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Tacoma council violated open meetings law on anti-Walmart moratorium, developer alleges in lawsuit

Tacoma city councilmembers violated the state’s open meetings act when they tried to stop Walmart from opening a store in the city, according to a lawsuit.

The lawsuit, which moved to federal court this week because it deals with allegations of civil rights violations, accuses six members of the council of discussing and evaluating the idea of a moratorium on big-box retailers during a bus ride and study session on Aug. 30, 2011.

Such a moratorium was introduced to the council’s agenda later that evening, in response to the council’s fears that Walmart planned to open in Tacoma. The item scheduled for a vote was to allow U-turns at an intersection near the property, which the council removed and instead approved a six-month ban on large-scale retail establishments.

It didn’t work. Walmart opened on the site of the former Elks Lodge in June 2013.

In August, Allenmore Medical Investors, the limited liability company controlled by developer Jeffrey Oliphant that developed the property, sued the city and members of the council for $1.8 million in damages it says was caused by the moratorium and resulting delays.

The lawsuit also describes how the developer believes the moratorium came about, though it doesn’t explain how he knows it. If the details are true, the council appears to have violated the state’s open meetings act by taking action without proper public notice.

“Because it’s pending litigation, we can’t discuss it,” Mayor Marilyn Strickland said Wednesday, referring questions to city attorney Elizabeth Pauli.

Pauli pointed out that the developer isn’t suing over violations of the open meetings act.

“Those are self-serving conclusory allegations only,” Pauli said. “There is nothing (in the open meetings act) that prevents individual council members having discussions about things related to the city. I don’t know what proof plaintiff thinks they have.”

First, some definitions, according to the state attorney general: “Action” isn’t just a vote. It’s when public officials engage in discussion, deliberation or evaluation that may lead to a final decision. Also, when public officials meet at a different time and place than a regularly scheduled meeting, it’s considered a “special meeting” that, among other things, is required to have a list of “business to be transacted” that limits what things the public officials can decide.

On Aug. 30, 2011, the City Council held a joint study session with the Tacoma Public Utility Board. It was a Tuesday, and the session was scheduled to begin at 10 a.m. at the Cowlitz Salmon Hatchery in Lewis County – about a 90-minute drive from Tacoma. Typically, the City Council’s study sessions begin at noon on Tuesdays and are held at the Tacoma Municipal Building North.

The agenda for the study session listed only tours of the hatchery, the Mayfield Dam, Mossyrock Park and the Mossyrock Dam. Minutes from the joint study session indicate it officially ended at 2:17 p.m.

According to the lawsuit, it was during the bus ride to the hatchery and throughout the study session that Strickland, councilmembers Ryan Mello, Victoria Woodards, Marty Campbell, David Boe and then-councilmember Jake Fey “discussed and evaluated the moratorium idea and the U-turn proposal and decided to present and adopt the moratorium ... at the City Council meeting to be held later that day and to remove the U-turn proposal from the meeting docket.”

That night, Mello, Fey, Campbell and councilmember Lauren Walker sponsored the moratorium, which was added to the agenda at the beginning of the council’s regular meeting.

Those four, as well as Strickland, Boe and Woodards, voted to approve the moratorium. Joe Lonergan was absent. Then-councilmember Spiro Manthou abstained, saying he couldn’t support using a moratorium to stop a specific project.

Neither Lonergan nor Manthou is named in the lawsuit.

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