Wal-Mart's Plan

Wal-Mart's Proposal

Wal-Mart has proposed a Supercenter with underground parking at 182nd & Powell Blvd. in Gresham, a site which borders Springwater Trail, Johnson Creek and the Fairview Creek Headwater Restoration Project, and is located with 1/2 mile of three schools. Their original 220,000sf plan would generate 7,000 additional vehicle trips per day, and plans for a smaller store are expected to draw similar numbers. Both the City Planner and Hearings Officer denied the original Super-Center plans based on traffic and safety impacts (view the history below). Wal-Mart did not file an appeal to LUBA (State Land Use Board of Appeals), but instead resubmitted their application for a Super-Center with a smaller footprint, down from 222,000sf to 120,000sf.

While there are a variety of concerns regarding the Wal-Mart Corporation and its policies, Gresham First is committed to using relevant City of Gresham code to reject the permit application for the proposed site. Community concerns include Wal-Mart's impact on local business, existing traffic congestion, nearby schools, water and air quality, plant & wildlife habitat, noise pollution and pedestrian safety. Our group will continue our mission of promoting quality development. Together we will analyze the impacts and stay involved in the process to ensure that our community livability, safety and environment are protected.

For ways to get involved, click here...

LATEST NEWS:
WAL-MART THROWS IN THE TOWEL June 20, 2007

Wal-Mart has abandoned efforts to build a Super Center at the intersection of Powell Boulevard and 182nd Avenue in Gresham. According to statements issued by the company June 20, 2007, the company will not appeal a recent rejection by a city hearing's officer -- the most recent of several obstacles the retailer has faced in its 2 1/2-year struggle to build a store at the site.
"While disappointed by the decision, a long protracted legal battle is not in anyone's best interests," said Jennifer Holder in a news release. "Our obligation and our commitment to our customers is to find a site that works for them as well as for the city."

Thanks to all those neighbors and business owners who were involved in the process, from signature-gathering to rummage-sale organizing. We should be proud of our accomplishments in educating neighbors, raising funds for expert assistance, and contributing to a record-breaking number of comments received during the public review process.

Because of your dedication, this project was scrutinized carefully by professionals as well as residents who use the local transportation system. Hopefully, the outcome will serve as a lesson for all neighborhood activists who are concerned with the livability and safety of their community.

Please join our contact list for information about our upcoming celebration!

WAL-MART DENIED AGAIN - May 31, 2007

Wal-Mart’s proposal to build a Super-Center is southwest Gresham was denied today by Hearings Officer Joe Turner.

In April, the Land Use Board of Appeals “remanded” the decision back to the City of Gresham, asking Turner to more thoroughly explain his denial. This reaffirms his November 16, 2006 decision that denied the application due to traffic and safety concerns in our neighborhood.

The hearings officer determined that Wal-Mart failed to “sustain the burden of proof” regarding their assumptions on traffic. Specifically that Wal-Mart “failed to demonstrate that traffic generated by the proposed development will not cause the intersection of 182nd Avenue/Highland Drive and Powell Boulvard to exceed the minimum level of service and volume to capacity requirements” of city code.

Please click the links to view the City of Gresham Press Release and the complete Hearings Officer decision.

STATE APPEAL IS A DRAW--BOARD SENDS CASE BACK TO GRESHAM
Despite headlines in the Gresham Outlook, Wal-Mart DID NOT WIN the appeal hearing.

The Oregon Land Use Board of Appeals (LUBA) ordered a Hearings Officer to more thoroughly explain his reasons for denial, and take into consideration the impacts of coordinated signal timing. Our traffic expert will show that the intersections will still fail, even with signal coordination. Opponents welcome LUBA’s decision as an opportunity to ensure that the traffic safety issues are resolved once and for all.

Wal-Mart's attorney claimed victory, although NEITHER PARTY WON or LOST. Apparently, they are happy to celebrate "NOT LOSING".

After almost two years of debate, Hearings Officer Joe Turner denied a scaled-down version, citing the number of vehicle trips from the proposed site at 182nd and Powell Boulevard. Wal-Mart appealed that ruling to LUBA, claiming that the Hearings Officer was “apparently confused” about the traffic analysis.

Wal-Mart’s experts made several assumptions regarding vehicle movement to support their theory that the store would meet traffic safety standards. The giant retailer argued that the Hearings Officer denial was based on traffic studies that did not include coordinated signal timing. They contend that such changes could make a difference in traffic flow, and the project would no longer fail the city’s “capacity criteria”.

