All you ever wanted to know about Monday's city council Wal-Mart hearing (and then some)

Mayor Arthur Babitz (right) and Hood River City Council president Ann Frodel have a discussion during the city council's review of the city planning commission's decision to reject a 30,000 foot expansion bid by Wal-Mart. The council wound up overturning the decision, with Babitz one of five voting to allow the expansion and Frodel one of two voting to deny it.

Photo by Ben McCarty
Mayor Arthur Babitz (right) and Hood River City Council president Ann Frodel have a discussion during the city council's review of the city planning commission's decision to reject a 30,000 foot expansion bid by Wal-Mart. The council wound up overturning the decision, with Babitz one of five voting to allow the expansion and Frodel one of two voting to deny it.

Come Monday at 6 p.m. the issue of whether Walmart can expand its Hood River store by 30,000 square feet will come before the city council for the second, and possibly, final, time.

What is being decided?

In November of 2011, Walmart requested permission from the Hood River City Planning Commission to expand its store.

That request was denied by the planning commission in late November 2011.

The next month the city council undertook an “on the record” review of the planning commission decision, eventually overturning the planning commission decision by a 5-2 vote and approving the expansion.

Meeting details

The Hood River City Council meeting on the remanded LUBA order on the city’s approval of a 30,000-sqare-foot Walmart expansion will be held at 6 p.m. Monday, Dec. 10, in the council chambers at City Hall, 211 Second St.

The meeting will be an on the record hearing, meaning that additional public testimony on the matter will not be allowed; however the public may attend and observe.

The council reserves the right to asks questions of those who submitted information or comments during the public comment period.

The council will only be addressing the remanded portion of an appeal filed by opponents of the Walmart expansion.

Walmart remanded one portion of the appeal “for the city to address the discontinuance issue … and adopt findings, presumably based on HRMC 17.05, that determine in the first instance whether Walmart’s vested right was lost through discontinuance.”

The council will not be addressing any of the other issues raised in the appeal.

The council will have only six eligible members at Monday’s hearing.

Council member Kate McBride recused herself from the process. McBride also recused herself during the planning commission decision process in November 2011 when she was a member of that body.

McBride replaced former council member Ann Frodel in January 2012, Frodel was one of two council members to vote against the expansion in December 2011.

Mayor Arthur Babitz, Jeff Nicol, Ed Weathers, Brian McNamara and Carrie Nelson voted in favor of the expansion last December while Laurent Picard voted against.

Opponents of the expansion then appealed the decision to the Oregon Land Use Board of Appeals, which returned a decision in June.

What did LUBA say?

Opponents of the expansion pointed to three different alleged faults or “assignments of error” in the city council’s process of allowing the decision.

Those three assignments of error included a total of seven direct points.

LUBA ruled in favor of the city and Walmart on six of those seven points, but remanded the final one to the city for additional review and consideration.

What did LUBA remand?

While it may only be one of seven points, the issue that LUBA returned to the city is a big one.

LUBA found that the city did not properly consider whether or not the city’s nonconforming use code applied to the expansion.

City of Hood River information on Wal-Mart remand

Information and links provided by the city of Hood River regarding the LUBA remand of the city's decision to allow a 30,00 sq ft expansion at the Hood River Wal-Mart.

[T]he city has adopted legislation, at HRMc 17.05, which provided that a nonconforming use is lost if discontinued for any reason for more than 12 consecutive months. Remand is necessary for the city to address the discontinuance issue … and adopt findings, presumably based on HRMC 17.05, that determine in the first instance whether Walmart’s vested right was lost through discontinuance.

How did LUBA arrive at its decision?

LUBA based its remand order largely on two prior cases: Fountain Village Development vs. Multnomah County and John Crosley vs. Columbia County.

Both cases cover the loss of vested rights through discontinuance or abandonment of a project, which in the instance of both cases was a rural residence on county property.

How is this case different from those two?

Both fountain village and Crosley dealt with counties, which have non-conforming use regulations applied through state law.

Oregon Revised Statutes section 215.103 (7)(a), which covers the alteration of non-conforming uses, states: “Any use described in subsection (5) of this section may not be resumed after a period of interruption or abandonment unless the resumed use conforms with the requirements of zoning ordinances or regulations applicable at the time of the proposed resumption.”

The city (correctly, as noted by LUBA) determined that ORS 215.103 did not apply to the Walmart expansion.

However, LUBA noted “that only begs the question: What authority does govern the question of discontinuance of the vested right claim by Walmart in the present case?

In approving the Walmart expansion, the city relied heavily on the case of Clackamas County vs. Holmes, which established common law doctrine on vested rights.

However, LUBA said the city did not consider the findings of Fountain Village and Crosley, which evolved out of the Holmes findings.

