Friday, October 10, 2003
Undercurrents of legal threats rippled through the final arguments on Wednesday over Wal-Mart plans for a super center.
The Hood River County Planning Commission was informed by Greg Hathaway, the attorney for the applicant, that Wal-Mart officials believed all of the site plan criteria had been met in a “legally defensible” manner.
“In my opinion, this is the best looking Wal-Mart store in the state of Oregon because of the efforts that have been made to address the compatibility standard; we took that challenge to heart and created a unique ‘Hood River look’,” said Hathaway.
Conversely, the appointed body was informed by the Citizens for Responsible Growth, the opposition group, that it feels the city would be liable for any flooding brought by Wal-Mart’s development. CRG said that scenario could occur at the Columbia Gorge Hotel if 53,134 cubic yards of fill material was added to the retailer’s 16-acre property at the junction of Frankton and Country Club roads.
“The court has found local jurisdictions libel for flood damage especially when it can be shown that concerns were raised at the development hearing but ignored,” said Roger Sutherland, an engineer hired by the CRG.
Hathaway said the attempt by Sutherland to “create doubt” was overshadowed by the fact that only Wal-Mart had performed a complete hydrology and hydraulic analysis of the area around Phelps Creek, which runs through the site. However, he said Wal-Mart still had several “possible solutions” to alleviate any outstanding concerns. Although he declined to elaborate more about these options, Hathaway asked that the official record be left open until Oct. 15. That request for a seven-day continuance triggered a statutory process that also allows other involved parties to submit new information. A second seven-day period, ending on Oct. 22, provides both proponents and opponents with the opportunity to rebut new evidence. As the applicant, Wal-Mart will then be afforded a final seven days, until Oct. 29, to write up closing arguments that must be based on the existing record.
The Planning Commission plans to deliberate on the plans for a 186,000 square foot store at 7:30 p.m. on Nov. 12 in the county courthouse. A decision will also be made that evening on a request by Stu Watson and Kate Huseby, CRG co-chairs, for “standing” in the case. The two residents, who live near the proposed site, are seeking the right of appeal by claiming that Wal-Mart’s new store would adversely affect their quality of life because of increased lighting and traffic. They also contend that the larger store injures the mission of the CRG to promote the growth of smaller businesses that complement a rural life-style.
Hathaway acknowledged that “at the end of the day” approval of the application would most likely hinge on the floodplain issue. Wal-Mart’s engineer David Gorman said that he had used modeling that was approved by the Federal Emergency Management Agency. He said the county needed to be careful about locking itself into a precedent that allowed for “no net loss” of floodplain storage because that could prevent even the replacement of culverts in the future.
In fact, Gorman argued that by enlarging the culverts under Frankton and Country Club roads, Wal-Mart would be eliminating some of the flooding that had historically occurred in the area. Gorman said his work had shown that the retailer’s property comprised less than .37 percent of the 4,400 acre floodplain.
“Wal-Mart is not intending to build a store here in a way that’s going to adversely impact the Columbia Gorge Hotel, there’s no way in the world that we would be in this community and allow something like that to happen,” said Hathaway.
Sutherland said the engineering work done by Gorman was erroneous because of miscalculations in the high water surface elevations during flooding. He said the county’s criteria required that there be “no adverse impact” from development in the floodplain, and that meant that no fill material should be allowed.
“The issue is not 16 acres of pavement, the issue is that it’s in a floodplain and they haven’t modeled it correctly, so how can we believe they understand what the impact is?” asked Sutherland.
Hathaway challenged the City of Hood River for its stand against the proposal because of the “mass, scale and bulk” of the building. He said the municipality first tried to shut down the new development by passing a “big box” size limitation of 50,000 square feet. However, he said Wal-Mart submitted its application before the county had also adopted that standard for the property within the urban growth area, which is under its jurisdiction. So, Hathaway contended the city then centered its fight around the issue of “compatibility.”
“If you adopt the city interpretation on compatibility today, you must then impose it on the next project — which could include a community college. It’s a very unreasonable standard because it doesn’t allow the county to evaluate a project on its own merits,” Hathaway said.
He commended county planners for having the “courage” to interpret the criteria differently. The county’s site plan review guidelines state, “The height, bulk and scale of buildings shall be compatible with the site and buildings in the surrounding area. Use of materials should promote harmony with surrounding structures and site.” Eric Walker, senior planner, determined the standard meant that development on the commercial property had to visually blend with its environment. He worked with Wal-Mart to break up the facade of the building with gables and landscaping so that it appeared to be of similar size with other buildings in the area.
“We attempted to write very complete and objective findings on our interpretation of the compatibility standard,” said Walker to the Commission.
He was praised on that objectivity by Hathaway, who said Walker’s diligence had held Wal-Mart to the highest possible standards and led to a “unique” design.