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Journal North: Home | Sports | Opinion | Obits | Entertainment
Thursday, June 18, 2009
Court Rules for Wal-Mart
By Kiera Hay
Journal Staff Writer
A Wal-Mart Supercenter may finally be moving into south Santa Fe.
The New Mexico Court of Appeals on Wednesday broke a years-long stalemate between Wal-Mart and its opponents by upholding a 2005 decision by the Santa Fe City Council to allow construction of a commercial development anchored by the retail giant to move forward.
The court shot down arguments from the coalition of local business owners and others against the Super Wal-Mart planned on Cerrillos Road south of Jaguar Drive.
The opponents maintained that the council had improperly taken only land use factors into consideration when approving the Wal-Mart, and the state District Court judge who previously upheld the council's decision had wrongly struck from the record affidavits from three city councilors who said they were led to believe their purview of the project was limited to land-use matters.
“Given the extensive record, including the citizens' testimony on both sides of a broad range of issues, and given indications that the councilors did not entirely limit their review as advised, the Council's decision was not arbitrary and capricious, and is affirmed,” wrote appellate Judge Robert Robles in an opinion filed Wednesday. Robles was joined by fellow Judges Cynthia Fry and Jonathan Sutin.
Attorney Nancy Long said it was “a very good decision for Herrera & Associates.” Long represents defendant William Herrera, the owner of the land under development.
“We're just pleased that the Appeals Court affirmed the City Council decision and found that the council was reasonable and rational in making that decision,” she said.
But plaintiff Stewart Udall, the former Interior Secretary and father of U.S. Sen. Tom Udall, D-N.M., warned that, if the decision stands, the sheer size of the Wal-Mart could drive Santa Fe's small enterprises out of business.
“This isn't a Wal-Mart kind of town, in my opinion. It's a town of small businesses, hundreds of them,” said Udall, who was among the plaintiffs challenging the council's approval of Wal-Mart's plans.
Udall said he hadn't yet seen the decision and didn't know whether there would be another appeal to the state Supreme Court. Attorneys for the coalition fighting the Wal-Mart plan did not return messages left late Wednesday.
Though construction of the new Wal-Mart has been on hold, company officials said in April they were planning on beginning some infrastructure work not related to the actual 150,000-square-foot building.
Wal-Mart representatives said when the proposal was before the City Council that the existing Santa Fe Wal-Mart, farther north at 3251 Cerrillos, would remain open.
How construction of a new store progresses “will be up to Wal-Mart or whoever else might develop” at the site, Long said.
It was nearly four years ago, in August 2005, that the Santa Fe City Council conditionally approved plans for the 33-acre Entrada Contenta development during a meeting that attracted hundreds of people both for and against the project.
The controversial decision came down at 4:30 a.m., after hours of debate, in a somewhat tangled fashion.
The eight councilors were split 4-4 on the project, and then-Mayor Larry Delgado, citing traffic flow issues, broke the tie by voting against the project.
But Councilor David Pfeffer, who had voted in favor of the plan, then changed his vote on the proposal so he could be part of the majority and ask for a reconsideration.
The reconsideration was approved, and Councilor Matthew Ortiz moved for approval of the development plan on the condition developers meet with city and state Department of Transportation staffers to come up with traffic routing alternatives.
The councilors again deadlocked 4-4, but this time Delgado broke the tie in favor of the project. The traffic plan was later approved by the council.
In October 2005, a large group of local business owners and others dubbed the Coalition Against Big Box Stores filed a challenge to the City Council's decision in state District Court. The plaintiffs argued the council had wrongly been instructed to consider only the city's land use code and not other important issues such as the economic impact of the new Wal-Mart store. They also said Pfeffer's second vote, because it had been switched after the council initially voted against the plan, should be considered invalid.
In March 2007, visiting District Judge Freddie Romero of Roswell upheld the city's decision allowing the commercial development and the Wal-Mart.
A month later, the coalition appealed to the state Court of Appeals.
Attorneys for the group argued that Romero had wrongly stricken from the record three affidavits — from Councilors Patti Bushee, Rebecca Wurzburger and David Coss, who is now mayor — in which the councilors stated they believed, at the time of the decision, their purview regarding Entrada Contenta was limited to compliance with the land use code.
The affidavits, argued the coalition, were needed to affirm that councilors had been given incorrect instructions from the city attorney prior to the meeting.
But Robles said sufficient evidence already existed to raise the argument the city attorney had advised the council to limit its scope of review, and there was no need to supplement it with the affidavits.
Robles also stated it was “speculative” to say the council hadn't considered issues outside of land use when making its decision and therefore, “We need not address whether it would have been arbitrary and capricious had the Council only considered land use issues.”
But, Robles added, “In light of the record, we are not convinced that the Council took the City attorney's advice and limited its scope of review to land development code issues. The record reveals reasonable and rational consideration of the project by those who voted for it.”
Robles wrote that comments made by members of the City Council at the time indicated they did in fact consider other factors. Evidence included statements made by some councilors in the official meeting minutes that, although they personally disliked Wal-Mart, they were voting for the project because their constituents wanted the low-priced goods and services the company provides.
The court also rejected an argument that the general public had been denied due process because of a lack of adequate notice of the scope of the hearing.
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