HomeMy WebLinkAbout04/19/2006 Closed Record Appeal Hearing 29
CLOSED RECORD APPEAL HEARING
Re: Hearing Examiner's Decision for Proposed Wal -Mart Superstore
at South 64 Avenue and West Nob Hill Boulevard
APRIL 19, 2006 — 6:00 P.M.
THE SEASONS
101 N. Naches Avenue
1. Roll Call
Present:
Council: Mayor Dave Edler, presiding, Council Members Ron Bonlender, Micah
Cawley, Norm Johnson, Bill Lover, Neil McClure, and Susan Whitman
Staff: City Manager Zais, City Attorney Paolella, Acting City Clerk Moore,
and Records Clerk Watkins
Attorneys: Ray Paolella, City Attorney; Terry Danysh representing the City of
Yakima; James Carmody, representing Concerned Citizens of Yakima;
and Jack McCullough representing Wal -Mart
Mayor Edler called the meeting to order at 6:00 p.m.
2. Open Hearing for final legal arguments of Appellants
A. Concerned Citizens of Yakima (CCY) —15 Min.
Mr. Carmody gave his closing argument:
I have heard it said that people shouldn't care as much as this community
cares. These people should have withered and gone by the wayside and not
pursued what they think is the best for this.community. They shouldn't fight
the massive wealth and power that has been put against them. They're here
and they are going to stay here. They care about this community and its
legacy for the future. They are trusting you to make a decision based on
what is good for the community not economic or personal interests. Listening
to the radio this evening, KIT was discussing this hearing; saying it is just
going to end up in the courts. The two individuals didn't think the Council had
the capabilities to handle this quasi - judicial decision. But I think you do. It's
going to take work, courage, thought, and direction separate and apart from
suggestions that will come to you.
There are three levels in this proceeding; first is the politics. You don't make
decisions on politics but on facts and the law. But, the politics of this matter,
this entire situation has been premised on assertions that Wal -Mart will
increase employment, tax revenues, and bring back retail customers to the
city. If you look at the record you will see that is not the case. Northern
Economics provided an impact analysis that concludes there will not be tax
revenues and no increase in employment. It will just be redistributed. It will
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cannibalize existing sales and move them to this location. Don't be swayed
that it will be an economic boom. There have been over 3,200 signatures
against it. Only one person spoke in favor. Not one local paid expert has
come before you to support Wal -Mart. Look at the experts that have come
before you; their job is to go from city to city selling Wal -Mart. We cannot
match Wal- Mart's money. The people who live here are the ones speaking to
you and participating in sculpting and shaping the future of this community.
It's not about tax revenues but it is about the community. I ask you to spend
more time going through the materials if you haven't already because this is a
forever decision that will shape and sculpt West Valley.
With regard to Wal- Mart's appeal, no matter how they articulate their position,
it is all about money. They want to pay less and put more onto this
community. There are 349 Wal -Mart stores for sale today, not the 32 in the
EIS. They need to be converted. They are vacated and they are vacated
quickly. The EIS and staff said we want a bond for protection, but WaI -Mart
doesn't want to post bond nor make the building convertible. They just want
to deal with it some time down the road. Wal -Mart also wants to adjust the
lighting standards. They don't want the city and the police to come in and say
these lights are too bright. When driving by the current Wal -Mart, look at the
lighting level then take a look at residential neighborhoods and why that
mitigation condition is there. It needs to remain in place. Wal -Mart has
• asked to cut back on their share of road improvements. I don't think they are
paying anywhere near the road improvements they should. Title 12 says
when you are doing a public improvement you build to the same standards as
they exist today. It is clear that Wal -Mart deteriorates Nob Hill Boulevard
below acceptable levels. They just don't want to pay to fix it. The only way
you can defer and adjust Title 12 is through the City Engineer and a deferral
agreement. That doesn't exist. They want the City to pay a portion of the
north side, all of the south side, or forget about putting improvements in.
