Where'd the Walmart come from, again?

"Something is rotten in the state of Denmark" (Marcellus in Hamlet by William Shakespeare). So how are things in the state of Douglas? A postmortem on Walmart might shed some light.

1. It began with a lawsuit alleging county mismanagement of various requirements related to Virginia Ranch. A judge agreed with the owners and a settlement ensued.

Apparently the county never considered whether it could enact through a settlement agreement changes to a specific plan and zoning regulations that require public notice and public hearings. It cannot, as is made clear in a 2007 decision by the U.S. Court of Appeals for the Ninth Circuit: League of Residential Neighborhood Advocates v. City of L.A.

But the county did it anyway, granting the owners 70 plus acres of commercial zoning and many other changes, in compensation for what appear to have been relatively minor and easily corrected county mistakes, illegally cutting the public out of the process along the way.

Walmart appears to have relied on at least one aspect of the improper settlement, a waiver of our 30 percent commercial open space requirement.

2. Then came the rezoning of the Walmart site to general commercial/planned development. That involved a change from the "village" commercial called for in the Virginia Ranch Specific Plan to the opposite, "big box" retail. Staff was well aware of that change but did not disclose it in the rezoning staff report.

Instead, it simply said the rezoning complied with the specific plan - commercial zoning applied to land designated commercial in the plan - without bothering to disclose that it would lead to the opposite type of commercial. The rezoning was approved by the county commission with almost no discussion.

3. As part of the rezoning the county applied a planned development overlay zone to the Walmart property. But guess what? That zone contained exactly zero regulations. That's right, a zone with no regulations.

Standard planning practice uses planned development zoning to enact detailed regulations governing development of a site to assure that the community gets what its plans call for. The logical thing to have done would have been to transfer the village commercial standards from the Virginia Ranch Specific Plan into the regulations. Instead, the staff recommended and the county commission approved ... no regulations at all.

The net effect is that the Walmart site is zoned just general commercial, like every other bread-and-butter commercial site in the county, with nothing special to reflect the provisions of the specific plan, and nothing to prevent the big box retail that staff knew was coming. The phrase "greasing the skids" comes to mind.

4. Nonetheless, there remained a good argument that the specific plan applied and it was hard to see how a Walmart Supercenter could comply. Public resistance persisted. Something had to be done.

So what did the owners do? They had their local development consultants engage in one of the paper charades they are so good at, submitting revised plans that made a project that was already too big even bigger, adding over 100,000 square feet in three additional shopping areas around Walmart, essentially surrounding Walmart's huge box with a bunch of smaller ones, their idea of a village I guess.

That was apparently the cover staff was looking for, despite its being more like what we have at Topsy than what our plans require at Virginia Ranch. Approved!

But of course none of those "village" embellishments are actually required by staff's approval. So in the end this may prove to be just another bait and switch, something all too common here.

5. And the county managed to do all this without holding a single public hearing on the change to big box retail at Virginia Ranch, despite clear authority to do so. Yes, there were hearings in May on the rezoning, but remember? The change to big box was hidden then.

6. You might be wondering why things have gone like this. Is it just an accident or something more sinister? Well, during the Walmart review the following paragraph appeared on a "Stop Walmart" Web site:

"What the commissioners have been legally counseled to worry about are their private finances. According to [County Manager] Mr. Brown (in conversation, Democrat Central Committee Meeting, 22 Oct) should Walmart in any way 'feel they are denied permission to build would allow Walmart to bring a lawsuit against each one of the county commissioners, each of whom would be personally liable for damages.'"

I've actually heard this sort of advice myself, said by the DA's staff.

And what they said is wrong. Public officials in the U.S. acting in the good faith execution of their official duties have broad immunity from personal liability for their actions.

Consider what is being said here. An official with responsibility under the law to determine objectively whether an application complies with our requirements is being told that he can (will?) be held personally liable for damages if the permit applicant sues.

In those circumstances people tend to make the decision that best protects them from liability, as opposed to the one that best protects the community. Which would make a mockery of our permit process. And our democracy. Which is why officials have broad immunity.

I believe this created an atmosphere of intimidation resulting in what I would call "official bias" in favor of Walmart. And when that is directed at the highest authority in county government it infects the entire organization and everything it does.

The upshot is that we planned for a village and got a Walmart Supercenter. In between we got a likely illegal settlement agreement, a botched rezoning that applied no meaningful controls to this property, a final design review charade, and advice to county officials that created an atmosphere of official bias in favor of Walmart.

At each juncture the county seems to have chosen deception and manipulation over honesty and openness. Perhaps county officials could resolve to do better in the new year.

Terry Burnes is a retired Bay Area planner and a Gardnerville resident.