This is a story about how Wal-Mart conspires with small city government to impose itself on a small community and threaten the community's thriving small businesses.
It's also a story about how a small group of citizens can throw a monkey-wrench in Wal-Mart's plans and win, at least in the first round - the final outcome is yet to be determined.
Chelan, WA is a small agricultural and tourist town in North Central Washington State, about halfway between Seattle and Spokane. It has a permanent population of about 3500, but summer residents (mostly wealthy summer-home owners from the Seattle area) and tourists more than double the summer population.
Chelan sits at the lower end of Lake Chelan, a mile-wide, water-filled glacial gorge which winds its way through the Cascade Range for about 50 miles. The area around the lower third of Lake Chelan is developed - mostly homes, orchards, and lately vineyards - while the upper two-thirds is surrounded by the Wenatchee-Okanagan National Forest (including the eastern access to the Glacier Peak Wilderness) and North Cascades National Park. Lake Chelan is clean enough that until a few years ago, city water was simply pumped from the lake to homes and businesses without any intervening filtration.
Despite being a popular tourist destination, including an Indian casino nearby, Chelan has remained somewhat isolated and a little backward - for example, dial telephone service didn't reach Chelan until the late 1970s. The nearest population center - the cities of Wenatchee and East Wenatchee with a total population of around 50,000 - is about 40 miles away via two-lane blacktop.
Chelan has maintained a thriving commercial district with an excellent hardware store, book store, independent supermarket, furniture store, clothing and variety stores and restaurants and a minimum of national chains - a Safeway (unionized), a Radio Shack franchisee, and the usual national brand gas stations. No McDonald's, Burger King, Target - no Wal-Mart.
Besides tourism, Chelan is home to the world's largest agricultural co-op, Trout-Blue Chelan, which serves the apple orchards in the area. Declining fortunes in the tree-fruit industry plus development pressures have filled the otherwise pristine air with wood smoke in the fall as orchards are pulled out and burned, supplanted by residential development (mostly Seattle retirees) and some shift to vineyards and wineries.
On one nearly 200 acre former orchard site, a large grower - Naumes - presented a plan for an industrial-commercial development to the city in 2002, described in the opening of the legal brief filed by Defenders of Small Town Chelan (DoSTC):
In 2002, residents and business owners of Chelan were told to expect a nicely planned business park at the confluence of Highways 97A and 150, where buildings no larger than 50,000 square feet would occupy lots of up to five acres. A binding site plan for the Apple Blossom Center was approved without controversy.
(emphasis added)
The development agreement specified two " mitigation measures:" 1) dedication of a 12.3-acre lot for ballfields and storm water detention; and 2) a commitment to give the City a right of first refusal to buy another 7.2 acres from Naumes for parks and recreation,
and offered the promise of "high-paying" jobs. The ballfield allotment was particularly appealing since the current city baseball and soccer fields are adjacent to the city's sewage treatment plant, and you can probably figure out why they're referred to locally as "Stinky Field" (an understatement when the wind blows in the right direction).
However,
Several years later [in 2005], the City of Chelan (" City") issued permits for a 162,000-square-foot Wal-Mart store on an 18-acre lot within the Apple Blossom Center – despite numerous public assurances that development of the business park would be consistent with the non-controversial 2002 binding site plan and application. The City approved the megastore proposal without public hearings, without an opportunity to bring an administrative appeal, and without applying its own regulations and procedures. In essence, the City has joined Wal-Mart in telling its citizens " you’ ve been tricked."
Defenders of Small Town Chelan ask this court to reverse the City’ s unlawful
permit decisions.
In effect the City took the original development plan which had been through the entire public notice, hearing and approval process, and decided that more than tripling of lot sizes and allowable building square footage were "minor changes". Despite vocal local opposition, the city proceeded to issue the necessary grading and building permits for construction of a Wal-Mart Superstore - without public input, against the wishes of many in the community, and threatening the existence of local merchants and groceries.
Quoting the brief again:
Wal-Mart, however, apparently saw things differently. On Oct. 21, 2005, Jack McCullough, counsel for Wal-Mart, sent an e-mail to city planner Dan Valoff suggesting how to structure the permitting process to minimize or eliminate public notice and appeals by citizens. One week later, the city Planning and Community Development Director took the first step suggested by McCullough, and approved a 4-lot " specific binding site plan" for Wal-Mart, including an 18-acre lot for the store.
The brief also notes that somehow the City forgot to include the Wal-Mart email in the record, an oversight corrected by the plaintiffs.
Permits in hand, Wal-Mart proceeded to grade the site and build the store, and is presently filling the store with inventory, anticipating a January 22, 2007 opening. Meanwhile, the lawsuit proceeded through the courts, and Judge Lesley Allan issued his memorandum of judgement late yesterday:
Here, the court is left with the definite and firm conviction that the city erred in granting the two permits at issue. As previously noted, the city adopted a 50,000 square foot limit on commercial buildings when it approved the PDD and development plan [original Naumes proposal]. That limit was not changed by any subsequent action of the city. In particular, CMC 17,52:290 allows minor modifications and amendments in the final development plan. However, a minor modification cannot increase the square footage of nonresidential structures. CMC 17.52:290(B)(3). Because the permits have the effect of more than tripling the allowable square footage of a commercial building, the permits cannot be considered as a permissable minor modification. Rather, pursuant to the city's own code,such a modification would require application and approval pursuant to the procedures set forth in CMC 17.52.080-160 (including public hearings before both the planning commission and the city council).
...
Because the city's decisions were clearly erroneous pursuant to RCW 36.70C.130 petitioner is entitled to its requested relief: an order reversing the city's granting of the building permit and the excavating and grading permit. ... Mr. Mann [plaintiff's counsel] should prepare and present an appropriate order.
Where this leaves Wal-Mart I'm not sure. I'm sure they'll be moving to expedite appeals, since they're sitting with a completed store nearly filled with fixtures and inventory, and I presume that operating the store requires some sort of occupancy permit which is predicated on having a building constructed legally with appropriate building permits. It may end up being a Pyrrhic victory for Wal-Mart opponents, but at the very least it feels good to see someone stick their thumb in Wal-Mart's eye. Comments by attorneys on what the future outcome might be would be appreciated.
(Personal note: I'm not sure if I'm affiliated with Defenders of Small Town Chelan - I was involved in the early opposition and donated money for attorney's fees, but haven't been involved in the formal organization or litigation. I don't reside within the city limits.)