Given the highly technical nature of the issue, the board determined that the best solution is to remand the decision to Turner, with specific instructions to take signal coordination into account. But if this comes down to a battle of the experts, the prudent decision will be for the Hearings Officer to err on the side of caution.

Turner’s re-evaluation does not necessarily require an additional evidentiary hearing, or opportunity for further comment from interested parties. The Hearing Officer may simply adopt additional findings that re-evaluate the issues based on corrected traffic signal timing. He has 90 days from the LUBA decision to complete his review.

The LUBA Appeal

Oral arguments were heard on February 22 before the Oregon Land Use Board of Appeals in Salem. LUBA is like an appellate court, and is not a political body. A LUBA appeal challenges the legal sufficiency of a local government’s decision. (By law, local decision makers can choose which evidence they wish to believe, so long as the evidence they rely on is "substantial evidence." Substantial evidence is evidence that a reasonable person could rely on to support a conclusion.)

CLICK TO VIEW OUR PETITION FOR REVIEW (appeal brief)
CLICK TO VIEW WAL-MART'S PETITION FOR REVIEW
CLICK TO VIEW OUR WRITTEN RESPONSE TO WAL-MART'S ARGUMENTS

Wal-Mart did not request that LUBA overturn the Hearings Officer decision -- instead they requested a remand on the issue that they lost on - travel time analysis. Our legal team was able to successfully rebut issues raised by Wal-Mart, none of which were new. The worst case scenario is that the decision is sent back to the City of Gresham (remand). LUBA members asked good questions, and we are hopeful that they will agree with our findings--there were some critical issues that were mishandled by both the City and Wal-Mart. It is very likely that the applicant's appeal will be denied. Neither outcome would be a loss for the community.

The Board’s final order on the Gresham Wal-Mart case is due March 15, 2007. The order will end with one of the following actions:

"Affirm" (uphold) the challenged decision; MOST LIKELY OUTCOME

"Reverse" (overrule) the challenged decision; VERY UNLIKELY

"Remand" the challenged decision (return it to the local government or special district for further action); POSSIBLE

"Dismiss" the appeal VERY UNLIKELY

Can a LUBA decision be appealed?

Yes. Any party can appeal LUBA´s decision to the Oregon Court of Appeals. A petition for judicial review must be filed in the Court of Appeals within 21 days after the date LUBA mailed its final opinion and order.

HEARINGS OFFICER DENIES SMALLER STORE: November 16, 2006

Wal-Mart’s proposal to build a Super-Center is southwest Gresham was denied today by Hearings Officer Joe Turner. After receiving initial approval from City of Gresham staff in July, three neighborhood associations joined Gresham First in an appeal of the decision. A hearing was held on September 27 before a standing room only crowd (see details from the hearing below

After two years of dedicated effort from residents, we are pleased with the Hearing Officers’s decision to reject the latest proposal. The planning process carefully weighed all aspects of the proposal, including community concerns and development needs, and found that the site was truly incompatible for a development of this size.

Traffic was certainly the most alarming factor in the proposal and prompted our group to raise funds for an independent traffic engineer. Greenlight Engineering was hired to analyze the existing traffic conditions and the proposed development impacts, which are the basis for today’s denial. Much thanks to Rick Nys at Greenlight Engineering for his hard work and dedication to keeping our local roads safe.

We also hired a land-use attorney from Seattle, David Bricklin, who has extensive experience fighting large-scale developments in residential areas. After the staff approval in July, David has been instrumental in turning our case around and securing today’s victory. Ben Schonberger of Winterbrook Planning provided excellent technical arguments based on zoning and design elements.

Click here to view the City of Gresham News Release

Click here to view the Hearings Officer Decision

APPEAL HEARING HELD SEPTEMBER 27, 2006

An appeal was filed by three Gresham Neighborhood Association and Gresham First AFTER the smaller Wal-Mart proposed received initial approval from the City of Gresham. A record-breaking number of comments had been received in opposition from the local community.

The appeal hearing was held at Gresham City Council Chambers, before a standing-room only crowd (most wearing GF stickers). Thanks are due to those who were able to take time off from work, school and family duties to participate.