With16, 000 cars on those roads, you'd better put all the sidewalks and
streetlights in place. There should be no exception for Wal -Mart. They need
to pay for sewer extension to and through their property but they don't want to
pay that. It is galling that they want Council to modify those conditions to say
that if they do a development agreement, it will supersede the conditions in
this approval. That's how we got here in the first place.
What I think is an important issue, and no one for four years thought it was
important, is the airport safety overlay (ASO). Your ordinance is clear; this
property is in the airport safety overlay. Your ordinance tells you how to
resolve it. The airport manager looks at it and tells you what uses are
compatible and which aren't. The City didn't do that. The airport spoke
saying this is a non - compatible use (he read from the Doug Hahn letter).
Mr. McCullough objected to his reading of a letter that was previously
excluded. Mr. Carmody continued reading.
Your city attorney called the airport attorney, Jim Adams, about that letter.
Mr. Adams wrote that he believed it accurately reflects the view of the Board
as well as the staff of the air terminal.
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Mr. Carmody then spoke about the testimony of David Ketcham. When Mr.
Danysh asked him if this is compatible or not, his answer was
"I'm not so sure I'd say it's compatible, I would say that I don't think it's
incompatible because I don't think it necessarily serves the airport but I
don't believe that it serves to work against the airport".
Even the Wal -Mart expert wouldn't say it is compatible. That alone should be
a reason for turning this down.
We talked about the concurrency and the Title 12 requirements, and the
wisdom of making the decision at this time. Mr. McCullough told you that in
reading the rezone ordinance I was the only one in the world who has ever
read that ordinance which says it will become final unless it is appealed by an
aggrieved party. I'm the only one who ever read it and concluded that it is
held in abeyance, yet the mayor told us we're not going to move forward.
You each read that and see if it reads that way to you, because that's the
solution to a logical decision, to wait for this mess to unwind and it will unwind
efficiently and quickly. Don't further compound this mess; be smart about it
by waiting and making a reasonable judgment. Mr. McCullough hasn't
answered the question. If the rezone was reversed on appeal would they
tear the building down and start all over? No one would answer that. This is
difficult to summarize; you have a lot to go through. Think about it; don't rush
to judgment. Investigate, go over the record, feel comfortable with that
decision. I don't think it is that tough of a decision. Apply Title 12; recognize
the ASO; don't place on taxpayers burdens that belong on WaI -Mart, and
don't rush to judgment. With that, you will come to a proper conclusion.
B. WaI - Mart (W - M) — 15 Min.
Mr. McCullough gave his closing argument:
Your job is centered around the Hearing Examiner's decision. We have
spent a lot of time talking about the process, the issues the Examiner went
through, the substance to this. It has to do with the issue of compatibility, the
record the Examiner went over; dealing with issues of lighting, traffic, noise,
stormwater, dust, every possible impact that relates to compatibility. The
Hearing Examiner concluded that the impacts of this project will be fully
mitigated with these conditions and will be compatible in the area it is to be
located. We have talked about the ASO and classes of use. But that may be
irrelevant, regardless of what class this is, 1, 2, or 3, the issue boils down to
compatibility. In the record, the Hearing Examiner supported the conclusion
of compatibility: Not just all of our experts, but the experts that the City
independently hired supported compatibility. Mr. Carmody suggested we
have a traveling road show. The City said: 'We're going to make you do an
EIS, we are going to look at your studies, we're going to hire other experts
and make you pay for them, and the City will change the EIS based upon
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what those experts determine." There is no record of contrary evidence on
the issue of compatibility. There is a deep- seated feeling that things may not
work out right by local residents. But, concerns are different than evidence
before the Hearing Examiner. In the process, there are two issues; the use
issue (use class versus review) and the ASO. The Hearing Examiner wrote a
very thoughtful decision, almost a jurisprudential decision, looking over the
history of use versus class. The way it's treated in this decision is the way
the City has already treated the distinction of class of use and class of review.
