A judge in Santa Fe, New Mexico ruled last month that the City Council voted legally in August of 2005 to allow Wal-Mart to build a larger store in the city. But Wal-Mart is not yet in business, because local residents and area businesses have appealed the case to the state Court of Appeals, hoping to overturn the decision. According to the Santa Fe New Mexican, two days ago, The Coalition Against Big Box Stores filed their case, claiming that the District Judge had failed to consider a “secret instruction” from the city’s attorney to councilors that limited the issues considered during an all-night council hearing. The city council hearing on the case in 2005 ran for six hours, and ended in the early morning hours. The Mayor of Santa Fe, Larry Delgado, cast the deciding vote in a 4-4 tie, that tipped the scales in Wal-Mart’s favor. The proposed 149,986 s.f. superstore would shut down Santa Fe’s existing Wal-Mart discount store on Cerrillos Road. A developer from Phoenix, Arizona has proposed the larger store on the 33 acre site. The legal challenge suggests that the city attorney’s advice, which was to tell councilors only to consider land use issues, and not economic or environmental issues, was flawed. Three city councilors have signed affidavits that say the city’s lawyer told them to ignore non-land use issues in a private briefing before the hearing, but the District Court judge would not allow their affidavits to be entered into the record. The plaintiffs charge that these 3 councilors “did not discuss with other members of the council what they considered to be the more important issues of how the Entrada Contenta development plan fit in with existing city of Santa Fe economic policies encouraging small business and entrepreneurship. The city attorney’s secret limitation came to light only when the councilors told others after the hearing.”
Sprawl-Busters explained on March 29, 2006, that plaintiffs asked District Court to send the matter back to the City Council for a “full and complete deliberation of all issues inherent in adding another Wal-Mart to the community.” The plaintiffs claimed that the 5-3 vote in favor of the superstore was illegal, because one councilor who was in favor of Wal-Mart, then voted against it so that the vote could be reconsidered. During reconsideration, Mayor Larry Delgado also switched his vote to favor the project. Opponents argue that under parliamentary rules, only someone who voted in the majority could ask for reconsideration, and since the vote was a 4-4 tie, there was no majority. “The problem was that Robert’s Rules of Order didn’t allow him to change his vote to become a member of the majority,” the lawsuit states, asking the courts to invalidate the motion for reconsideration. But the District court judge dismissed that argument, and said no one questioned the propriety of the vote at the time. The lawsuit also charged that the consideration of the traffic plan was flawed, and that the annexation of the Wal-Mart parcel never had a proper development plan submitted into the record. The Coalition Against Big Box Stores is made up of 22 business owners and residents, including former state Rep. Max Coll, D-N.M., and Stewart Udall, secretary of the interior under Presidents Kennedy and Johnson and the father of U.S. Rep. Tom Udall, D-N.M.
