plan and Architectural Commission. We are proud of our plan. We have hundreds of supporters in the city limits who back us on this." The Medford Citizens for Responsible Development are concerned about the impact of this project on existing traffic problems, compatibility with adjacent buildings and effects on local business. Since Wal-Mart first submitted an application in 2003, residents and business owners have raised these concerns. A comprehensive traffic study will identify critical problems with the existing infrastructure, and require the developer to either mitigate the impacts or not be allowed to build. Opponents expect that if a full study is done, traffic engineers will discover that the additional traffic just won't fit at the old Miles Field property. Readers are urged to email Medford Mayor Gary Wheeler at Mayor@ci.medford.or.us with the following message: "Dear Mayor Wheeler and City Council, I'm sure the folks at Wal-Mart like the idea of the taxpayers of Medford paying for the cost of further litigation in the Miles Field project. Your decision to appeal the LUBA decision is very disappointing. Why didn't the Council let Wal-Mart take the lead as a co-defendant in the lawsuit? Your appeal will delay any resolution of this second Wal-Mart superstore for another half year or longer. The LUBA sided again with residents in your city who have raised serious traffic concerns with the Miles Field project, its time for the city to simply tell Wal-Mart to do a full TIA. The cost of this study is pocket change to Wal-Mart. Instead, your vote is costing the taxpayers more. The Miles Field project will not add revenue or jobs to Medford, just another store selling groceries. Most of Wal-Mart's sales will come from existing merchants. Building a stand-alone supercenter outside the downtown is working at cross purposes with our downtown development goals. For 6 long years this project has been presented as a win/lose situation. If Wal-Mart wins, many of the neighbors lose. This is bad land use planning -- all caused by the incompatible scale of this project. Instead of fighting LUBA, its time for the City Council to take a clear stand against suburban sprawl, and give residents growth they can get excited about. This project needs a full traffic study, not one that was done 16 years ago. The least you can do is ask Wal-Mart to pick up the tab of all legal expenses from this appeal. It's their permit, let them defend it financially."










 
 
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