In the response, the appellants aren't able to point out anything in the record
that refutes that. They had to come back with new evidence that wasn't in
the record. They showed up on Monday night, and in the very last
administrative proceeding in the four -year process, drop a document that
wasn't presented to the Hearing Examiner and say, "Hey, this proves it." We
had filed a motion to strike certain portions of this information, but we are •
withdrawing that motion. We reserve our objections to the additional
materials submitted on Monday that were not submitted to the Examiner, nor
submitted prior to the hearing that we had no opportunity to respond to. If
you look at what former Council Member Mattson said, and this is the gist of
the objection on the usage, he said that he wanted to bump up the level of
the review of all Class 1 uses to Class 2 review. That's exactly what the
ordinance says. Mr. Mattson himself is the source of the very distinction on
which the Hearing Examiner relied in his decision. With regard to the ASO,
again the Hearing Examiner issued a careful decision saying this is a Class 1
use. You don't need to go to the Airport Board as long as it is not an
incompatible use, supported by code. In response, there are no citations to
code by the appellants. What they presented in their brief Monday was a
document from the Washington State Department of Transportation, Airports
& Compatible Land Use. This was the smoking gun that was to prove their
case. We withdraw the motion to strike. It was represented to you that this
was the best practices, but page 10 says it is not; that they haven't done the
best practices manual yet and this is just a discussion paper on compatibility.
It is not the law of the City; not the law of the state. It is merely a discussion,
a set of ideas, guidelines that can be used for future planning. The appellants
looked on page 42 where it says in Zone 4 you should have population in
buildings that is less than 40 people per acre so they said this site has to be
incompatible. But, if you look at page 42, at Zone 4 and its advice for non-
residential land use, it says All non - residential land uses permitted outright
subject to special function guidelines. What is a special function guideline?
Number 3 says zoned land is for uses other than for schools, playfields,
hospitals nursing homes daycare facilities and churches. These are the
places of public assembly that we identified to the Hearing Examiner, that the
Hearing Examiner said were the potentially incompatible land use that we
presented to you in our brief. How this comes together is that, in fact, this
last minute evidence supports the decision that the Hearing Examiner
rendered with respect to this project.
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We have appealed a number of conditions. They can be looked at in three
categories:
1) Administrative clean up — should we have to go to the Clean Air Authority
or should the City be the authority on decisions about satellite dishes etc.
2) Administrative flexibility - on issues like noise, lighting, store closure, we
welcome the City's oversight to this store and its operations, on whether
lighting is appropriate, and to ensure long term compatibility. We're just
asking that over the long term you provide flexibility for this site and allow the
planning director to use discretion.
3) Traffic related — our position is that we are fully ready to pay our share
and beyond. We walked away from our appeal of the condition having to do
with 64 and Tieton and 64 and Washington. We are trying to find a way to
ensure these facilities are constructed involving all parties - the City, Wal-
Mart, Congdon, and future development. The Hearing Examiner suggested,
if we move on, a development agreement would be the appropriate way to do
that. This is not a private process but a public process through a hearing in
front of the City Council deciding how each traffic condition will be
constructed. The City has a way to work this funding into its Tong -term plan.
Your job is to look at the Hearing Examiner's work.
Some have said that you were elected to take a certain action on this
process. That's a disservice to the function you perform. Discharge the
obligations of your office to the best of your ability. In this situation it is not
how to write new rules but to make a decision based on existing rules. Not
can I change the rules. Not would I like to do it differently? Maybe you
disagree with this decision. It doesn't matter. What does matter is, was the
decision correctly made by the rules of today. The rules today say that this
site is zoned CBDS. The uses are permitted. In the record, the Hearing
Examiner decided that this project can be fully mitigated with the 52
conditions. The decisions about zoning of this site, about whether this use
should be permitted, are decisions made four years ago. They are not
decisions for tonight. Tonight's decision should be based on the record,
based on the findings of the Hearing Examiner. That would lead you to
support the decision of the Hearing Examiner. You would have to find that
there was a clear error made, not just that you disagree or that you prefer to
have it go the other way. There would need to be some clear error that the.
Hearing Examiner made in order to overturn it. Our suggestion is that clear
error is not there. We appreciate all the time you have spent on this.