“{Discontinuance is potentially an issue under any application of the Holmes common law vested rights doctrine, even if no other legislation applies. As a refinement of that doctrine, Fountain Village and Crosley indicate that if the local government has adopted legislation governing discontinuance of a non-conforming use, that legislation will also apply to discontinuance of a vested right,” LUBA wrote in its remand decision.

Does the city have legislation which applies to the situation?

That depends on which side you listen to.

Hood River Municipal Code Chapter 17.05 deals with non-conforming uses. The Walmart store is currently a non-conforming use, after the parcel it occupies was rezoned in 1997.

HRMC 17.05.020 states in part:

“A nonconforming use shall not be expanded or moved to occupy a different or greater area of land, building, or structures than the use occupied at the time it became nonconforming … If a nonconforming use is discontinued for any reason for more than twelve (12) consecutive months, any subsequent use shall conform to all of the regulations of the subject zone. For the purpose of this ordinance, rental payments, lease payments, or the payment of taxes shall not be alone or together sufficient to constitute continuance of the use.”

Prior to 1999 the city also had an additional area of non-conforming use code on the books, HRMC 17:05.10 (e), which was eliminated in a code re-write in 1999, was in effect when the Walmart became a non-conforming use, but has no current analogue in the city code.

The section of code states: “Nothing contained in this title shall require any change in the plans, construction alteration or designated use of a structure for which a permit has been issued by the city and construction has commenced prior to the adoption of the ordinance codified in this title, provided the structure if nonconforming or intended for a nonconforming use, is completed and in use with two (2) years from the time the permit is issued.”

During oral arguments over the appeal on the city’s approval of the expansion, a LUBA judge told City Attorney Dan Kearns that “It looks to me like (Section) E might not have this kind of a project right in the crosshairs but it comes pretty close … If this section were to be applied in this case, it has you right in the crosshairs … I don’t know how you talk your way around this.”

In its final opinion, LUBA wrote that “It is not clear whether and how HRMC 17.05.010 (E) would apply to the present vested rights claim” and declined to address the issue further because the issue was not raised with enough specificity by the appellants during the city process.

In a memo to the city, Walmart attorney Greg Hathway wrote that while the current city code may cover non-conforming use, it does not address whether or not Walmart lost its vested right to expand its store.

Hathaway argues that city is not required to apply HRMC 17.05 to the Walmart case both because the code does not apply to vested right and because LUBA uses the phrase “presumably based on HRMC 17.05” in directing the city to determine whether Walmart’s vesting right was lost through discontinuance.

“Since the City is not required as a matter of law to apply HRMC 17.05, the City has discretion to decide how it wishes to address the remand issue and whether Walmart’s vested right has been lost through discontinuance based on the facts of this particular case. There are no cases directly on point how to apply a vested rights discontinuance analysis to a development that is approved with distinct components, where some of the components are fully completed, and others are not,” Hathaway wrote.

In his own memo, city attorney Dan Kearns agrees with Hathaway.

Attorney Ken Helm, representing Hood River Citizens for a Local Economy, which appealed the city council approval of the project, naturally takes the opposite view that the city code applies to the vested right use by governing non-conforming use.

Helm sites LUBA’s decision in Crosley, stating, “the right that the holder of a vested right has is the right to continue ‘construction’ of a proposed use until construction of that proposed use is complete and the vested right is converted into a nonconforming use, or, put another way, the nonconforming use is fully established.”

He goes on to state that “Walmart took no further action on the expansion after zoning changed in 1997. Arguably former section 17.05.010 (E) only gave Walmart until 1999 to finish the expansion area. But even after that time, and after the 1997 zoning code amendments, Walmart still did not take action to continue construction on the expansion area.”

Why is this case a big deal?

Regardless of what side anyone is on, they should be able to agree with Hathaway when he notes that “there are no cases directly to apply a vested rights discontinuance analyses” to the situation.

When LUBA has ruled on previous vested right cases, it has involved counties, not cities.

“Our attorney feels confident this is a precedent-setting case,” HRCLE chair Becky Brun told the city council at its last meeting.

A win for Walmart opponents could give them ammunition to use against the chain in other attempts to build stores in cities around the state, while a win for the city and Walmart would give the chain a precedent to call upon in any future challenges.

What happens next?

The council will either find cause to uphold its previous decision, or reverse and deny the expansion.

Either way, the decision is likely to be appealed back to LUBA.

If LUBA disagrees with the city’s decision, it could potentially remand it back to the city, setting up a potential ping-pong action back and forth until LUBA is satisfied.

“It would not be the first time” something like that has happened, a representative for the board said earlier this month.

Any LUBA decision is likely to be appealed to the Court of Appeals, which could either uphold the LUBA decision, or remand it to the board.

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