What part of “No” don’t they understand? Sprawl-Busters has been following events in Central Point, Oregon, where the city voted to reject a 207,000 s.f. Wal-Mart. The corporation then appealed to the state’s Land Use Board, and the LUBA recently upheld the city’s position that Wal-Mart has to get a conditional use permit (CUP) from the city. About one day after the LUBA decision, Wal-Mart bought the 21 acre parcel it was pursuing for $6.131 million. A lawyer who represents Wal-Mart told the Mail Tribune newspaper, “I have to believe the fact that Wal-Mart is willing to purchase the property at this stage of the game tells the community that they’re willing to do whatever is necessary to be able to have a store there.” Wal-Mart’s lawyer put a Mr. Smiley spin on the LUBA decision, noting, “All that decision said was that we have to go back through a process that will require us to address those standards which will hopefully put the City Council in a position to approve the store.” But Central Point Mayor Hank Williams was described as “flabbergasted” by the news of Wal-Mart’s land deal. “So they went ahead and bought it?” the Mayor told the Tribune. “I don’t know what’s going on at all … as I understand it, LUBA said that they should’ve gotten a conditional use permit. If they have to have a conditional use permit which would be granted by the City Council, considering the attitude of the council when they disapproved it, that would be difficult to do.” Critics of the plan noted that ownership of the land is totally irrelevant to the approval process. The land could be bought by Helen Walton but it wouldn’t change the city’s problems with the granting of a conditional use permit.
Local officials may have been surprised by Wal-Mart’s move to buy the property in the face of rejection. But in fact, Wal-Mart has done this many times. The reasons for Wal-Mart’s action may vary by site, but they are not hard to understand: if they have an option on some land and it runs out, another company could purchase it, and Wal-Mart would have nothing to show for the payments it made to hold the land. In addition, land is not a bad investment for Wal-Mart Realty to make. The property is likely to appreciate in value, and not only does Wal-Mart defensively keep other competitors out, but they can reactivate their proposal when and if the political makeup of the local city or town changes. Wal-Mart will use the land purchase, and the threat of litigation to try to get by intimidation what it could not get by regulation. The fact remains, a conditional use permit, by definition, is not automatic, and if city officials carefully develop their findings of fact that show the huge project does not satisfy the criteria for a CUP, the courts will not substitute their judgment for local officials, and the developer will have to show that their action was arbitrary and capricious — not an easy thing to do. Projects can be rejected because of inordinate scale, impact on surrounding land values, etc. A CUP means the developer cannot use this land “as of right.”