This

illustration shows how North Kelsey is shaping up to look like. The shopping district was once envisioned to become a unique, high-quality pedestrian-friendly development with community and open spaces.
Some residents argue a Walmart supercenter will make it harder for the city to realize the vision that was adopted by the City Council for North Kelsey.

Judge rules in favor of city, Walmart
EVERETT - Walmart can build a 155,000-square-foot supercenter at the planned North Kelsey shopping area, a judge ruled last week.
The city of Monroe didn’t err in approving the giant retailer’s plan to build a supercenter, large parking lot and a possible fast-food restaurant, Snohomish County Superior Court Judge Richard Okrent ruled Jan. 4.
Friends of North Kelsey expressed heartbreak and disbelief after the ruling and has yet to decide if they will appeal.
Friends, a group of Monroe residents, sued the city in May after the City Council approved a development agreement with Walmart.
Friends’ attorney Claudia Newman said she was surprised the judge didn’t see the disconnect between the proposed supercenter and the set of development and design guidelines that, in part, require the area to be pedestrian-friendly and not car-centric.
“I felt very confident about this,” Newman said after the ruling. She said she was going to review the decision. She said she had a “significant concern” about the judge’s decision that the City Council could conclude Walmart’s plans jive with the guidelines without providing supporting evidence as to how.
The City Council, Okrent ruled, was justified in its findings that the Walmart supercenter does not need to comply with development guidelines adopted for North Kelsey, guidelines that “should build a unique, high-quality identity that complements — but does not duplicate — downtown Main Street” and calls for pedestrian-friendly focal points and a broad range of commercial and civic activities. The city spent months developing and seeking public opinion on the guidelines, which Friends argued were essentially dismissed by the City Council in its hurried review of Walmart’s plans.
Okrent ruled the city was correct in determining the village green and a community plaza were meant for the south parcel of North Kelsey, and that the Walmart development plan has sufficient connections from the Walmart on the north parcel to the yet-to-be-built amenities on the south parcel, which is available for sale.
He also said the city correctly interpreted the word “should” when comparing Walmart’s proposed development against the guidelines.
The guidelines, Friends argued, are a “critical regulatory tool” to make sure that the North Kelsey area is developed in the cohesive way the city and citizens intended when they adopted the North Kelsey plan in 2004.
The plan outlined some exceptions in which a developer can sidestep one or more of the guidelines, such as when a development plan meets the intent of the guidelines in some other way. But, Friends argued, where the word “should” appears in the plan, it is defined to mean the development “must” or “will” satisfy the guideline in question.
Friends argued that the city failed to support how Walmart’s plans met those exceptions under the guidelines.
Okrent decided the city was not required to do that.
“When the City Council makes a decision under one of the options under the word ‘should’... that in and of itself is the finding. And I have to agree with the city they do not have to give a reason for that finding,” Okrent said.
While reading his decision, Okrent reiterated several times that his decision was not based on his personal sense of aesthetics.
One design guideline, for example, was to create a strong identity for the development, with a design unique to Monroe, using a combination of traditional and modern elements to form a park-like setting that is understated and subtle, applying the use of local artists where possible.
The city argued the facade modulations and variations in materials and color, as well as landscaping around the perimeter and in Walmart’s parking lot, satisfy this guideline.
“Friends of North Kelsey argue this is simply window dressing and not unique,” Okrent said, but he added that he finds the City Council “was not clearly erroneous” in accepting these design elements as meeting the guideline.
“It may not be what I personally would want, but nonetheless it meets that goal,” Okrent said.
Newman said she understood Okrent had to give the City Council a certain amount of discretion, but she felt she was being asked to prove her case “beyond a reasonable doubt,” which is the threshold for a criminal case.
“We’re just shocked and in total disbelief,” Friends’ Diane Elliott said after the ruling.
Newman said she thought the specific guidelines the suit highlighted would be upheld by the judge.
“A good example is the parking lot,” where the guidelines clearly called for a development that encourages walking and minimizes the use and appearance of cars and parking spaces, she said.
But with the Walmart plan, “you just can’t get around the fact that the parking lot is the centerpiece of the development,” she said.
Friends still hasn’t decided if it will appeal Okrent’s decision.
“We’re going to let this digest,” Elliott said.
If Friends appeals the ruling and loses, they would be on the hook to cover the city’s attorney fees, which are at about $17,800 through the month of November.
Many environmental groups decide not to go to the court of appeals because if they lose, they are responsible for the winning side’s attorney fees, Newman said.
“It discourages appeals,” she said, because the costs are usually “more than most environmental groups can pay.”

By STEPHANIE KOSONEN
Published Jan. 11, 2012