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2010-05-20
Medford, OR. State’s Supreme Court Hears Appeal in Seven Year Wal-Mart Case

Wal-Mart's seven year battle to build a supercenter on an old baseball field in Medford, Oregon has led to a high school auditorium, and a hearing before the Oregon Supreme Court. Residents opposed to the superstore project have been playing legal hardball with the world's largest retailer, turning this case into a marathon battle.

The legal history of this case has been like a baseball game going into extra innings, with neighbors winning in one inning, then the city of Medford pulling ahead in the next.

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 already has a discount store on Crater Lake Highway in Medford on the northern side of the city. Wal-Mart has been trying to build a larger supercenter at the former Miles Field property on South Pacific Road since 2003.

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 reversed itself and voted to approve the project. In November of 2006, the voters in Medford responded at the ballot box by removing a developer-friendly city councilor.

Citizens reported in January of 2007 that they had taken an appeal of the 2006 approval to the Oregon Land Use Board of Appeals (LUBA) twice throughout the course of application.

The LUBA had ruled for the citizens and against the City of Medford, citing procedural errors regarding a full traffic study. The "procedural error" happened in November of 2005, when the City council denied 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 decision.

Wal-Mart, however, appealed the LUBA's decision. The MCRD said a comprehensive traffic study would show that additional traffic mitigation was needed. Wal-Mart said they couldn'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. 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 MCRD said the traffic generated by a 176,500 s.f. store would still have a significant impact on local roads. The city council approved the project.

On August 23, 2008, the citizens made their legal appeal from the City Council decision to the LUBA. 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. Wal-Mart meanwhile announced it was dropping the expansion of its existing discount store on the northside expansion project to focus all its attention on the Miles Field superstore.

On June 1, 2009, the LUBA board ruled in favor of the MCRD, finding that the city's land use regulations required preparation of a transportation impact analysis (TIA), and prohibited 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 remanded the case back to the city for a full traffic review.

A couple of weeks after the LUBA decision, 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'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.

In 2009, the Oregon Court of Appeals ruled in favor of the city, overturning the LUBA decision which had favored the MCRD. The Oregon Court of Appeals decided that LUBA had erred in its decision because it did not defer to the interpretation of officials of the City of Medford that held that no current traffic study was necessary prior to granting permits for construction. The Appeals Court held that LUBA must give deference to a governmental body's 'plausible' interpretation of its codes and regulations over any challenging interpretations. The MCRD then filed a writ of certiorari with the Oregon Supreme Court, which decided to hear the case.

This week, the Oregon Supreme Court came to the North Medford High School to hear oral arguments in the citizens' appeal from the Oregon Court of Appeal ruling. The Supreme only hears about 5% of the cases it is asked to hear on appeal, so the MCRD considered it a legal victory just to be granted the hearing.

The MCRD argued that the City of Medford failed to comply with the law -- -- its own ordinance and relevant Oregon law -- -- in determining that no comprehensive traffic study was required as a part of the review of the Wal-Mart superstore project. The MCRD attorney, Ken Helm argued the word 'plausible' included 'superficial' in its definition, and that the justices ought not use a standard which is based on a "superficial" determination.

The MCRD has noted that the city's development code requires a comprehensive study for any project that will add more than 250 car trips per day to local roads, and Wal-Mart's own estimates are 8,755 car trips per day to the new store.

But this court case is likely to turn on whether the deference given to local officials when interpreting a local development code still stands when obvious errors in review were made. The challenge to the Appeals Court ruling by MCRD is based upon the doctrine of fairness, and that the 'plausibility' standard provided by the Appeals Court is not materially different from a previously provided 'not clearly wrong' standard, which was subsequently overturned. MCRD's challenge of the Appeals Court ruling argues that a 'plausibility' standard is unfair because it permits local government officials to interpret codes and land use regulations arbitrarily and inconsistently. The MCRD says that a proper and fair standard would require the consideration of the "text and context" of the codes and land use regulations in any interpretation.

What you can do: The MCRD believes that if the Oregon Supreme Court decides in its favor, it will enhance the importance and potency of Oregon's land use regulations, and send a message to local government officials that they don't have the power or authority to weaken or ignore their own codes and land use regulations by "interpreting" them to mean little or nothing.

"If MCRD is successful in this final appeal," the group writes, we also believe that it will send an extremely powerful message to large and small citizens' groups across the country that, with the help of country's judicial system, they can still prevail in their struggles with the unjust Goliaths of the governmental and corporate world."

After the 2009 LUBA decision, a Wal-Mart spokesman said, "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." Instead of dropping their superstore plans, Wal-Mart stretched out its legal dollars.

Wal-Mart complained that the company had 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."

In June of 2009, when the City Council initially voted 4-3 to hold off until deciding whether or not to appeal the LUBA ruling to the Oregon Court of Appeals, and MCRD spokesman 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."

"The opponents are union groups and people who don't live in the city of Medford," a Wal-Mart spokesman told the media in 2009. "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."

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, The ballgame over at Miles Field has gone into extra innings. It is clear that Wal-Mart never expected to have to pitch this long or this hard to win a game. The city should have required Wal-Mart to do a full traffic impact study several years back. Their legal bills now make the cost of traffic study look reasonable.

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 your downtown development goals. For 7 long years this project has been a win/lose contest. 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 your own residents before the Supreme Court, 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. Regardless of what happens at the Supreme Court, the city council should ask the giant retailer to do a full traffic study and be prepared to pay for all costs of upgrading public infrastructure that may result from their huge superstore."










 
 
"Norman has become the guru of the anti-Wal-Mart movement" ~ 60 Minutes

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