MCRD takes Walmart to the OR Supreme Court

Rogue Indy Volunteer Reporters, 19.05.2010 15:50

Today legal history was made at North Medford High School, the venue where the Oregon Supreme Court heard the appeal of Medford Citizens for Responsible Development (MCRD), following their grant of the writ of certiorari. On the average, our high court decides to hear about five percent of the cases it is asked to hear on appeal, so it is a victory for MCRG just to be granted an Oregon Supreme Court hearing.

Today at issue was whether the City of Medford complied 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 Walmart superstore development application. The justices tossed the topic around and turned the topic inside while hammering all three attorneys.

The MCRD attorney, Ken Helm led off, cool and calm, arguing how the "text and context" standard ought to followed. Attorney Helm exposed the problem with the any "plausible" reading standard which was previously applied to decide the case, as he read from a standard dictionary, where a definition for "plausible" includes "superficial" and then argued that justices ought not use a standard which is based on a "superficial" determination.

Oregon case law may provide some guidance regarding the "plausibility" standard. For the record, "Black's Law Dictionary", does not contain any entry for "plausible" or any form of the word.


BACKGROUND AND HISTORY OF WALMART ISSUE IN MEDFORD

THE EVOLUTION OF OREGON’S STATEWIDE PLANNING GOALS
Oregon’s statewide land use planning program — originated in 1973 under Senate Bill 100 — provides protection of farm and forest lands, conservation of natural resources, orderly and efficient development, coordination among local governments, and citizen involvement. The program affords all Oregonians predictability and sustainability to the development process by allocating land for industrial, commercial and housing development, as well as transportation and agriculture. The Department of Land Conservation and Development (DLCD) administers the program. Under the program, all cities and counties have adopted comprehensive plans that meet mandatory state standards. The standards are 19 Statewide Planning Goals that deal with land use, development, housing, transportation, and conservation of natural resources. Periodic review of plans and technical assistance in the form of grants to local jurisdictions are key elements of the program.
Oregon’s statewide planning goals grew out of Senate Bill 10 in 1969. That bill established a basic program for statewide planning. It required local governments to draw up comprehensive plans, and it set forth 10 goals to guide cities and counties in their planning.
In 1973, the legislature replaced that basic program with a much more extensive one. With Senate Bill 100, the 1973 Legislature created the Land Conservation and Development Commission (LCDC) and directed it to establish new statewide planning goals and guidelines by January 1, 1975.

Land Use Board of Appeals (LUBA)
The Land Use Board of Appeals (LUBA) was created by legislation in 1979 (ORS Chapter 197) and has exclusive jurisdiction to review all governmental land use decisions, whether legislative or quasi-judicial in nature.
Prior to LUBA's creation, land use appeals were heard by the Land Conservation and Development Commission (LCDC) and the circuit courts. LUBA was created to simplify the appeal process, speed resolution of land use disputes and provide consistent interpretation of state and local land use laws. The tribunal is the first of its kind in the United States.
The governor appoints the three-member board to serve four-year terms. The appointments are confirmed by the Oregon Senate. The board members must be members of the Oregon State Bar.

Mission : LUBA was created to:
simplify the appeal process;
speed resolution of land use disputes;
provide consistent interpretation of state and local land use laws.

WALMART
WAL-MART STORES, INC. (BRANDED AS WALMART) (NYSE: WMT) IS AN AMERICAN PUBLIC CORPORATION THAT RUNS A CHAIN OF LARGE, DISCOUNT DEPARTMENT STORES. IN 2008 IT WAS THE WORLD'S LARGEST PUBLIC CORPORATION BY REVENUE, ACCORDING TO THE FORTUNE GLOBAL 500 FOR THAT YEAR. THE COMPANY WAS FOUNDED BY SAM WALTON IN 1962, INCORPORATED ON OCTOBER 31, 1969, AND PUBLICLY TRADED ON THE NEW YORK STOCK EXCHANGE IN 1972. WAL-MART IS THE LARGEST MAJORITY PRIVATE EMPLOYER AND THE LARGEST GROCERY RETAILER IN THE UNITED STATES.

Big-box stores eliminate more retail jobs than they create  http://ftp.iza.org/dp2545.pdf

A recent study examined 3,094 counties across the U.S., tracking the arrival of new Wal-Mart stores between 1977 and 2002. The study, conducted by University of California economist David Neumark, found that opening a WalMart store led to a net loss of 150 retail jobs on average, suggesting that a new Wal-Mart job replaces approximately 1.4 workers as other stores downsize or close. (The Effects of Wal-Mart on Local Labor Markets, January 2007).

The reason for the overall decline is that a new Wal-Mart store does not increase the amount of money that residents have to spend. Sales gains at these stores are invariably mirrored by a drop in revenue at existing businesses, which then must downsize or close. The job losses are larger than the gains because Wal-Mart accomplishes the same volume of sales with fewer employees. A new Walmart superstore may well result in fewer jobs in Medford.


Case History
Walmart originally submitted plans in 2003 for a 207,000 square-foot “Super-Center” on Highway 99 in south Medford. Despite opposition from residents, the project was granted approval by the Medford City Council in June 2006. Two groups filed an appeal of that decision, based on design and compatibility issues, and to require a traffic study as required by City Code.
The council voted to waive the traffic study requirement because the rule has historically been ignored. Local residents fought back, arguing that many wrongs don’t make a right. Medford Citizens for Responsible Development contend that this faulty logic allows developers to build without paying for their impacts to the transportation system. The group appealed the city’s decision and is hoping that the courts will require the city follow the rules and not give special breaks to the out-of-state retailer.
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 Walmart’s own estimates are 8,755 car trips per day to the new store.

As big-box stores multiplied in the 1990s, the road miles logged by the average household for shopping increased by more than 40 percent—a total of 95 billion additional miles a year for the country as a whole. (US Dept. of transportation, National Household Travel Survey)
Big-box stores generate large volumes of traffic— much more than most other land uses. The amount of traffic is directly related to the size of these stores. The larger the store, the larger the geographic area from which it pulls customers and thus the higher the traffic counts. A 200,000-square-foot superstore typically generates more than 10,000 car trips on weekdays and more on Saturdays.
The kinds of businesses that often spring up near big-box retailers—fast-food outlets, gas stations, and convenience stores—also produce large volumes of traffic.
Traffic and noise depress property values in nearby neighborhoods. More traffic increases the cost of local government services, such as road maintenance and police.
By limiting the size of stores, prohibiting sprawling development on the outskirts of town, and supporting neighborhood and downtown retail, communities can shorten the distance from home to store, reduce vehicle traffic, and facilitate more walking, bicycling, and public transit use.
Photos of the pre-hearing rally at the planned superstore site on May 18 are posted here:  http://rogueimc.org/en/2010/05/16156.shtml

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More Education on this matter 19.05.2010 - 19:56 Newsletter in PDF format - 401K Here is a PDF newsletter which is packed full of information relative to Land Use Planning in Oregon and the Walmart Case heard in Medford by the Supreme Court. The newsletter was handed out to students and the public who were at North Medford High School on to attend the court session on May 18, 2010. Medford Citizen> Homepage:: http://