While various issues exist regarding the suitability of this site, traffic, safety and zoning criteria concerns were the focus of the hearing. Fundraising efforts allowed us to hire a professional team including Ben Schonberger of Winterbrook and Associates, Rick Nys of Greenlight Engineering, and land use attorney David Bricklin. Together we were able to reveal a variety of inaccurate and inadequate elements of Wal-Mart’s plan— including traffic generated by the store, incorrect traffic modeling, failure to meet transit friendly zoning criteria, and CMU zoning which does not allow stores over 10,000sf.

Although the final decision cannot be based on a popularity contest, public involvement is an important factor and citizens have expressed overwhelming concern about the impacts of a Supercenter on adjacent residential areas. After City staff and the Wal-Mart team presented their cases, the Hearings Officer heard public testimony in favor and against the appeal. Only one resident spoke in favor of the development. The Hearings Officer determined quickly that his comments regarding Wal-Mart’s low prices and employment opportunities were irrelevant, and that his decision must be based solely on whether the development would be safe for the community. Twenty four residents spoke in opposition to the project; not one was corrected on the relevance of their testimony. One woman testified that she loved WM, in fact was wearing head-to-toe WM, but knew that the site was not right. Speakers included residents of adjacent retirement community, a student driver, soccer moms, commuters, bicyclists, and neighbors worried about cut-through traffic, noise and safety.

OPEN RECORD PERIOD: Closed October 11, 2006

The record was held open until Wednesday October 11 to allow hearing participants to submit new evidence or arguments. Our professional team used this additional period to respond to issues raised at the appeal hearing – their submittals are now available for download below... click each name for their report:

Bricklin Greenlight Winterbrook

The Hearings Officer will issue his decision no later than November 13, 2006.

Can We Win?

We have a wonderful community worth fighting for. We also have a great case. Our new land use attorney has a successful record of fighting large developments in residential areas, and will present new arguments before the Hearings Officer. Other appeals have been successful after demonstrations of overwhelming community opposition in person at hearings. The Hearings Officer, Joe Turner, was sympathetic to neighborhood concerns last year, and has the power to overturn the staff decision and stop the project from being built. While we are certainly disappointed by the staff's decision, we have confidence that the Hearings Officer will agree – the safety risks in this design and the volumes of anticipated traffic make the risk too high for both vehicle and pedestrian accidents. If there is any doubt when it comes to the safety of residents, the project must be denied.

PROJECT HISTORY

CITY OF GRESHAM GRANTS INITIAL APPROVAL -- July 27, 2006

The smaller Wal-Mart proposed has received initial approval from the City of Gresham, after a record-breaking number of comments were received in opposition from the local community. Neighbors raised a variety of concerns including traffic, safety and neighborhood livability.

TRAFFIC REMAINS BIGGEST CONCERN: The proposal was changed from mammoth to huge, and reducing the square footage alone will NOT change the draw significantly. According to Jay McCoy, Senior Engineer Department of Environmental Services, “The intersection at Powell and 182nd has historically ranked in the top ten of the city’s list of high accident locations.” The main technical concerns for the project included trip generation rate, intersection capacity, turn lane storage, and the development's impact on the Springwater Trail at Pleasant View Drive.

IT'S NOT OVER: Opposition includes several Neighborhood Associations, the Johnson Creek Watershed Council and Metro Councilor Rod Park. The Centennial, Southwest and Hollybrook Neighborhood Associations hosted a joint meeting this spring, attracting hundreds of concerned neighbors. The groups voted to oppose the Wal-Mart and vowed to follow the application through the appeal process if necessary. Gresham First has also agreed to continue through the appeal phase -- our group has retained a land use attorney and traffic engineer to help demonstrate the negative impacts and zoning violations of the proposed development.

FILING AN APPEAL: The staff decision was appealed by the Centennial, Hollybrook and Southwest Neighborhood Associations, along with Gresham First. The City's Hearings Officer decision could be appealed to the State Land Use Board of Appeals (LUBA). Our land use attorney and traffic engineer will be critical in demonstrating the negative impacts and zoning violations of the proposed development during the City of Gresham appeal phase.

NEXT MEETING: Strategic details will be discussed at our next meeting. Please join our email contact list to be notified of the time and place. Many thanks are due to members of the community who have contributed time, energy and hard-earney money to this campaign. We hope you will continue this important fight to protect our community from poorly planned development.