3. Close Hearing
Mayor Edler closed the closed- record appeal hearing at 6:31 p.m.
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4. City Council deliberations
A. City legal review:
1. Motion to Strike
The WaI -Mart attorney indicated they have withdrawn that motion.
2. New Evidence
There is new evidence offered which you have yet to see. First, there are
the letters from Doug Hahn and Jim Adams of the Air Terminal Board.
They were not before the Hearing Examiner. They are, as such, new
evidence and therefore should not be provided to Council. Mr. Danysh
said that it was his professional opinion that Council should not review the
letters. He said that Mr. Carmody argued they are appellate argument
and he made the arguments contained in the letters. That is appropriate.
But, today he quoted from them and, to the extent those letters are
purported to be the opinion of the Yakima Air Terminal Board, you must
ignore what you have heard Mr. Carmody read into the record because
we do not have confirmation they are indeed the Board's opinion. They
are new evidence. The arguments contained in them are fine, but if
those letters stand for the proposition that the Air Terminal Board has
participated in.this process in a timely fashion and is opposed to Wal -Mart
being where it is, those letters and that opinion must not be considered as
they were not part of record.
With respect to the 20 -page transcript from the July 2002 deliberations on
Congdon rezone, the offering by Mr. Carmody of that transcript was to
further elaborate on the question of legislative history. Mr. McCullough
struck their objection and allowed it, rendering this issue moot. Mr. Danysh
does not believe the 20 -page transcript is appropriate for Council as it
contains many other references to other issues that were not part of why
the transcript was offered and not part of why the rezone ordinance, No.
2002 -45, was before them. It is his opinion that the Council need not see
this transcript any further, especially since Wal -Mart has withdrawn their
motion to strike and Mr. Carmody's argument is allowed to stand.
With respect to the petition from Wilma Koski, Mr. Danysh said normally
an appellate hearing is not subject to petitions. He agrees with Mr.
Carmody's argument that the petition of 3,200 signatures represents
opinion, however, even if all they are is opinion, the signers do not purport
to be members of Concerned Citizens of Yakima and the rules at the
outset of the hearing established the legal position that parties allowed to
make argument are to be representatives of the appellants. The petition
does not have any evidence to indicate that all or some of the signers are
members of CCY. Under those circumstances, the petition cannot be
considered as it would be new evidence.
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B. City legal counsel /support staff response to questions from Monday
evening
There was discussion between Mr. Carmody and Mr. Danysh on the
process of answering questions. Mr. Danysh clarified that one of the
minor exceptions to the rule for new evidence is the City Council is
entitled to seek clarification and additional information to answer a
question it has.
Mr. Danysh pointed out that Council Member Cawley's question had to do
with the effectiveness of the rezone ordinance, No. 2002 -45, whether
there was an aggrieved party. Indeed there is an aggrieved party, the
NFRD who filed an appeal. Council Member Cawley said his question
had been answered.
BONLENDER MOVED AND McCLURE SECONDED TO ACCEPT THE
RECOMMENDATION TO NOT ENTER THE NEW EVIDENCE. The
motion carried by a 6 -1 roll call vote; Johnson voting nay.
C. City legal counsel review of decision options
Mr. Danysh reviewed the decision option protocol document. It contains .
no substantive recommendations, nor legal advice with respect to issues.
It describes the four legal options that the Council has with respect to the
Hearing Examiner's decision. Simply stated, the options are to approve
the Hearing Examiner's decision as is, reject it as is, approve it with
modifications, or remand it back to the Hearing Examiner. Mr. Danysh
reviewed each of the options in detail. A copy of the document has been
put into the record as Exhibit No. 4.
Council Members had no questions regarding the protocol.
Mr. Carmody registered objections to the protocol noting that the standard
of review on many of the issues they presented are matters of law. He
said the challenge is error of law that allows Council to review those
determinations de novo and they do not need to be evaluated in terms of
substantial evidence. He didn't feel the protocol addressed that.
