The Hood River City Council has only one question to answer but plenty to ponder over the next two weeks.
During the Nov. 26 meeting (the last available for public testimony before the council deliberates whether or not a Walmart expansion was allowable under Hood River municipal code), the council heard from several citizens representing both sides of the debate.
The city council will now read over the memos and written feedback it received, and deliberate, making a decision at its Dec. 10 meeting.
No further public comment will be allowed, but the council may question those who submitted information during its Dec. 10 deliberations.
The question the council must answer is fairly short, but very complex.
“The only question at issue on remand is whether and to what extent the discontinuations provision of the City’s nonconforming use code chapter (HRMC 17.05) applies to Walmart’s vested right claim,” City Attorney Dan Kearns wrote to the council in a memo outlining options and issue for the case.
The city must determine if Walmart’s right to expand was lost through discontinuance. Walmart has been seeking expansion approval, claiming it retained a “vested right” to expand based on its original 1991 site approval. At the heart of the current question, and central to the remand from LUBA, is a change in zoning on the Walmart property that went into affect in 1997. That year, it became a non-conforming use, bringing in additional regulations affecting expansion, based on that zone change.
At the heart of the issue is Hood River Municipal Code section 17.05, which governs discontinuance of nonconforming use projects. See below for the complete wording of the section.
Opponents of Walmart’s expansion cite the lack of action taken by Walmart to expand within the time limits imposed by the non-conforming use regulations. They contend that this inaction or discontinuance of use nullified the “vested right” claimed by Walmart.
The city council originally voted 5-2 in December 2011 to overturn a planning commission denial of Walmart’s request, allowing the 30,000-square-foot Hood River store expansion to go ahead.
Local business advocacy group Hood River Citizens for a Local Economy appealed the decision to the Oregon Land Use Board of appeals, which then found that the city did not properly address whether Walmart maintained a vested right to allow the expansion.
Much of the discussion Monday centered on the language of the LUBA remand to the city on the vested rights issue.
In its remand order, LUBA cites the cases of Fountain Village vs. Multnomah County and Crosley vs. Columbia County as important guidance for the council, asking them to look deeper into what “authority does govern the question of discontinuance of the vested right claimed by Walmart in the present case.”
In both the Crosley and Fountain Village cases, LUBA ruled that a vested right could be lost through discontinuance of a project.
“Discontinuance is potentially an issue under any application of the Holmes common law vested rights doctrine, even if no other legislation applies,” LUBA wrote in its findings. “As a refinement of that doctrine, Fountain Village and Crosley indicate that if a local government has adopted legislation governing discontinuance of a nonconforming use, that legislation will also apply to discontinuance of a vested right. In the present case ... the city has adopted legislation at, HRMC 17.05 which provides that a nonconforming use is lost if discontinued for any reason for more than 12 months. Remand is necessary for the city to address the discontinuance issue fairly raised below, and adopt findings, presumably based on HRMC 17.05 that determine in the first instance whether Walmart’s vested right was lost through discontinuance.”
In his brief to the council, Kearns argued that LUBA’s language in the remand order was “ambiguous” and that it did not require the city to apply HRMC 17.05, but that the LUBA board was simply “suggesting” it as a possibility.
“In this holding, LUBA is not clear as to whether the city is required to apply its nonconforming use chapter by analogy to vested rights in all situations or it has the discretion to decide whether HRMC ch. l 17.05 is applicable or not,” Kearns wrote. “Thus, there are two basic arguments in the case: a) HRMC ch 17.05 applies by analogy to this vested right claim and Walmart has lost any vested right it may have had through discontinuance or B) HRMC ch. 17.05 does not apply to this situation and Walmart’s vested right to the future expansion has not been lost through discontinuance.”
Mary Ellen Barilotti and Brent Foster, two local attorneys who have opposed the Walmart expansion, both took issue with Kearns’ interpretation of the LUBA remand order.
“The city attorney knows much more about land use than I do,” Foster said, “but to suggest that maybe LUBA didn’t mean for the city to apply 17.05, and that they were very nice to say ‘presumably’ and that LUBA ‘doesn’t want to take a strong stick to the city?’ ... 17.05 is the discontinuance statute that Hood River has, so the idea that you could apply nothing, or some other statute, is problematic and I don’t think LUBA will find it entertaining.”
Barilotti said there was no way to interpret LUBA’s language as being “ambiguous.”
“The city attorney suggested there was a lot of ambiguity in the LUBA ruling, in my view there was a lot of clear language in that statute including the one that advised you, in no uncertain terms, that Fountain Village applies,” Barilotti said. “That issue, LUBA said, is essentially identical to what was presented in Fountain Village ... ‘essentially identical’ is not wishy-washy language.”
HRCLE attorney Ken Helms wrote in a memo to the city that council “could not disregard LUBA’s decisions in both Crosley and Fountain Village” as applicable only to counties and that the Hood River Municipal Code chapter 17.05 used language similar to the conclusion LUBA reached in both cases.
“Not only is the language very similar in all three provisions, the purpose is the same. Non-conforming uses of any sort are lost if discontinued for more than a proscribed amount of time,” Helms wrote. “The City Council should make no mistake, if LUBA or the Court of Appeals is confronted with HRMC 17.05 and the question of whether it applies to a vested right, both bodies will reach the same conclusion they have already made in Fountain Village and Crosley.”
Several of the speakers at Monday’s meeting were part of the local small business community, and said they hoped that Walmart would be held to the same standard they are expected to follow.
“I’m expected to fulfill my project deadlines within two years of my application,” said construction contractor Tracy Hollister, who said he hoped Walmart would not get preferential treatment because of its size.
Becky Brun, chair of HRCLE, said that the city council needed to bring this process to a just conclusion.
“You owe it to us to make a decision and not say that your hands were tied,” Brun said.
Scott Haanstad, a Walmart employee arguing in favor of Walmart’s expansion, said that LUBA had overstepped its bounds and that the issue HRCLE raised in its LUBA appeal was akin to asking for a do-over months after a football game.
“It’s not fair to come back two months after the game and say we called the wrong play, the quarterback missed the wide receiver in the end zone we’d like to do it over ... the decision you made is correct and it’s okay to stay with that,” he said.
n HRMC 17:05
Text from the Hood River Municipal Code chapter 17.05.020 (Nonconforming use):
A use that was legally allowed when established, but which is no longer permitted in the zone, in which it is located, may continue so long as it complies with all of the following requirements:
Expansion: 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.
Discontinuance: 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.
Change of use: A nonconforming use change may be approved as an administrative action. A nonconforming use may change to another similar or less nonconforming use when the degree of nonconformity is not increased, no alterations are made to the structures, buildings, or parking areas which would increase the non-conformity, and the Planning Director affirmatively finds the following:
a. Traffic: Traffic impacts generated by the use change are not increased.
b. Nuisances: Noise, dust, and any other nuisance conditions are not increased.