Wal-Mart appeals Gresham's decision

by: Kelly Moyer-Wade - 08/31/05
http://www.theoutlookonline.com/article/8360

Wal-Mart officials say the city of Gresham's decision to deny a 209,000-square-foot supercenter off Powell Boulevard is based on an "improper"interpretation of the law.

In appeal papers filed with the city of Gresham on Monday, Aug. 29, the company's attorneys said the city's decision is "not supported by substantial evidence or adequate findings" and that it "improperly construes the applicable law."

The city of Gresham denied the retailer's development permit in mid-August, basing its decision on traffic concerns.

"...The issue of traffic could not be resolved," Ed Gallagher, Gresham's community development director, said at that time.

Wal-Mart disagrees.

The company argues that its proposed traffic mitigation at the intersection of West Powell Boulevard and 182nd Avenue is not only safe but also allowable under Oregon Department of Transportation law.

Told that traffic generated by the proposed supercenter would tax the Powell/182nd intersection, Wal-Mart traffic engineers came up with a few ideas. The most controversial was a permissive left-turn signal, which allows motorists to make a left turn on a green light, without a green arrow, while yielding to oncoming traffic.

The city's traffic engineers said the proposal would endanger pedestrians and increase the intersection's already high accident rates.

Jim Wheeler, a senior planner for Gresham who worked on the Wal-Mart application, said in mid-August that the intersection at Powell Boulevard and 182nd Avenue is "one of the city's top 10 over a period of time for accident rates."

However, in its appeal, Wal-Mart says the permissive left turn is allowed under ODOT regulations.

The company's attorneys say the city's ruling that the permissive left turn signal would increase accident rates by five times is unsubstantiated.

"Moreover, a potential increase in accident rates does not demonstrate that the (permissive left turn signal) is inappropriate and unsafe," the appeal states.

Opponents of Wal-Mart's plans to build a supercenter on the former QFC property have prepared for an appeal since the retailer first announced plans to build in Gresham.

"We've been prepared all along," said Javon Gilmore of GreshamFirst, the non-profit group leading the movement against the Gresham Wal-Mart.

"We're disappointed that the hard work by the city planner is not acknowledged by Wal-Mart in the appeal."

GreshamFirst has raised thousands of dollars to help fight the proposed development. Much of the money was spent on a traffic engineer, who reviewed the Wal-Mart-funded traffic study.
The group's engineer will testify at the appeal hearing.

A city hearings officer will hear the company's appeal and should make a decision before the end of October. If the hearings officer upholds the city's denial, Wal-Mart could appeal to the state Land Use Board of Appeals.

LUBA has backed other Oregon cities that denied Wal-Mart entry into their towns.

In April 2004, the state board upheld a decision by the city of Hillsboro that denied Wal-Mart's plan to build a 210,000-square-foot supercenter in the west Portland suburb.

The board also sided with the city of Central Point in June of this year, when it decided Wal-Mart must get a conditional use permit from the City Council before it could build a supercenter in Central Point.

Appealing to LUBA is typical behavior for Wal-Mart, Gilmore said. "That's the pattern we've been seeing," she said.

"That's why 'Round 2' with the hearings officer is so important. 'Round 3' would be LUBA, and we assume it will go all the way to LUBA."