Mr. McCullough commented that they would be happy to provide what
they think legal should be if necessary. Mr. Danysh responded that
Mr. Carmody accurately points out a complicated legal point. Some of
those issues are issues of law but the protocol allows Council to
accomplish that. Mayor Edler said the information has been taken under
advisement.
Following a short break, the meeting resumed at 7:00 p.m.
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5. Council Discussion /Action
Mayor Edler requested the City Council choose one of the decision options
as stated by legal counsel.
BONLENDER MOVED TO REJECT THE HEARING EXAMINER'S
DECISION. There was no second.
McCLURE MOVED AND JOHNSON SECONDED TO APPROVE THE
HEARING EXAMINER'S DECISION WITH MODIFICATIONS.
Upon request, Mr. Danysh explained the difference between approval with
modification and a remand. If a majority approved the Hearing Examiner's
conditions with modification, you would essentially be modifying the existing
conditions, or adding new conditions that you suggest. If by reviewing the
conditions item by item, you conclude something is missing that is important
enough you don' t think you can make a decision without getting more
information and it is critical to whether or not you can approve with
modifications, that would be an appropriate time to remand that condition.
You will need a majority. Discussion continued between Council and counsel
on how to handle suggestions and remands.
Council Member Bonlender gave his opinion on the Wal -Mart project. He
said he would like to reject the Hearing Examiner's decision as he thinks it
was made without any regard to the socio- economic impact. Wal -Mart says
that is irrelevant for land use consideration and the Hearing Examiner says it
is not his job to evaluate the socio- economic impact. On page 20, line 15, it
says that job is in the hands of the legislative body, basically the City Council.
He thinks everyone has avoided the issue and is relying on Council to make
the decision on that impact. The compatibility he referred to is not just the
building that will sit there, but what happens to it if Wal -Mart goes out of
business. The Hearing Examiner admits it would become blight and is trying
to mitigate that by having Wal -Mart build it in such a way to be able to rent
out to smaller tenants. Wal -Mart says that's not feasible. We're in a lose -
lose situation. If Wal -Mart fails, we've got a vacant commercial building. If
they are successful, its competitors are out of business. The lawyer for Wal-
Mart doesn't think that is evident. He then referred to an article that notes
that Wal -Mart itself realizes the impact they have on surrounding
communities. They have developed a new program to offer local businesses .
help with financial grants and training on how to survive with Wal -Mart in their
town. This cannot be summarily dismissed, it is one of the most important
factors. If Wal -Mart is successful, we have boarded up buildings from our
friends and neighbors who manage those businesses, and it could even
cannibalize their own store on the east side of Yakima and it might close. He
then talked about Wal- Mart's employer practices. He looks at this as an
economic transfer that will be harmful to the community and will cause blight.
It will cause vacant structures. Wal -Mart is not a level playing field. He said
he feels that the Hearing Examiner totally ignored this and should not have.
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Mr. Danysh again offered clarification on the process. You cannot both
approve and remand. You have to get the information in front of you that
completes the record. If that requires a remand, you do that, get the
information, and at that time make a decision to approve, approve with
modifications, or reject. If you have questions about information that is not in ,
the record, it would not be appropriate to approve under any circumstances.
He pointed out that if Council decides to remand they make no decision on
Wal -Mart one way or the other.
COUNCIL MEMBER JOHNSON WITHDREW HIS SECOND. COUNCIL
MEMBER McCLURE WITHDREW HIS MOTION.
CAWLEY MOVED AND McCLURE SECONDED TO REMAND THE
HEARING EXAMINER'S DECISION TO CONDUCT ADDITIONAL FACT
FINDING WITHIN THE LEGAL TIMELINES. .
Council Member Bonlender asked if it was possible to add a condition that
referenced the New York Times article he previously referred to. Mr. Danysh
clarified that this is a motion to remand, not a motion to approve with
modifications. If there is a condition that addresses your concern
insufficiently, you could direct the Hearing Examiner to explore the question
of blight, the question of socio- economic impacts, and further explore that
question as required under the law. The kind of evidence that comes in could
lend itself to the condition he is proposing. But that condition is not
something that would be imposed as part of this remand. It would only occur
if Council were to approve Wal -Mart but modify with conditions.
