A gag order has been put into effect in the community of Poway, California. Candidates running for public office have been warned by the city not to tell voters how they feel about a proposed Wal-Mart expansion, at the risk of a lawsuit by Wal-Mart over due process issues. On April 6, 2008, Sprawl-Busters first reported that Wal-Mart wanted to expand its discount store in Poway. Wal-Mart purchased the former Plowboys Market, a farmers market-style retailer in September of 2007, located right behind an existing Wal-Mart, to make room for the expansion. In December, 2007 the company submitted plans to add 49,177 s.f. to the existing Wal-Mart store, which has been in Poway since 1992. This city of roughly 51,000 people claims that life in Poway is “the way California was meant to be.” But many residents of Poway think that a larger Wal-Mart is not meant to be. “Poway will not be the same ever again if we let this happen,” said a spokesman for the South Poway Residents Association. Opponents charges that a superstore would worsen the traffic congestion in the area, force other supermarkets to close, and bring low-wage jobs to the area. On July 6, 2008, Sprawl-Busters noted that Wal-Mart had actually filed its expansion plans. The trade area in Poway is already saturated with regional grocery stores near the existing Wal-Mart — Vons, Statler Brothers, and Henry’s. On September 11, 2009, Sprawl-Busters reported that Wal-Mart had shrunk the size of the store — but only by 9%. The comprehensive draft environmental impact report is being written by a private firm selected by the city, paid for by Wal-Mart, and is expected to be finished around April of 2010. On January 2, 2010, Sprawl-Busters reported that a new citizen’s group has been formed, called NO WE, which stands for No Wal-Mart Expansion. One of the group’s leaders, David Grosch, told the newspaper, “We know we have an uphill fight here because it’s not a new Wal-Mart — it’s an expansion.” NO WE says the Wal-Mart store currently is five miles from the closest major freeway. “The real question is: Does a big-box store fit in the center of Poway?” Grosch told the newspaper. “I would just say enough is enough.” Grosch is now running for City Council, and he has been told by the city’s attorney that he and all the other city councilors should refrain from expressing any opinion on the subject of Wal-Mart. “In order to safeguard the City Council’s ultimate decision in a controversial land use matter from due process challenges,” the city’s lawyer said in a memo, “it is recommended that City Councilmembers avoid meeting with interested parties prior to the public hearing, avoid committing to a decision prior to the public hearing, and provide all documents and other evidence that they receive to the City Clerk so that it can be made part of the record for the public hearing.” The lawyer went on to suggest that any candidate, like Grosch, “who take a strong public position regarding a particular land use matter are at risk for being disqualified from participating in that matter if elected to the City Council.” Grosch is running as a replacement candidate if the voters recall current Councilor Betty Rexford in the June 8th election. Grosch protested the lawyer’s ruling. “The last I heard we live in a representative Democracy — that should mean that people who run for public office express their views on various subjects and you vote the person who best represents your opinion. It makes no sense to exclude an elected representative from any vote solely because he expressed his opinion on an issue when running for office.” Another candidate, Howard Collins, has also expressed opposition to the expansion. According to the Poway News Chieftain, a third candidate, Roger Willoughby, has also stated that he opposes the Wal-Mart expansion. Once Wal-Mart’s environmental impact report is ready, there will be a public hearing in early May, and another hearing before the city council by mid July. “The Wal-Mart expansion decision is a quasi-judicial decision involving an applicant with due process rights, because it involves City Council approval of a revision to Wal-Mart’s existing Development Review,” the city’s attorney wrote. “It is best to avoid the appearance of bias and the risk of a challenge by remaining neutral regarding the matter until all of the evidence has been presented.” Deputy Mayor Carl Kruse said the advice to city councilors and is “all about due process. You’ve got to give everyone fair treatment.” The likelihood is that Wal-Mart will litigate if they lose their expansion even if David Grosch says nothing further from this day on.
