Wal-Mart expansion faces opposition

November 16, 2011

Walmart has asked the Hood River City Planning Commission to allow expansion of its current 72,000-square-foot retail store by an additional 30,000 square feet "to provide a full-service grocery section," according to its application.

Gorge Owned Business Network, a "locally owned business" organization, Citizens for a Local Economy and many individual Hood River and Gorge residents are squaring off against Walmart attorneys, paid consultants and resident supporters on the application.

The battle lines?

First: Does Walmart have a legal right to add square footage and add a full-service grocery store based on its original 1991 planning commission approvals?

Second: Has Walmart demonstrated compliance with its existing approved site plan agreement with the city and should it be rewarded with plan amendments to its conditional use status, in light of prior performance?

The seven current city planning commissioners bear the responsibility to act on the citizens' behalf - providing review of the application and the hundreds of documents and public testimony which address Walmart's request.

The city planning commission will meet to rule on the application, after reviewing public comments and Walmart rebuttals, Nov. 22 at 5:30 p.m.

According to the Hood River Citizens for a Local Economy opposition letter, "There is no legal or factual basis for Walmart's claim it has a vested right that allows it to act outside of ... land use laws and zoning."

Walmart will provide formal rebuttal to public comments after the News deadline by 5 p.m. on Tuesday, Nov. 15. Details on its response will be provided in the Nov. 19 edition.

The opposing viewpoints?

Walmart's new application contends that it has a "vested" right to expand by 30,000 square feet primarily because: 1) that figure was listed as a part of it original site plan application and it had initially planned for that expansion; and 2) because prior to rezoning, certain infrastructure projects and expenditures were completed by Walmart, supporting that potential.

In numerous letters and written legal reviews, opponents, including Becky Brun, director of Gorge Owned and attorney Brent Foster on behalf of the Citizens for a Local Economy, have supplied the commissioners with documentation and legal opinions challenging Walmart's assertions.

A review of the city's "Decision and Conditions" ruling issued by the planning commission to Walmart in 1991 provides evidence of two important points:

One: Walmart originally did request the option for an "expansion area of 30,000 square feet."

Two: The 1991 Commission responded with specific limitations on Walmart's site plan approval. Its final ruling is quoted as follows:

"Approval is for an approximate 72,000-square-foot retail facility consisting of general merchandize, to include apparel, cosmetics, sporting goods, auto and gardening supplies only." (The original ruling document underlines the word "only.")

"If the (1991) commission wanted to include the 30,000-square-foot expansion area in its approval, it could have done so; but it did not," said Brun in her opposition letter.

Walmart's current application hopes to interpret that 1991 ruling in their favor - proposing that the request for the 30,000-square-foot expansion in its original application and a reference to that request within the commission's ruling created an implied approval.

Walmart also seeks to prove "vested" rights to expand - meaning that it should be entitled to its expansion even though the site zoning of light-industrial changed in wording - no longer permitting commercial activity.

The wording change means that Walmart cannot add commercial activities without proving "vested" rights dating back to 1991.

Walmart's argument, in part, is that it took financial steps during its initial construction 20 years ago - installing storm, sewer, water and transportation infrastructure which were large enough to accommodate a future expansion.

Opponents, in several letters, point out in formal legal language that simply asking for something doesn't imply it was promised - nor does spending extra money toward a future dream ensure a right to that dream - particularly if it does not conform to local laws.

The Walmart facility, is now classified as a non-conforming use within a light-industrial zone. It also exceeds the city's 50,000-square-foot building size limit for commercial zones. Unless Walmart can prove "vested" rights it cannot expand unless it tries for rezoning. If rezoned, Walmart would be forced to build a second building for groceries under the now applicable 50,000-square-foot limit in commercial zones.

Opponents also argue that during the 20 years Walmart contends it planned to expand, the company took no further steps, nor made any land use appeals toward expansion, even in light of changed zoning laws.

Walmart instead unsuccessfully pursued building a far larger facility near the current site on Country Club Road with the presumed intent to decommission its existing building.

In an additional set of arguments submitted by opponents, the historical behavior of Walmart toward local laws is also brought under fire.

Citing the very specific limitations set forth by the commission's original facility approval (quoted above), opponents note that Walmart has already violated its agreement with the city by selling items never authorized in its original permission to build.

Perhaps unwittingly, Walmart concurred with this assertion Nov. 8 in a letter submitted to city planning in support of their application. Text from the official Walmart letter reads:

"When the store opened in 1992, like every Walmart store, it also opened with a small dry grocery section ... by 2005, the Walmart Hood River store added more dry grocery items and coolers offering items such as deli meat, cheese, and cottage cheese. ... Other merchandise has been added over the years ... including: electronics, office supplies, outdoor goods, crafts, home furnishings, movies, books, home improvement supplies, cosmetics and personal care items, toys, photo center and jewelry."

The sale of groceries was not listed in Walmart's agreement with the city. The 1997 change in wording for light industrial zones also precludes adding any new commercial activities to non-conforming properties.

The public comment letters submitted include a listing of Walmart's alleged failure to comply with required site landscaping and adequate and functioning storm water collection systems - both of which were legally binding terms of its original site plan approvals.

The majority of letters entered into the public record were in opposition to the project, although Walmart also supplied a self-generated petition, listing 350 Hood River residents' signatures in support of expansion, obtained by clerks soliciting customers in check-out lines at the store.

In a letter included in the planning commission review packet, Commission Chair Kate McBride offered the following opinion, as a citizen, to fellow commissioners:

"There is no mention of the 30,000 square feet being approved ... In fact, it actually states what can be sold. There is no wording that allows groceries. As stated, the current Walmart is in violation of this approval because they are selling groceries ... The current building is a non-conforming use in an industrial zone. Granting a vested right (which was never approved) violates both vesting law and rules regarding non-conforming use."

McBride recused herself from voting on the matter at the Nov. 8 planning commission meeting, citing (as a conflict of interest) her previous work co-chairing an effort to stop development of a Walmart megastore in Hood River and the potential for bias on her part.

Hood River city planning staff presented a report Nov. 8, evaluating Walmart's "vested" rights arguments with an assumption that the 30,000-square-foot expansion was part of the original approval.

The non-binding staff report suggests that the planning commission could conclude expansion rights may exist based on the applicant meeting "Holmes" conditions - an Oregon legal case guideline which tests for "vested" rights.

Opponents contend that the planning staff's "Holmes" review should not have been undertaken at all, given that the 1991 planning commission never approved the 30,000-square-foot expansion request, therefore precluding any "Holmes" review.

The public is invited to attend the Nov. 22 city planning commission meeting to be held at the County Commissioners Board Room, 601 State St., beginning at 5:30 p.m. Citizens are still allowed to address commissioners at that meeting, although consideration of written comment closed Nov. 8.

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