Controversy erupts over big box draft, Four Corners Business Journal, July 31-Aug. 6, 2006

Leanne Goebel
Journal Correspondent

PAGOSA SPRINGS —With the “big box” moratorium set to expire in mid-September, town council, planning commission and staff met for a work session July 18 to discuss the draft ordinance regulating “big box” development. The ordinance will require proposed development more than 50,000 square feet that submit an impact study with their application and go through a design review process. Anything less than 50,000 square feet will go directly to the design review process. The ordinance will cap development at 180,000 square feet.

According to Tamra Allen, town planner, 180,000 square feet is slightly smaller than the Durango Wal-Mart.

“Do we feel comfortable having a building as large as a Durango Wal-Mart in our community?” council member Tony Simmons asked. Then he continued, “I think this whole project is overkill. This (180,000 square feet) is bigger than anything the town currently has. The impact of this is dramatic. There is nothing of this scale in our town.”

Currently, the largest structure is the Pagosa Lakes City Market, which was just expanded last year to a size of 54,000 square feet. The new Ace Hardware store recently expanded into a 36,000 square foot structure. The entire Country Center development (where City Market is located) is 120,000 square feet.

The language in the ordinance did not clarify differences for retail and other business uses, nor did it address zoning or land-use areas. In other words, the 180,000 square foot cap applies equally to downtown as it does to other urban areas. Also unclear is whether 180,000 square feet is the max for single and multiple retail shopping centers or if a multiple retail center could be made up of two adjacent 180,000 square foot buildings.

The draft is the result of a second round of meetings with big box task force committee members, council, and local business owners and reflects “a compromise of setting some cap, but being fairly lenient,” Allen said.

Mayor Ross Aragon said that the committee “worked on it a long time to get to this compromise.”

According to Allen, the current land use code states that if a structure is more than 4,000 square feet, the builder or developer is required to get a conditional use permit. The Master Plan will prescribe height and mass, and design guidelines, but does not address square footage.

Council member Darrel Cotton took issue with language in the document that suggested the impact study requirement address the likelihood of a big box store displacing existing business. “That shouldn’t be there,” Cotton said. “It is not our job to regulate the free marketplace.”

“We need information to accurately assess the positive and negatives,” Simmons countered.

“I’m not sure we can get a fair assessment,” Cotton said.

“You don’t know what’s coming and you can’t say that,” Simmons argued.

“A super mall isn’t coming until enough people will support it,” Cotton said.

“All we are asking for is to know what the entire impacts will be to all of our community. We need a set of criteria to evaluate those impacts. It is not the deciding factor, it is just information to help us make an informed decision,” Simmons said.

Allen agreed saying, “We need to know if we are going to displace current business and then we need to have the appropriate means to mitigate those losses.”

“I won’t support it if it’s in there,” Cotton stated.

A long discussion about the public process ensued and whether the current process was sufficient. Council member John Middendorf wanted more than 30 days to be allowed for public comment once an application for a big box development came into the planning office. But again, Cotton disagreed.

“An impact is an impact. If they say tax dollars are generated then it is just simple math. I think it is a mistake to open a can of worms before we get started. It will take years. We have to deal with the facts,” Cotton said.

The group did agree to widen the mailed notice area from within 300 feet to 500 feet of the proposed development.

Allen said she anticipated that a developer would have a retailer lined up in order to complete the impact study and that if a sketch plan comes in without a retailer and impact study, that it would not move forward until an impact study could be completed.

However, an audience member who stated he was a consultant working for developers who build retail centers with big box stores stood up and asked for clarification. He stated that most of the developers could provide an impact study and that it didn’t matter if it was K-Mart or Wal-Mart or Target, the numbers would most likely be the same. He said that often the developer did not want to announce the large-format retailer up front because often they are in negotiation to get the best deals from the retailer. Allen said that as long as the application came in with an impact study, it could move forward.

The biggest argument came from the recommendation that the town require the retailer to pay a livable wage and that town had the opportunity to audit said retailer to see that they were actually meeting the employment requirements. Again, Cotton said he would not vote for the ordinance if this language remained in the document.

“Everyone should have to play by the same game,” Cotton said. “We don’t dictate wages and benefits to any business. It is not our job. We aren’t here to dictate.”

“But the impacts of these businesses are going to be dramatic,” Simmons countered.

“Then do a minimum wage ordinance because I don’t think we can legally do this. Government doesn’t belong in a businesses books.”

“But we have absolutely no way to gauge how these big companies do business,” Council member John Middendorf said.

“How can we dictate? The state of Colorado determines what the minimum wage is. We can’t tell them what they must pay,” a planning commission member said.

The wage requirement was scratched from the document. But Tony Simmons asked that the impacts on the health district be added to the required impacts to be studied.

The committee did agree to define more clearly what “vacant” meant and to see if they could add the requirement for a bond posting in the amount of generated sales tax in the event that the retailer vacates the building.

The draft document also recommended that the building not be transferable to a different business or owner without that new business or owner going through an impact study. Darrel Cotton again disagreed. “Nontransferable is too harsh,” he said. “It should say we may require a new impact study.”

“Subject to the approval of council,” John Middendorf suggested.

The first reading of the ordinance is scheduled for 5 p.m. Aug. 1. Public comment will be taken at that time and a second reading and adoption is scheduled for Sept. 5. The existing “big box” moratorium expires Sept. 15.

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