A similar situation regarding a controversial Wal-Mart project came up in North Whitehall, Pennsylvania last month. At the North Whitehall Township Board of Supervisors meeting on Jan 19, 2010, newly-elected township supervisor Jerry Joseph was asked by Wal-Mart’s attorney to recuse himself from all voting matters involving Wal-Mart, including not just Board of Supervisor’s votes, but planning commission votes as well, since Joseph is the Supervisor’s representative to the planning commission. Wal-Mart also charged that Jeffery Dimmich, the town’s newly elected auditor, who has been active in the same group against Wal-Mart, has a similar conflict. In response to Wal-Mart’s charges, Supervisor Joseph released a statement which was read into the record of the January 26th North Whitehall Planning Commission. “First let me say that I didn’t take on the responsibility of township supervisor just to say no to Wal-Mart,” Joseph wrote. “If anyone thinks this is the case, then they are severely underestimating me. I’ve taken on this responsibility to help the township and its residents deal with the many concerns of the township including arsenic-tainted properties, heavy metals in drinking water, police coverage and security concerns, managing growing pains of the township, and general township operations. As township supervisor, I am tasked by the 15,000 plus residents of the township to use my good judgment and common sense in guiding the township through the maze of issues at hand and those we face in the future… .My concern isn’t the entity that is Wal-mart. My concern is that the megastore will bring traffic from all surrounding townships to a portion of RT 309 that is already heavily traveled and very congested. Our section of RT 309 is mostly residential as it has 300 properties along it, the majority of which are private residences housing over 500 people. Across the street from the Wal-Mart property is a private residence. What will their life be like with the Wal-Mart traffic and lights on all night for the 24/7 operation?… I feel I can be very objective on this issue. On all issues before me, I must look at the facts and make informed decisions based on facts, not my feelings. If an applicant passes all phases of land development with no issues, then I would have a difficult time saying NO to them. The issue of recusal is a slippery slope. If I were to voluntarily recuse myself on issues where the land development applicants think I’m opposed, other applicants will be emboldened to ask me to recuse myself on their projects. I cannot let this happen. If I were to recuse myself on issues that seem difficult or when requested by land development applicants, I would be letting down not only the residents of the township who are counting on me to make the difficult decisions, but also would be letting myself down as I take extreme pride in the work I do and the decisions I make. I am not here to take the easy way out. Recusing myself from Board of Supervisor responsibilities on this issue for me would be the easy way out. It would turn my vote basically into a NO vote as majority rule would still require 2 YES votes from the other supervisors. This would put undue pressure on my supervisor colleagues and I have too much respect for them to do this… I am disappointed that a company who claims to be a good neighbor would immediately come after a township official with no provocation based on actions in office, and only based on issues that the person has participated in as a private citizen. These actions by Wal-Mart only serve to embarrass and bully me with threats of legal action if I do not conform to the wishes of their legal counsel. It does worry me that in the future, township officials will continue to be bullied and lawsuits will follow any time Wal-Mart does not get their way. I am not an unreasonable person. Even though the appeals that were filed on my behalf were directed at my own township and the opportunistic ways approvals were applied, and not directed at Wal-Mart, I will agree to make some concessions to show good faith… Each of the items for which discussions and decisions are made, which include conditional use, subdivision, and land development, are separate items and must be considered separately. Therefore, I too, will consider these items separately. I will voluntarily recuse myself on all matters in which I have participated in appeals which although were directed at my own township, included Wal-Mart. These matters include conditional use and subdivision and do not include land development in which I plan to participate not only on the Board of Supervisors, but also on the planning commission.” After Joseph’s statement, the town’s lawyer repeated her opinion that Joseph had shown ‘bias’ against Wal-Mart, and that asking for his recusal made sense. The Planning Commission ultimately decided to proceed with the case, without forcing Joseph to recuse himself. Readers are urged to email Poway Mayor Don Higginson at [email protected] with the following message: “Mayor Higginson, The one Wal-Mart in Poway today is one more than enough. If you allow the existing store to expand, all you will get is other merchants shutting down. The retail pie will get sliced thinner. The supercenter is neither a revenue nor a jobs project — it’s economic displacement. Given the fact that debate on this issue will begin before the June election, it is important that people running for office give voters some sense of how they stand on major development issues, including big box expansion. Voters need to know how every candidate addresses these issues. The expression of these opinions can be done in a general way that does not violate due process. I suggest that you ask a second attorney familiar with municipal law to give you an independent analysis of due process, and what is appropriate for candidates to say about future projects in general. To do anything short of that would be to gag public candidates from speaking out on the issues that are critical to your constituents.”
