Tuesday, December 13, 2011/lk
The Hood River City Council overruled the city planning commission and voted to approve a 30,000-square-foot expansion plan at Walmart by a 5-2 vote in a lengthy meeting Monday night.
However, the battle is likely far from over, with opponents to the expansion planning to appeal to the Oregon Land Use Board of Appeals. LUBA's decision could then potentially be appealed to the state circuit court.
The council's decision was limited to documents and testimony already in the record from the planning commission's decision, but the meeting to make the decision stretched over four hours as council members heard arguments from attorneys on both sides of the controversy as well as limited testimony from the audience.
While deliberations stretched on past 10 p.m., it began to become apparent hours earlier which direction the vote would ultimately go.
Following the conclusion of attorney arguments, public testimony and a Walmart rebuttal, Mayor Arthur Babitz and councilors Ed Weathers, Brian McNamara, Jeff Nicol and Carrie Nelsen expressed their opinion that that the 30,000-square-foot expansion should be allowed. Councilman Laurent Picard, who attended the meeting via telephone, and council president Ann Frodel lined up in the opposite camp.
After additional deliberation over whether or not the expansion met the "Holmes" criteria for land use decisions laid out by the state Supreme Court, the voting blocks wound up staying the same for the final motion.
Earlier in the evening proponents and opponents for the expansion centered their arguments on whether the planning commission, by not expressly mentioning the 30,000-square-foot expansion at the time in its approval of the Walmart in 1991, intended to limit the structure to 72,000 square feet or to allow for the expansion.
"If you look at all the facts in terms of what Walmart was applying for, what the planning commission approved and what Walmart thought was approved, what we applied for, what agencies including ODOT thought was approved; it all leads to the fact that a 102K store was approved," said Walmart attorney Greg Hathaway in his opening arguments.
However, opposition attorney Brent Foster disagreed, saying that it did not make sense for the planning commission to put significant restrictions on the 72,000-square-foot building, place an additional 5,000-square-foot retail pad in its own section requiring a separate site plan review, but then make no mention of the 30,000-square-foot future expansion.
"Unless you think the commission intended to approve 30,000 carte blanche while putting all these restrictions on 72 and sending five back for specific review, it doesn't make much sense," Foster said.
Weathers asked Foster if the plan was to limit the building to 72,000 square feet, why did the initial statement given to planning commissioners in 1991 refer to the 30,000-square-foot expansion?
"It's describing what the request was ... it's not the conditions of approval," Foster said. "We acknowledge that the 30 is out there, but there is a big difference in wanting it and approving it."
However, Weathers, along with Babitz, McNamara, Nelsen and Nicol, ultimately disagreed.
Before the council began its deliberations, City Attorney Dan Kearns advised them on the information they had to consider, referencing in particular a letter which had been signed by four of the 1991 planning commission members saying their intent was not to approve a 102,000-square-foot store.
"LUBA laws are very clear that recollections of decision makers don't matter; what matters is the decision rendered," he said. "What matters is the written record, and that's what you have before you. You look at the text and you look at the context ... There are legitimate grounds to approve this as well as legitimate grounds to deny it."
Weathers led off the deliberations of the expansion and said the texts surrounding the decision led him to his conclusion.
"I think in the site plan application and review, the structure is referred to as a 72,000-square-foot retail structure with other items. I feel like those were inclusive, that the 72 was the original but the intent was all this," he said speaking about the expansion.
"The ambiguity of condition led me to go farther and look at the other documents ... if it was 72, 000 only and not the expansion which was in the site plan review, why was there no discussion as to the omission in the final analysis?"
"Expansion is only included in the introductory paragraph but it is there and frames the scope of the project ... I think it was approved," he said.
Council members McNamara and Nelsen mentioned the prevalence of the expansion in the public notice and other documents surrounding the decision, even if it was not explicitly noted in the decision itself.
"It was stated in the notice and everywhere," McNamara said.
"I believe it was there intent in the beginning, as well," added Nielsen. "In addition there is an affidavit of mailing from the planning director which references the 72,000-square-foot space, a 5,000-square-foot pad ... and an expansion area of 30,000 square feet."
Babitz said he viewed the expansion as approved because an expansion area was mentioned in the second sentence of the approval and not as an exception to the approval.
"The approval is in two sentences: One is for a 72,000-square-foot store plus the 5,000-foot pad then the next the parking area and space for expansion," Babitz said. "I see conditions as being an exception to that, which I see as everything being approved unless it's in one of these conditions."
Picard and Frodel argued that because there was no approval explicitly given to the 30,000-square-foot expansion in the 1991 decision that the expansion was not approved.
"What does the order say? That is the fundamental and most important question of the night," Picard said. "It follows from my logic that if all the planning commission approved was a 72,000-squre-foot structure there is no vested right to a 30,000-square-foot expansion … There is no question to me that 72,000 ... was what was approved by the 1991 commission."
After giving their initial sentiments toward denying the application, Frodel and Picard repeatedly protested the application of the Holmes standards to the decision, saying they did not believe that the Holmes standards applied because a 102,000-square-foot store was not lawful to begin with.
However, by the time the meeting crossed the 3½ hour mark, it became apparent that they were not going to win the argument. As the leaning of the counselors became clear, some opponents for the expansion began to trickle out of the room, while some stayed until the very end.
The final council vote went quietly, with only a few quiet "Yes" exclamations from Walmart supporters in the audience.
In all the deliberations, one thing both sides could agree on was that the original 1991 ruling had left itself open to legal interpretation and as Babitz put it was not "a great example of clarity."
At the start of the meeting, Babitz made it clear he wanted the city's position to be clear as the decision moves up the chain.
"We have every expectation that any decision we make tonight will be appealed to LUBA," he said. "I want to make sure they have a clear record."