More information is available on the City of Gresham website at www.ci.gresham.or.us/w-m

PUBLIC COMMENT PERIOD BREAKS CITY RECORD

Congratulations to everyone who participated in the City of Gresham Public Comment Period, and to those volunteers who helped make our public awareness campaign a success. Our goals at this phase of the application were to provide information on the permit application process, analyze the impacts of the development on our community, and encourage appropriate action by concerned residents. Gresham First submitted a petition with over 6,900 names in opposition to the proposal, and an additional 1,041 individual comments were received. Our traffic engineer, Greenlight Engineering, has recommended denial based on traffic and safety issues.

Click the links below to read comments submitted by:

Gresham First
Greenlight Engineering
Johnson Creek Watershed Council
Metro Councilor Rod Park
Oregon League of Conservation Voters

WAL-MART PROPOSES SMALLER PLAN (Feb.22, 2006)

As expected, Wal-Mart has resubmitted their application for a smaller size store, but the smaller size still has neighbors concerned about community level impacts such as traffic, safety, and livability. A link to the February 23 Oregonian story is provided below:

Wal-Mart to resubmit store plans - Revised proposal Reduces Size by 88,000 square feet

Both the City Planner and Hearings Officer denied the original Super-Center plans based on traffic and safety impacts. In response, Wal-Mart bought the land and will resubmit plans in an attempt to overcome the significant community level impacts on traffic, safety, and livability that are caused by a Super-Center development. The new proposal includes 122,000SF footprint w/ 511 parking stalls (318 in a single-level deck beneath the store & 193 in a surface lot). The plan does not change the store's designation as a Super-Center, which combines discount merchandise and a full-size grocery section. Preliminary drawings are below:

NEIGHBORHOOD MEETING - MARCH 20, 2006

The Southwest, Centennial and Hollybrook Neighborhood Associations hosted a Community Meeting March 20, 2006 to offer details of the plan, and also how residents can get involved in the decision making process. Wal-Mart was not required to hold another meeting for all neighbors, but these Neighborhood Associations recognized the community interest in the project, and offered details of the plan, and also how residents can get involved in the decision making process. Each Association held official votes to oppose the new plan, and will submit letters to the City during the comment period. During Wal-Mart’s first application, all three neighborhoods also voted to oppose the project. Wal-Mart representatives were invited to attend but declined the opportunity to address the general membership meeting and hear feedback from neighbors.

Email us to be notified of future meetings and other project updates.

TRAFFIC & SAFETY KEY CONCERNS

Although traffic engineers working for Wal-Mart haven't developed precise figures, estimates are that halving the size of the store would halve traffic. This assumption is questionable, and will be reviewed carefully by our traffic expert, Rick Nys of Greenlight Engineering. Proximity to other Wal-Marts and demand will not change with the store size, and therefore trips generated by a smaller footprint store will not necessarily be reduced proportionately. Congestion may even be worsened by the decreased parking and access. The City facilitated a Neighborhood Citizen Traffic “Committee” to discuss the conclusions and recommendations of the Traffic Impact Analysis.

See expanded list of concerns related to this project...

PERMIT APPLICATION HISTORY

In October 2004, Wal-Mart applied for a Pre-Application Conference. As required by the City’s Early Neighborhood Notification Process, Wal-Mart mailed 16,000 fliers in mid-January to nearby residents. The community meeting was held January 27 and was one of the largest gatherings on a land-use issue in the city’s recent history, with an estimated 700 attendees. Wal-Mart was required to wait 30 days from the neighborhood meeting before submitting their application. A Type II Development Application was filed March 23, and official completeness was announced June 20, 2005. This marked the beginning of the 14-day public comment review period, where the City Planner received a record-setting 7,471 comments. The City reviewed the application based on compliance with a number of regulations including parking, building heights, traffic impacts, landscaping, storm and wastewater and noise pollution, and on August 16, 2005 denied the plan based on traffic and safety concerns. A Hearings Officer upheld the decision in November. Wal-Mart has now begun the "resubmittal" process.

