David versus Goliath: Austin residents take-on Wal-Mart
by Justin Finney
October 30, 2007
reprinted by permission
In November 2007, residents in Austin, Texas who lived near a dying shopping mall called Northcross received some big news in their morning paper: Wal-Mart was coming to town—literally. This wasn't going to be your typical super-center situated off of an interstate, but a 219,000 sq. ft. Wal-Mart (the largest in Austin) near a four-way intersection flanked by neighborhoods. The biggest surprise to residents though was that the site-plan had already been approved by city-council. Concerned about the impact of a large 24 hr. Wal-Mart in their backyard, and frustrated that their input hadn't been sought, the residents formed RG4N (Responsible Growth for Northcross) and the fight was on.
Early on in the fight, RG4N discovered that Wal-Mart had fine-tuned its site application process from lessons it'd learned during previous battles against other cities—over 280 cities have stopped Wal-Mart, according to the San Luis Obispo New Times. In most cases, Wal-Mart purchases land that its stores will occupy; this time it would only lease. Usually, residents get wind of a new super-center because Wal-Mart "is purchasing property or has got to change zoning," said Lisa Waddell, vice-president of RG4N. "We think that they were really sneaky here. They really kept it under wraps."
As a mere tenant, Wal-Mart escaped the direct line of fire, leaving RG4N to deal with the city and the Dallas based developer Lincoln Properties. Residents' frustration over Wal-Mart's hushed move-in was compounded by the city's atypical approval process of Wal-Mart's site plan. By granting the developer an "administrative" site permit instead of a "conditional use" permit—which RG4N says is required by city law because of Wal-Mart's outdoor garden center—the city-council wasn't required to hold a public hearing. Undeterred, residents showed up in large numbers to voice their concerns in front of city council. In response, the city-council claimed "because it's not an official public hearing, its hands were tied," said Waddell.
In a surprising development during conversations between city-council and RG4N, some council members revealed that they'd be warned by city attorneys that they'd be financially responsible for their own defense should any lawsuits ensue from interference with Wal-Mart's site plan—a claim that RG4N's attorneys say has no legal precedence. In addition to this revelation, it was also revealed in the Austin Chronicle that the city manager, Toby Futrell, had a husband who worked for Wal-Mart as a HVAC service manager. Shortly after the conflict of interest was revealed, the city manager recused herself from future dealings in the matter, but only after the site-plan was a virtual done-deal.
Determined to fight on in light of these depressing revelations, RG4N took up a number of tactics: from drawing up a vertical mixed-use site plan with civil engineers as an alternative to a Wal-Mart, weekly protests at the mall's street intersection (one protest brought out over 3500 people who formed a human chain around the mall,) reaching out to the developer Lincoln Properties, and the eventual lawsuit filed after Lincoln's second site-plan application was submitted.
The second site-plan, offered ostensibly as a compromise from Wal-Mart, called for an extra turn-lane, the reduction of the building in size from 219,000 sq. ft. to 192,000 sq. ft. (made possible by narrowing the aisles,) and a store opened for 22 hours a day instead of 24—except on holidays.
If Wal-Mart thought its compromise offer had been generous, RG4N made it clear they thought otherwise with the filing of a lawsuit against the city and Lincoln Properties in June 2007. If successful, the lawsuit will invalidate the site-plan. In its lawsuit, RG4N alleges that the city broke four laws in granting the site permit by using the wrong approval process, failing to enforce a plat note that limits runoff (which would negatively impact a nearby creek,) failure to enforce a protective tree ordinance, and failing to enforce traffic and public-safety provisions.
RG4N's own projections on traffic impact indicated a discrepancy between what the developer presented to the city and the city's own traffic research. "The big numbers aggregate from our estimates and the city's study of the other super-centers is 25,000 cars a day. Lincoln's estimate was 15,000 cars," said Waddell. In addition to these numbers, the city had already rated the nearby intersection at near capacity. "The city rates streets on a scale from A to E, with E being the point of failure and requiring some kind of mitigation to the street because of its impact to public safety," said Waddell. "The intersection on Burnet and Anderson (intersection near development) is already at a D minus with current traffic." Such traffic, besides causing pollution and turning once quiet neighborhood streets into mini thoroughfares, also slows down emergency vehicles and endangers the many residents who run, walk, and bike in the area.
Regarding the runoff from the Wal-Mart, another allegation in the lawsuit and important concern of residents, Waddell said that the nearby creek couldn't handle the extra inflow. "Shoal creek is a watershed area and a designated flood zone." In addition to the runoff's flood hazard, there's the usual pollutants of oil and fertilizers resultant from the thousands of cars and outdoor garden-center that will negatively impact the environment. "Runoff from cement parking lots is different. If it's not absorbing into the ground than it's in streams and puddles. It's running down into rivers and overflows."
But residents' concerns over a Wal-Mart super-center moving into their neighborhood aren't confined to the allegations listed in the lawsuit. Literature on the group's website cites a litany of reasons why Wal-Mart isn't healthy for communities: a national study of over 500 Wal-Marts reported a 400-1000 higher percentage rate of police incidents compared to the nearest Target super-centers, another report on three Iowa communities showed property values are lowered when local businesses go under, and then there's the noise and light pollution that's inevitable with a super center—some of the homes in one Austin neighborhood are only 600 feet from the proposed Wal-Mart.
In a show of support for RG4N, a number of local businesses have stepped forward and donated money, in addition to donations received from sympathetic Austin residents. However, in spite of all the public resistance, Lincoln Properties has boldly moved ahead and started partial demolition on the mall, accepting the risk of losing in court, and in turn, it's own construction profits.
In one immediate victory though, RG4N has convinced the developer to halt the decimation of 26 mature trees on the site. This small victory in the uphill battle against the world's largest private employer and sales chart-topper of the Fortune 500 was a partial anodyne to the irony of Austin's recent passage of the "big-box ordinance," shortly after the city's approval of the Wal-Mart site plan. Passage of the ordinance requires stores over 100,000 sq. ft. to be processed with "conditional use" permits. The same kind of permit RG4N says should have been used and would have allowed a public hearing. In addition, a city ordinance creating incentive for "vertical-mixed-use" developments, a type of building design that offers an alternative to big-box super-centers, was also passed too late to have any effect on the outcome of the Wal-Mart in RG4N's neighborhood.
The final decision that will secure or scuttle a victory for RG4N residents lies in the hands of a judge who will hear arguments on the case on November 13. Should the residents be successful in nullifying the site-plan, Lincoln Properties will have to go back to the drawing board and be subject to all the new requirements mandated by the big-box ordinance. It's an outcome Lisa Waddell is hopeful for, pointing out that other Wal-Marts that have already begun construction were forced to be demolished after a judge's order. But she tempers her hope with the sobering reality of the situation. "City-council authorized the city to pay them 250,000 dollars to fight this case," she said. "The city hired an attorney to fight the citizens...but what else can we do but fight?"
Anyone interested in helping RG4N in its fight against Wal-Mart can visit their website and contribute donations: www.rg4n.org
Justin Finney is a writer and activist living in Austin Texas. When not mulling over the serious political and ecological conumdrums of the day, he practices French, jogs, and meditates—but not nearly often enough.