Discussion and clarification continued on the steps that can be taken and
how best to accomplish anything with regard to remands, conditions,
approval, or rejection.
Mayor Edler offered his thoughts: I too was disgusted and was critical of this
decision. We were elected to make decisions not to push things back into
someone else's hands. I believe we were supposed to act on this. I am
discouraged that we would take the remand route at this time when this has
been before us for so many years. If you're scared, get a dog.
Council Member Bonlender agreed, and said he would like to see a decision
made up or down. He doesn't think we should look for any excuse to remand
or delay. Because of that, he suggested going through the conditions one at
a time.
Condition #7 — No discussion.
Condition #16 - No discussion.
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Condition #18 - McCLURE MOVED AND LOVER SECONDED TO REMAND
ITEM #18 FOR CLARIFICATION ON WHY THEY USE CITY /STATE NOISE
STANDARDS WHEN THE CITY DOESN'T HAVE ANY AND WHAT ARE
THE STATE STANDARDS. MORE IMPORTANTLY, WHAT DOES THE
HEARING EXAMINER FEEL IS THE STANDARD FOR AN ACCEPTABLE
LEVEL OF NOISE SPILLAGE. The motion carried by a 4 -3 roll call vote;
Bonlender, Edler and Lover voting nay.
Condition #21 — No issue to remand
Condition #22 — McCLURE MOVED AND LOVER SECONDED TO
REMAND THIS ITEM FOR CLARIFICATION ON ACCEPTABLE LEVELS
OF LIGHT SPILLAGE. The motion failed by a 6 -1 vote; Bonlender, Cawley,
Edler, Johnson, Lover, and Whitman voting nay.
Condition #24 — No discussion.
Condition #28 — No discussion.
Condition #34 — No discussion.
Condition #39 — No discussion.
Condition #39 E 6) — No discussion.
Condition #40 B — Appeal was withdrawn
Conditions #39 thru 44 — Not remanded.
Condition #42 — No discussion.
Condition #43 —,No discussion.
Condition #45 No discussion.
Condition #47 — The appeal was withdrawn. CAWLEY MOVED AND
McCLURE SECONDED TO REMAND THE CONDITION FOR FURTHER
INFORMATION ON THE ASO ISSUE TO INCLUDE A DEFINITION OF
"PLACE OF ASSEMBLY." Council Member Cawley said that at the original
hearing he didn't feel there was enough evidence to grasp this condition so
he would like more testimony. Council Member Lover said he had been
struggling with the meaning of "place of assembly." Council Member McClure
commented that this issue has been poorly handled by the airport. They had
fourteen different opportunities to come into the record, and they didn't, but
he agrees it is a critical issue that needs to be discussed. Mayor Edler and
Council Member Whitman both expressed frustration that the Airport Board
waited until now to speak up. They both said they would vote no on the
remand. Council Member Johnson also expressed disgust with the Airport
Board but felt it was not a reason to neglect what could be a serious situation.
Council Member Bonlender said he would also vote no. He doesn't agree
with the procedure on this one. The question was called for a vote on the
motion. The motion carried by a 4 -3 roll call vote; Bonlender, Edler, and
Whitman voting nay.
Condition #49 — LOVER MOVED AND CAWLEY SECONDED TO REMAND
CONDITION #49 FOR SATELLITE DISHES AND THAT IT IS PROBABLY A
DETERMINATION OF CLASS 2 USE WHICH WOULD REQUIRE THAT
THE AIRPORT MANAGER SIGN OFF ON IT. He explained that there is a
potential for an incompatible land use because the application may require a
Class 2 ASO application under subsection 15.30.60 and also because of a
"place of assembly." After further clarification by Council Member Lover, the
question was called for a vote on the motion. The motion failed by a 4 -3
vote; Bonlender, Edler, McClure and Whitman voting nay.
