Grass-roots group also wants state board to look at Hearings Officer Joe Turner's rejection

Determined to build a Gresham supercenter, Wal-Mart will not take 'no' for an answer.

On Wednesday, the retail giant filed an appeal to the Oregon Land Use Board of Appeals (LUBA), asking the board to overturn Gresham's denial of its development application.

Gresham Hearings Officer Joe Turner ruled in early November that Wal-Mart's proposal would negatively impact the nearby intersection at Powell Boulevard, 182nd Avenue and Southwest Highland Drive -an intersection that Gresham city planners call one of the city's 10 deadliest.

'We do not agree with the hearings examiner's decision on traffic,' said Jennifer Holder, Wal-Mart spokeswoman. 'We feel that, if traffic is viewed under normal conditions, our traffic study and plans are a good fit for the area.'

Turner's decision should have been a victory of sorts for the smart-growth campaign group known as Gresham First, which has been fighting against a Gresham Wal-Mart for nearly two years. Instead, the community group has also appealed the hearings officer's decision to LUBA.

'We are pleased with the latest outcome, but are concerned that the written decision is based on only one element of the project,' said Michael Price, spokesman for Gresham First. 'The final decision should reflect the total picture of community level impacts such as traffic, safety and livability.'

More importantly, Price said, a denial of Wal-Mart would set precedent for the city of Gresham.

'The city of Gresham has an opportunity to set the tone for what developers can get away with and how we will protect our neighborhoods from poorly planned projects,' Price said.

Gresham First contends that the city of Gresham should have used stricter guidelines when reviewing the Wal-Mart application, as the proposed site for the supercenter falls into two zones, commercial and community mixed-use.

Community mixed-use zones prohibit large retail use, but Wal-Mart has proposed putting its parking lot and driveway in that zone. Gresham First says dividing the development that way doesn't make sense.

'The parking lot is not a stand-alone project,' Price said. 'Its only purpose would be to serve the big-box retail.'

Gresham First says all Gresham residents should be concerned by LUBA's decision, as the ruling could set precedent for other local development.

'This would allow high-impact zoning uses to creep out into surrounding neighborhoods,' Price said.

A history of appeals

The retailer has been trying to build a Gresham supercenter on the 11-acre parcel for nearly two years.

The company's original plan called for a 220,000-square-foot supercenter with underground parking for more than 900 vehicles.

Gresham planners denied that application in 2005, citing traffic concerns. Wal-Mart appealed that decision, but the city's hearings officer stuck by Gresham planners and upheld the denial.

Wal-Mart could have appealed the hearings officer's decision to LUBA in 2005. Instead, the retailer bought the land and came back with a new application for a much smaller supercenter.

This scaled-down, 122,000-square-foot building passed muster with city planners, but community activists appealed the city's approval.

Turner sided with Wal-Mart's opponents last month, and ruled that traffic was still a problem, despite the store's smaller footprint.

'… This particular location is a terrible fit,' Price said, of the 11-acre parcel Wal-Mart purchased shortly after the city denied its first application. 'This is a densely residential area unsupported by freeway access that already sees its share of congestion.'

Holder said Wal-Mart still feels that the site off Powell is the best fit for a Gresham supercenter.

'Our real estate department listened to suggestions for other sites from opponents in the area and looked at other parcels, however, the land on the other site that may have worked was simply too wet to build on,' Holder said. 'We are confident that the plan and the site we have worked on is the most appropriate for the area and will best serve our customers, who repeatedly told us they would like more convenient shopping choices in Gresham.'

This is not the first time Wal-Mart has appealed an Oregon city's denial to LUBA.

'… Our only choice on these types of decisions is to appeal to LUBA and then to court,' Holder said.

Earlier this year, the board upheld the city of Bend's decision to deny a 200,000-square-foot supercenter on the west side of the Central Oregon city.

In a move that mirrored what it did in Gresham, Wal-Mart said it planned to submit a revised application to Bend planners.

Bend's smart growth activist group, Our Community First, said 'broad citizen participation made all the difference … to stopping a Wal-Mart supercenter in Bend.'

The group's leaders added, in a press release submitted shortly after LUBA upheld the city of Bend's denial, that they were not surprised by Wal-Mart's persistence.

'Wal-Mart is used to having its own way regardless of community response,' the group stated in the press release. 'The corporation's track record in communities across the United States attests to its willingness to spend millions of dollars to site a new store.'

Price agrees.

'This particular applicant has a history of appealing all decisions against them, so we have been prepared for the next level of review,' Price said. 'The neighborhood appeal will ensure that all issues are discussed at LUBA, not just those raised by Wal-Mart; allowing the most comprehensive analysis of the project's impacts.'

The city of Gresham has 21 days from Wednesday to file documents for official review with LUBA. Wal-Mart then has an additional 21 days to file a petition for review and respondents have 21 days after that to file a response. LUBA then hears oral arguments and will file an opinion within 77 days of hearing those arguments.

Laura Bridges-Shepard, spokeswoman for the city of Gresham, said the city expects to get a final decision from LUBA on both appeals sometime in mid March.

The Gresham Outlook was unable to contact a Wal-Mart representative by the time this story was printed.

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