This past Tuesday night a crowd of anti- Wal-Mart protesters and pro- Wal-Mart advocates attended the city council’s hearing on the Wal-Mart appeal in large numbers prepped with protest signs, fervor and excitement.

With a narrow vote of 4-3, the council voted in favor of the planning commission’s denial of the proposed Wal-Mart. The Wal-Mart was intended to fill the former Circuit City building at Whipple and Industrial.

The discussion involved that the Wal-Mart was not consistent with the Conditional Use Permit (CUP) and the previous terms of potential significant environmental impacts.

Daniel Temkin, property owner of the former-Circuit City location and advocate for Wal-Mart supermarket to locate there, had issued the appeal.

The United Food and Commercial Workers Local 5 (UFCW) union, along with other local unions, were the opposition to Wal-Mart’s attempted move to Hayward.

While some councilmembers and citizens present advocated that the appeal was based on zoning issues, the wider debate surrounded Wal-Mart, whose past is plagued with controversy concerning their labor practices, wage pay and most recently the bribery scandal in Mexico that was exposed by the New York Times last month.

“I want my children to have the same opportunity I have, and that is good union jobs. I say support the planning commission’s decision,” said Jennifer Ong, candidate for Assembly District 20.

Other attendees, largely union members, said something similar. Some reiterated a common theme from the planning commission meeting in March that a grocery store that gives low wages would put more people on welfare funded from the pockets of taxpayers.

People for Wal-Mart said that it would bring business to Hayward and provide a shopping opportunity for senior citizens that live in the area.

“Businesses are watching tonight,” said Kim Huggett, CEO of Hayward Chamber of Commerce. “They are watching to see if you are willing to accept business.”

A number of points dominated the debate on Tuesday night but none trumped the overarching issue of whether Wal-Mart met the regional or sub-regional zoning qualifications for the property in question. The planning commission had said no, with an argument that a Wal-Mart supermarket is destined for a neighborhood zoning use, not regional or sub-regional.

The city staff, who had approved the Wal-Mart supermarket in January on grounds that it met the requirements of the CUP, admitted that there was no clear definition of what regional or sub-regional was.

The city staff added that no other stores on the property were challenged on being properly zoned to a regional or sub-regional marketing use. Other stores on the property include Starbucks, Quiznos, a hair salon and Wingstop.

Due to no specific definition of regional or sub-regional, the city staff interpreted the proposed Wal-Mart’s use as meeting the zoning use because of its location near a freeway.

Councilmember Bill Quirk noted though that most traffic in the area would not be coming from the freeway but instead from Whipple Road, which the city staff agreed with. Quirk said since the supermarket would not likely be utilizing traffic from the freeway enough, it did not meet a regional or sub-regional use.

Kristina Lawson, Temkin’s laywer, urged denial of the planning commission’s decision due to other regional or sub-regional applications to Starbucks and the nail salon.

“Your own city staff, including the planning expert for Interstate 880, agreed that the proposed Wal-Mart met the conditional use permit,” said Lawson.

Lawson urged the council not be “distracted” by the union’s focus on traffic generation and green house gases.

John Nunes, a UFCW Local 5 member and spokesman, and his lawyer, Mark Wolfe, advocated against the proposed Wal-Mart on grounds that it did not meet the CUP and would generate traffic that would cause a significant environmental impact. According to city staff, the environmental impact would not be significant enough to generate an analysis.

Wolfe said the CUP required a nullification of the permit when a property went unused for more than six months.

The Circuit City went out of business in 2009, thus resulting in an unused empty building for three years. Some city councilmembers, like Marvin Pexioto, questioned the city staff prior to the public comments hearing on this issue to which David Rizk, the director of development services with city staff, rejected on two points.

According to Rizk, the property never went completely unused since there are still other businesses on the property in use and also the city never took action to revoke the CUP, to which Rizk said would be necessary to properly nullify the permit.

Further, Rizk added the permit use with the property met federal and state regulations that trump the city’s authority.

A new issue arose concerning sales tax which the proposed Wal-Mart was expected to generate an estimated amount of $34,000. The Circuit City had generated $250,000 in sales tax because all products sold were taxable unlike all products in a supermarket.

Lawson attacked the sales tax issue regarding its lack of relevance citing there will be no more electronics stores looking to fill that space because they are quickly becoming a thing of the past.

“Some sales tax is better than none, right now you have none!” said Lawson.

Temkin spoke fervently before the council, arguing his tenants were subject to crime because of the blight that an empty building can attract.

“Roxanne who owns the sandwich shop there was held at gun point recently, if someone dies on this property then the blood is on your hands!” shouted Temkin at the city council.

According to Temkin, Wal-Mart has already left Hayward to seek a new property elsewhere in the Bay Area, but Temkin said if he won the appeal process then he would ask for Wal-Mart to return to Hayward.

Nunes took a moment to attack the Hayward Chamber of Commerce’s PAC “Good Government Now!” for sending out flyers to Hayward residents that called out Al Mendall for voting against the proposed Wal-Mart during the planning commission meeting. Al Mendall is currently running for City Council.

The ending vote came to councilmembers Marvin Peixoto, Bill Quirk, Olden Henson and Mayor Michael Sweeny voting in favor of upholding the planning commission’s decision with councilmembers Francisco Zermeno, Mark Salinas and Barbara Halliday voting in favor of Temkin’s appeal.

“I am a union man and I will be a union man till I die, but we need to bring business to Hayward, we need to fill some of those vacant buildings here,” said Salinas.

Pexioto argued the proposed Wal-Mart did not meet the CUP and Henson preferred the issue return to the council after there was a definition of what regional or sub-regional was.

The vote comes at a crucial time with three of the incumbents — Halliday, Zermeno and Henson — up for re-election. The Wal-Mart issue has been a popular topic during the city council race for much of the campaign this spring.