Luba to referee bout with City, HRCLE, Walmart

March 24, 2012

On March 22 the Hood River Walmart expansion case reached a new landmark. And, like previous steps during the land-use battle, a flurry of impassioned activity surrounded the otherwise dry presentation of information and legal facts.

By 5 p.m., the City of Hood River had filed a response with the Oregon Land Use Board of Appeals, defending its ruling that allowed Walmart to expand.

Their response, prepared as a joint-brief between the city and Walmart (the applicant in the case), addressed the appeal filed by Hood River Citizens for a Local Economy, a nonprofit group that disagreed with the city council's ruling to allow Walmart to expand its non-conforming property.

In a last-minute letter delivered to Mayor Arthur Babitz on March 21, 32 hours before the city's deadline to respond, HRCLE challenged the city's decision to use Walmart's attorneys to defend the city's ruling.

The council, if wishing to respond, did not have adequate notice to address the concern. Public meeting law requires at least 24-hour notice to hold a city council meeting in order to change any previously decided actions.

The City, since learning of HRCLE's intent to file an appeal in February, has been discussing, in public session, the best way to respond. Open review of the roles of the city versus Walmart in the response brief process was recorded in the Feb. 13 minutes.

At the March 12 meeting, in open public session, Kearns reported that the arguments forwarded by Walmart in its draft brief were adequate, with minor changes, to address city interests.

The city followed a common practice of many cases brought to LUBA, and chose to allow the applicant affected by the ruling (Walmart) to draft a joint response to the appeal. The brief was created after review and corrections conducted by City Attorney Dan Kearns.

"This was discussed in open session at the last two city council meetings - Feb. 13 and March 12," said Babitz in an email to the News. Minutes from both meetings confirm this.

"We decided it was not in the public interest to expend significant funds on the LUBA appeal when Walmart is more than capable of making the argument supporting the council's decision at LUBA. HRCLE is more than capable of making the argument against," Babitz said.

"We authorized our city attorney to review the proposed response to LUBA, but not to write a separate response unless there was some specific issue that called for it. He told us last week (March 12) that he did not see that need. We agreed.

"I have personally read the legal arguments posed to LUBA by HRCLE and Walmart. LUBA will have what they need to sort out the legal issued before them," concluded Babitz.

According to Babitz, after Kearns made "half a dozen to a dozen changes", he advised the council that the 36-page brief adequately represented the interests of the city.

"The brief explains what we think the law says," Babtiz said.

On March 22, email blasts to HRCLE and Occupy The Gorge participants were sent out decrying the city's choice to allow Walmart attorney's to draft the appeal brief.

"The City Council should utilize this prime opportunity to describe to LUBA Hood River's broader interest in protecting local land-use laws. This LUBA case may be precedent-setting for the establishment and expiration of a corporation's 'vested rights' in Oregon," stated Director Becky Brun in the HRCLE email.

Brun's email went on to charge "The City Council may adopt - verbatim - legal filings and arguments prepared by Walmart for Oregon LUBA, versus submitting their own arguments. This gives unwarranted weight to Walmart's narrow development goals ..."

Brun, in a phone interview with the News, acknowledged she was unaware that the city attorney had conducted a review of the brief prepared by Walmart prior to its submission.

She maintained that even with review, HRCLE was greatly concerned with the potential precedent that may result from a successful claim to vested rights by Walmart.

"Letting Walmart's lawyers take the lead in writing the city's legal arguments seems like a bad idea because these arguments are not going to reflect the public policy concerns the city repeatedly said it had about letting Walmart use claimed development rights that were almost 20 years old," said attorney Brent Foster, a member of HRCLE.

Brun, in her email added, "The City Council should utilize this primae opportunity to describe to LUBA Hood River's broader interest in protecting local land-use laws."

Both the HRCLE and Occupy emails encouraged citizens to voice protest to the city council and mayor, without acknowledging that the deadline for the appeal was at hand.

Public sessions had already provided notice of intent on the city's part to proceed in this manner. Citizens could have requested city council attention to the matter anytime following the Feb. 29 LUBA appeal filing date.

When asked why HRCLE did not offer the city adequate time to respond to its concerns prior to the March 22 deadline, Brun acknowledged that no one from the organization had attended the prior council meetings in which the action was discussed in open session. She went on to state that the group was unaware the city would allow Walmart to write the joint brief until a few days before the deadline.

LUBA will now review the appeal, the response and the previous public record on the matter. The opposing parties, prior to the LUBA ruling will present oral arguments.

Walmart Case Background:

Walmart attorneys contend that the company and store have vested rights to expand, even though their current zoning does not allow it.

Hood River Citizens for a Local Economy, a nonprofit organization fighting the expansion, contends that Walmart was never authorized for expansion beyond the existing 72,000-square-foot store and does not have vested rights. It contends that the city erred, legally, in agreeing that Walmart has the right to expand against current zoning laws.

The City, whose representatives went on record with concerns about the validity of the claimed "vested rights," reviewed facts and drew conclusions from its interpretation of existing laws, which resulted in a ruling in favor of Walmart's expansion.

This ruling followed a contrary ruling by the Hood River Planning Commission, who ruled against the proposed expansion. Planning Commission rulings are subordinate to those of City Council.

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