No Sale, Walmart Says

If the opponents of the proposed North Whitehall Walmart thought they would have their concerns addressed by Walmart’s response to a score or more of conditions proposed by the North Whitehall Township Board of Supervisors, they were quickly disappointed by Walmart’s reaction on April 26.

Walmart responded for the first time to the many conditions suggested by the supervisors at their April 6 meeting.

“We went through them item-by-item, word-by-word,” Atty. Erick Schock told the supervisors, “and we have a response.”

For the most part that response was “Walmart does not agree to this condition.”

Schock set forth the legal basis for his response.  “Conditions must be supported by the underlying ordinance and evidence of record,” he said.

“If not, the remedy is for the court to strike the condition,” Schock continued, perhaps foreshadowing a legal battle, although adding “I’m not saying that is what is going to happen.”

“If it is not some standard supported by the SALDO, the board cannot impose the condition,” the lawyer asserted.  He said they could not use a standard of “a personal vision of what is good for the community.”

“A condition cannot attempt to amend an ordinance,” Schock warned the supervisors, with specific reference to lot lighting and building expansion.

In addition, he said “Conditions may not be unduly vague, arbitrary or discriminatory.”  The game-changing retailer returned time after time with the mantra that it wanted to be treated like all other developers.

Solicitor Lisa Young agreed with Schock’s position.  “Do you fundamentally disagree with anything Atty. Schock presented?” Supervisor Ron Stahley asked at the end of the presentation.

“On a legal basis, no,” Young replied.

Stahley would later confide that the requests made of Walmart were made more on a “good neighbor” basis.

Resident Lou Peters made it clear she didn’t want Walmart as her neighbor.

“I think this is a big mistake and it is going to bring us nothing but trouble,” Peters stated.

Referring to Walmart’s refusal to accept the “good neighbor” conditions, Peters said “They didn’t agree to it.  They don’t want to do it.  So don’t bring them here.”

With respect to specific conditions, Walmart reiterated that they have no intent to install wastewater holding tanks for sewage but they could not speak for the Lehigh County Authority once the wastewater leaves the Walmart site.

Supervisors had asked Walmart to agree that it would not expand the more-than-180,000 square foot building.  Walmart refused.

“We should be treated like any other developer,” Schock said.  “It arbitrarily excludes expansion.”

While the store will be a prototype supercenter, developers could always have larger plans in the future.  They would, however, likely require township approval.

The retailer also rejected the request that they not operate 24 hours a day.  That request had been added at the urging of resident Charles Knauss.

In saying “no,” Atty. Schock added “This condition was not even requested by the board.”

Resident Kathy Bryan asked why the township was powerless to impose restrictions on hours.  She said she understood from Atty. Young that hours of operation would be discussed at the land development stage.

“I don’t recall ever saying that hours of operation could be included in land development,” Young responded.

The solicitor had opined last year that the retailer would likely prevail if it challenged any such restrictions on 24-hour operation.

They would also reject other quiet time requests.

Walmart refused to agree to prohibit deliveries during the overnight “quiet hours” and said simply it will comply with the SALDO and the state law dealing with the idling of large trucks.

Schock said that Walmart employs auxiliary power units on their trucks to allow them to keep power without idling.

Walmart also would not agree to run trash compactors between the hours of 7 a.m. and 10 p.m.

Schock said “The project’s design is intended to reduce the impact of noise caused by the compactors.”

He said they were inaudible at a distance of 50 feet.

The township asked that external lighting be reduced to 50% from midnight to 6 a.m.  Citing “liability” concerns, Walmart refused and said it would comply with all ordinances.

They also refused to limit external building construction to the hours of 7 a.m to 7 p.m. Monday through Friday and 7 a.m. to 4 p.m. on Saturday with no construction on Sundays or holidays.  Walmart countered with limiting construction to 6 a.m. to 9 p.m. seven days a week.

“They sometimes work on weekends to get jobs done on time,” Schock explained.

Walmart did agree to work with the township to prohibit long-term parking in their lots.  Ron Stahley said that the request to prohibit overnight parking was meant to avoid “Walmart as a campground.”

The township sought $3 million for the Traffic Improvement Fund, a right turn land on Sand Spring Road and other traffic improvements.

Walmart offered $1.5 million “as an accommodation.”  In addition, they agreed to expand a traffic after-study and to contribute to synchronization of traffic lights.

Supervisor Stahley disagreed with Walmart’s suggestion that it should be credited with any contributions made by a predecessor owner to the recent widening of Route 309.

Schock countered that the NW1 project contemplated over 200,000 square feet of retail space at the site.

The Sand Spring improvements are on PennDOT’s list of projects and going into final design phase, according to Stahley.

Still, resident Joan Casari worried that budget woes would keep PennDOT from the project.

“PennDOT usually does not fail to do projects that are in final design,” Stahley said.

Supervisor Jerry Joseph explained “The real fact is that we can’t prevent Walmart from building” due to impacts on non-adjacent intersections.  “They can offer to contribute to that.”

The world’s largest retailer also rejected a request that they not seek any variances for signage.

“We can’t say we would not seek a variance,” Schock said.  The retailer will submit a sign package for township approval.

They did agree to a condition that states that the township will not maintain the roads, sidewalks or infrastructure within the property.

They also agreed in principle that “litter and debris shall be cleaned up daily.”

Walmart has a motto that “Cleanliness is key,” Schock stated but they feared being cited for “a Snickers wrapper on the ground.”

They did agree that they would not store goods in trailers on the property without first seeking permission.

They also declined to make requested special contributions for fire protection, police protection and open space and recreation programs.  In each case, they said they wanted to be treated as everyone else is treated.

Walmart will make a one-time $211,894 contribution for the Community Impact Fund, as required by the SALDO, Schock explained, but they rejected a request for $50,000 a year to that fund.

With respect to fire protection, Schock labeled the store “one of the safest buildings around.”

He also cited the record where the Pennsylvania State Police said it could provide adequate protection.

Resident Nancy Braymer countered with PSP testimony that the number of incidents seen at the Trexlertown Walmart “would be a significant impact on the township,” if replicated in North Whitehall.

They also refused to establish a conflict resolution board made up of citizens and store officials.  Schock said “Walmart has an established corporate procedure for conflict assessment and resolution of all complaints,” which would be followed.

Schock said this wasn’t “the first place they built where there was community opposition.”

Citing fairness, Walmart also refused to post a bond for site demolition if they abandon the store.  “Walmart has a division where responsibility is the reuse of any site that is no longer in use,” Schock explained.

He added “I don’t know that the community college has to post a bond” in respect to its construction.

Supervisor Jerry Joseph explained “It could be an urban legend that Walmart leaves and leaves a shell behind” to keep other retailers out.

Although his response was negative to most requests, Schock said “I hope at the very least this reflects the fact that we did engage in a lot of review, analysis, discussion, etc.”

Jerry Joseph suggested that the township go back and edit the conditions.  “That would be the best approach,” Lisa Young opined.

The revised conditions will be given to Walmart at the May 4 Board of Supervisors’ meeting with a decision being sought on the land development plan’s preliminary approval on May 18.

By  Ken Petrini  (with permission)

a version of this article appeared in The Parkland Press