TYPE II PERMIT APPLICATION PROCESS

Pre-application conference - COMPLETED OCTOBER 2004
Early Neighborhood Involvement - COMPLETED JANUARY 27,2005
Type II Development Application - SUBMITTED MARCH 23, 2005
The applicant must wait 30 days from the neighborhood meeting before submitting their application and must demonstrate compliance with regulations including parking, building heights, traffic imts, landscaping, storm and waste water.
Public Comment Period - JUNE 22 - JULY 6, 5PM
The City will notify property owners within 300 feet of the proposal, and a notice shall also be posted on the affected property. Any person may present written comments to the City Planner which address the relevant criteria and standards and be received by the City within 14 calendar days from the date on the notice.
Decision - ISSUED AUGUST 16, 2005 Click to read the staff report...
The Manager shall make a decision based on the information presented, and shall issue a development permit if the applicant has complied with all of the relevant requirements of the Community Development Plan.
Appeal - FILED AUGUST 29, 2005. HEARING HELD SEPTEMBER 29, 2005 Click to view the Hearing Notice...
The decision may be appealed by the applicant or by persons supplying comments during the designated comment period, which would be heard by the City's Hearings Officer. Further appeal may be taken to the state's Land Use Board of Appeals.

Related exhibits and comments for this application are available on the
City of Gresham website at http://www.ci.gresham.or.us/w-m/

PUBLIC COMMENT PERIOD COMPLETE! (July 2005)

Many voices of opposition were heard by our City Planner, including our petition with a record-setting 6,290 signatures and 1,181 personal comments. Thanks to everyone that contributed to our efforts and expressed their opinion during this important phase of our campaign for responsible development.

DENIAL ISSUED FROM CITY OF GRESHAM PLANNER (August 16, 2005)

After a thorough review by city staff, with input from the applicant, neighborhood groups, and consultation by an independent transportation-consulting firm, the Wal-Mart proposal has been denied by the City of Gresham.
Click to read the Press Release issued from the Community & Economic Development Department...

Click to view the City of Gresham and DKS reports.

"GRESHAM REJECTS WAL-MART'S PLAN FOR SUPERCENTER"
The Oregonian, Wed. August 17, 2005 - Click to read this story!

WAL-MART APPEALS - HEARING HELD SEPTEMBER 29, 2005

Wal-Mart filed an appeal of the City Planner’s decision which was heard by a Hearings Officer, Approximately 100 people attended to demonstrate community concerns related to the suitability of the site. While it is disappointing that the hard work by the City Planner in preparing a decision is not acknowledged by Wal-Mart, our City was justified in denying the application and Wal-Mart must prove that the City was “unreasonable” in making that decision. While various issues exist regarding the suitability of this site, traffic concerns were the basis for denial by the City Planner and were the focus of the hearing. Click to read our full report..

Click to view the final response submitted by Chris Cook, Greenlight Engineering, and Wal-Mart.

HEARINGS OFFICER UPHOLDS DENIAL (November 2005)

The Hearings Officer concluded that Wal-Mart failed to sustain their burden of proof on three main TRAFFIC-RELATED points. “The Hearings Officer upheld the City’s analysis of traffic in denying Wal-Mart’s appeal. All the statistics and studies boil down to congestion and safety,” said Ed Gallagher, Director of Community and Economic Development for City of Gresham. “I think Gresham citizens are well served by this decision,” Gallagher went on to say. Further appeal would be brought before the State Land Use Board of Appeals (LUBA).

Click for Gresham First Press Release..

Click to VIEW THE HEARINGS OFFICER DECISION

Resubmittal

An applicant may make alterations to a proposal after exhausting local appeals, and has one year from the date of the denial to make a "resubmittal". City code states that the total local review time period for a supplemental application shall not exceed 240 days from the date of application completeness.

With the exception of a pre-application conference, the process will be substantially the same as the previous review. The main exception is that there will not be a general early neighborhood meeting. Upon determination that an application is complete, the neighborhoods and the general public will have an opportunity for comments during a second open record period. Any decision will be appealable to the Hearings Officer.

Site Information

3900 W. Powell Blvd
The proposed site on the Southeast corner of 182nd and Powell Blvd is currently occupied by a vacant QFC food store and consists of six separate lots. Immediately south of the property is Springwater Trail & Johnson Creek.

Zoning

Community Commercial
"This district designation is applied to larger nodes of primarily commercial development clustered around the intersections of arterial streets. This district will accommodate a wide range of community-scale commercial uses, including retail, services, and offices. This district also permits housing as a secondary use, with attached dwellings being developed in conjunction with commercial construction. New buildings will be pedestrian-oriented with parking placed behind or beside buildings."