Photo by Adam Lapierre
Making his point, Walmart attorney Greg Hathaway addresses the Hood River City Planning Commission in a 2011 full-house hearing on the store's expansion application.
As of Tuesday, October 7, 2014
You may have seen the mailers this summer or the full-page color ads in recent weeks in the News from Walmart regarding a potential expansion of the retailer’s Hood River location, asking citizens write or call the city and voice their support for the store’s expansion.
Now, the issue of the expansion will come before the Hood River City Council, which has to decide next week how it will begin to address a remand from the Oregon Land Use Board of Appeals that found fault with a council decision made two years ago to deny the expansion.
Last week, Greg Hathaway, attorney with Portland law firm Hathaway Koback Connors, who has represented Walmart in the past, sent a letter to Mayor Arthur Babitz and city councilors requesting that the city “initiate the remand” process and conduct another review of Walmart’s request to expand the retailer’s Hood River store.
The question of expansion, in some ways, is as old as the store itself. In 1991, the city approved a plan that allowed Walmart to construct a 72,000-square-foot store as well as a 30,000-square-foot expansion. Walmart built the store in 1992 but did not construct the expansion.
The land Walmart is built upon is zoned light industrial and in 1997, the city changed the text of its light industrial ordinance in order to restrict commercial uses on LI land — a move Babitz said was in part prompted by the presence of Walmart — which rendered the existing store a non-conforming use. He noted that a few years later, the city passed a “big-box” store ordinance that prevents stores greater than 50,000 square feet from being built.
After a failed attempt to construct a Walmart Superstore outside the city limits in the early 2000s, Walmart approached the city in 2011 to request a site plan approval for the 30,000-square-foot expansion. In December of that year, council approved the request determining Walmart had a “vested right” to continue the expansion regardless of the fact that it was now a nonconforming use.
However, an ad hoc citizens group, Hood River Citizens for a Local Economy, appealed the decision of the city council to LUBA, which then remanded the decision to the city council, arguing that the city had not properly determined whether Walmart had lost its vested right to complete the expansion due to a discontinuance, since nearly 20 years had elapsed between the time Walmart built the store in 1992 and sought an expansion in 2011.
Ultimately, the council did decide the vested right had expired, after deadlocking in a 3-3 vote during a December 2012 meeting. To make the decision, the city invoked the “rule of necessity” and brought in Councilor Kate McBride to break the tie, who had recused herself in previous meetings due to her past public opposition of the Walmart Superstore. McBride cast the deciding vote, arguing that Walmart’s vested right had expired, which disallowed the expansion.
Walmart then appealed that decision to LUBA, which again remanded the decision to the city to correct procedural errors related to the December 2012 meeting. The first was that McBride did not adequately disclose ex parte communications regarding Walmart prior to her vote and that both sides must be given the opportunity to rebut or question those contacts. The second, was that the city invoked the rule of necessity “prematurely” when it made its decision and did not make enough attempts to arrive at a decision without McBride’s vote.
LUBA’s ruling came in May 2013 and requires a decision be rendered within 90 days of Walmart’s request to hold a hearing, according to Babitz. Hathaway’s office was contacted as to why Walmart had waited well over a year to initiate the request for a hearing, but a response was not received as of press time.
Since the last time the city heard the issue, there have been a few developments regarding individuals involved in the remand:
- Councilor Jeff Nichol, who voted that Walmart’s vested right had expired, is no longer on city council. Mark Zanmiller now fills that seat.
- Becky Brun, who is listed as one of the opponents to Walmart, is currently running for city council.
- Kenneth Helm, a Beaverton attorney who has represented the opponents in the past, is now a candidate for the State Representative race in the 34th District. His law office was contacted to see if he would still be representing the opponents, but no response was received by press time.
The city will decide at its next meeting when and in what manner it will conduct a hearing on the remand. The city’s next meeting is scheduled for Tuesday, Oct. 14 at 6 p.m., moved from Monday due to the Columbus Day holiday.