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BONLENDER MOVED AND CAWLEY SECONDED TO ADD A CONDITION
TO HAVE THE HEARING EXAMINER STUDY THE SOCIO- ECONOMIC
RAMIFICATIONS OF PUTTING THE SUPER CENTER AT THAT
LOCATION. Mr. Danysh advised that if Council chose to proceed with this
motion, they could instruct the Hearing Examiner to obtain facts, expert
testimony, evidence, as broadly or as narrowly as they liked, including the
reference to the New York Times analysis, and come up with his opinion in
the form of a revised decision. Council Member Bonlender confirmed that
was his wish. Council Member Lover interjected that the political decisions
were made a long time ago during the zoning process. This is a closed
record public hearing to consider two appeals of the Hearing Examiner's
decision to approve, with conditions, the proposed Wal -Mart facility. He said
he thinks the Hearing Examiner was correct when he said it is the Council's
decision not his. Council Member McClure asked if the motion was a
question on whether a Wal -Mart in a community is good for a community.
"Are we going to be asked as legislators what businesses are good to come
in ?" He doesn't think Council has the responsibility to decide what
businesses can come in. If the land use is there, we would be breaking our
own laws if we were to decide who could and couldn't come in. He said he
doesn't think Council has that level of authority. Mr. Danysh clarified that the
question of whether you have authority to reach this issue is not necessarily
one you need to reach at this time. You already have in the record, Exhibit
189, an Economic Competition Analysis that supplements the environmental
analysis on whether the possibility of blight would cause an environmental
impact. However, supplementing that record as to whether there are
separate socio- economic issues can only further inform your ultimate
decision. We will provide an opinion as to how you might be constrained and
how far you can go. Having that information in front of you can cause you no
harm, so instructing the Hearing Examiner to take further information and
testimony - by no means jeopardizes the decision you will ultimately have to
make. The question was called for a vote on the motion. The motion
failed by a 4 -3 roll call vote; Edler, Lover, McClure and Whitman voting nay.
BONLENDER MOVED AND CAWLEY SECONDED TO HAVE THE
HEARING EXAMINER LOOK INTO THE NEW YORK TIMES ARTICLE
ABOUT WAL -MART CORPORATION'S WILLINGNESS TO PROVIDE
FINANCIAL GRANTS TO COMPETITORS TO HELP TRAIN THEM ON
HOW TO COMPETE WITH WAL -MART. The motion failed by a 6 -1 roll call
vote; Cawley, Edler, Johnson, Lover, McClure and Whitman voting nay.
LOVER MOVED AND JOHNSON SECONDED TO HAVE THE HEARING
EXAMINER CONSIDER EVIDENCE THAT MAY CONSTITUTE A
POTENTIALLY INCOMPATIBLE LAND USE AND THE POSSIBILITY
THAT THE ASO MAY REQUIRE A CLASS 2 USE. The motion failed by a
4 -3 roll call vote; Bonlender, Edler, McClure and Whitman voting nay.
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Mayor Edler advised that all the conditions have been gone through and it is
time to vote on the original motion to remand Conditions #18 and #47 made
by Council Member Cawley and seconded by Council Member McClure. The
vote will be to affirm the remand. Mr. Danysh clarified that beyond remanding
those two items, there is no decision on the ultimate question. It will come
back to the Council for review again with the requested information. Mayor
Edler said he felt the Council was just putting off a decision and he didn't
think that is what the citizens have asked them to do. He will vote no on that
basis. Council Member McClure also spoke about the frustration levels and
his belief that this issue isn't going to be decided here but will go to court. But
he feels that remanding the issues is still the proper procedure. The motion
carried by a 5 -2 vote; Bonlender and Edler voting nay.
6. Adjournment
McCLURE MOVED AND CAWLEY SECONDED TO ADJOURN. The
motion carried by unanimous voice vote. The meeting adjourned at 8:48 p.m.
READ AND CERTIFIED ACCURATE BY
COUNCIL MEMBER DATE
COUNCIL MEMBE DATE
ATTEST:
A e d.A■■
l ' ffMO
CITY CI . 1 �' DAV I EDLER, MAYOR
Minutes prepared by Linda Watkins: A video tape of this meeting is available in the City Clerk's Office
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