No Budging

Some El Con Mall neighbors don't want what Walmart is selling

Early in the morning of Jan. 8, Jared Lee Loughner bought ammo at the Super Walmart on Cortaro Road in Marana, according to the Pima County Sheriff's Office.

Less than three hours later, Loughner allegedly fired off 32 bullets, killing six Tucsonans and wounding 13, including U.S. Rep. Gabrielle Giffords.

The Marana store that sold the bullets is one of six local Walmarts that offer ammunition, and one of four that sell guns.

The Walmart corporation is now aggressively pushing to open a seventh big store in Tucson, this one in the center of town, at El Con Mall, against the strenuous objections of some neighbors.

The 24-hour store would be just 250 feet from houses in the El Encanto neighborhood, a nationally recognized historic district, and just across the street from the city's flagship Reid Park.

The neighbors worry about noise associated with the new store, as well as increased traffic, a drop in property values and a possible uptick in crime. Their Ward 6 councilman, Steve Kozachik, implored Walmart to drop—at a minimum—the volatile product combo of guns, ammo and hard liquor.

"Eliminating these product lines ... should alleviate some of the potential for an increase in illegal activity your new store might otherwise draw into the area," Kozachik wrote in a letter to Delia Garcia, a Walmart manager based in Phoenix.

Garcia penned an ambiguous response, saying, "I can tell you, based on the information available at this time, that the El Con Walmart is not slated to sell firearms."

At a contentious neighborhood meeting on Thursday, Feb. 3, Garcia went further, saying the store "is not slated at this time for ammunition or firearms." In a follow-up e-mail, Garcia told the Tucson Weekly more decisively, "This store will not sell firearms or ammunition."

If Walmart keeps that promise, the El Con store would be the only large local Walmart that does not carry ammo. If Garcia's pledge was meant as an olive branch to El Con's neighbors it was the only one she had to offer.

Neither the Home Depot nor the Target at El Con stays open all night, and the Walmart on Wetmore closes at midnight. But the El Con Walmart will always be open.

"Twenty-four hours is our model," Garcia said. "We want to provide convenience to our customers."

Nor would Garcia budge on the location of the store entrance, which is projected to be on the west side of the building, facing nearby houses.

"People have asked you to move the entrance to the south side," to divert traffic to the parking lot along Broadway Boulevard, said neighbor Abby Rosen. "Why not?"

"That entrance is our only option," Garcia said. Operating under design constraints, Walmart will reserve the north side of the 102,000-square-foot building for deliveries, which means that trucks will rumble past the houses. The cash registers—and the doors—will be along the long western wall, so customers don't have to walk to the far southern end to check out.

Given that most Walmarts are in retail centers much farther than 250 feet from the nearest houses, I asked Garcia whether Walmart might compromise on this entryway. The answer was no. That standard Walmart design is its first choice for its customers, Garcia said. "We would never settle for second-best."

The dustup over a Walmart at El Con has its origins in a development-rights agreement the city approved 11 years ago. At a Valentine's Day council meeting in 2000, Bob Walkup—then the new mayor—Shirley Scott, Carol West and Fred Ronstadt all voted to exempt the aging mall from any limits that might be imposed by the city's "big box" law, then in limbo. The agreement was to last 20 years.

The deal—neighbors called it a Valentine's Massacre—allowed El Con to have a Home Depot on the east side of the mall, and an unnamed big box store on the west. In exchange, El Con would ban all nighttime deliveries and construct walls around the parking lot perimeter to mitigate noise.

Home Depot was forbidden to operate all night, but the agreement allowed what was then called "Big Box B" to stay open 24 hours. If Big Box B—even then widely believed to be a Walmart—were to go beyond the footprint of the existing store, that would trigger a review by mayor and council, and a possible veto.

In the intervening years, Macy's (formerly Robinson's May) continued to operate a traditional department store on the site. But the agreement exempted the mall from disclosing plans in advance, and once Macy's jumped ship, Walmart and El Con quickly inked a lease in private.

"There was no warning," neighbor Jean-Paul Bierny said at the Feb. 3 meeting. "The reason is very clear: the inappropriateness of this kind of development in the middle of all these old neighborhoods."

Glenn Moyer, a city planning administrator, said Walmart hasn't yet submitted construction plans. Once it does, "We're required to review the drawings for compliance." If the design does comply—and stays within the Macy's footprint—it can avoid hearings before the City Council.

"El Con and Walmart want to avoid the legislative process," he said.

The neighbors aren't buying it. They say El Con and Walmart can't legally escape the hearings and the scrutiny of the public. The El Encanto Estates Homeowners Association's attorney, George Krauja, says that state law ARS 9-1203 forbids protected development rights to extend beyond seven years. That would mean the El Con agreement died a natural death in 2007.

"Under state law, the term has expired," Krauja said.

But City Attorney Michael G. Rankin begs to differ. The law Krauja cited is about "protected development rights," Rankin said, a different legal animal from a development agreement like the one the city signed with El Con.

In either case, the neighborhood may have still another legal angle to thwart the 24-7 Walmart. Under agreement, any new store has to be in "substantial conformity" with the old one, Krauja said. With groceries and beverages taking up 30 percent of floor space, Walmart in no way approximates the department store that preceded it.

"Let me ask you," he said, "is Walmart substantially the same as Robinson's May?"

The legal wrangling could happen soon. If Moyer finds the drawings in compliance, Walmart could move forward rapidly with a planned demolition in early summer.

"A demolition permit," Moyer said, "doesn't take long."

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