Friday, December 14, 2012/lk
The next few months will be busy ones for opponents and proponents of Walmart as they prepare to reappear in front of the Oregon Land Use Board of Appeals.
On Monday night the Hood River City Council voted 4-3 to overrule a previous decision and disallow a 30,000-square-foot expansion of the Hood River Walmart store.
In December 2011, the council had voted 5-2 to allow the expansion, but that decision was remanded by LUBA to the city forcing them to determine if Hood River municipal codes governing non-conforming uses applied to the store’s request.
On Monday the council determined that those codes did apply and that they prohibited the expansion, but reached that decition only after calling council member Kate McBride in to break a 3-3 deadlock. McBride had previously recused herself from the case to avoid the appearance of bias after opposing a super Walmart store on county land several years ago.
The council used a rule set out in the city charter, “the rule of necessity” to vote McBride back on to the council. McBride then had the option of continuing to refuse to vote, or voting to break the tie. She chose to vote.
If the vote had remained deadlocked at 3-3, the original planning commission decision denying the expansion would likely have been adopted as the city decision, leading to a likely appeal by Walmart.
The Warrenton City Council in a similar situation, decided to take that approach on Tuesday when it voted to send the city planning commission decision — allowing Walmart to build a store in the town — straight to LUBA.
Two of the attorneys involved in the Hood River case, opposition attorney Ken Helm and Walmart attorney Greg Hathaway, both argued in the Warrenton case as well.
Walmart is waiting for the final facts and findings of law to be signed off by Mayor Arthur Babitz before deciding whether or not to appeal.
“We are disappointed with the reversal of Council’s earlier approval and will evaluate our options to meet customer demand and create new community jobs,” said Walmart spokesperson Rachel Wall.
The Walmart case returned to the city after LUBA determined that the city had not properly addressed its own municipal codes affect on Walmart’s claim of “vested” rights to expand. The store became a non-conforming use in 1997.
The initial vote on the matter in December 2011 was 5-2. In the current 4-3 decision both Jeff Nicol and Brian McNamara switched their votes, with McBride voting against the expansion in line with her predecessor, Anne Frodel.
Nicol said that he decided to change his vote after seeing what LUBA remanded to the city.
“The last time around based off the legal guidance we were given I was really interested in this vested right concept and what we were and weren’t allowed to rule on based on our code; but felt that on the legal guidance we were given that some of things I wanted to apply were not applicable,” he said.
“I felt that LUBA on appeal sent one of those items back and said that we had the discretion to apply those if we want — not the obligation to apply it. But with that discretion I wanted to dig deeper and felt there were more facts in favor of denial.”
Helm said that having his clients go back and research the legislative history of Hood River’s non-conforming use codes made all the difference.
“In the first round the focus was on whether the planning commission in 1991 had actually approved 102,000-square-foot building. We argued very strongly at planning commission on that and we won on that issue at planning commission. Vested right really got lost in the mix ... and it didn’t receive as much attention as it should have,” Helm said.
“Because of that (City Planning Director) Cindy (Walbridge) and (City Attorney) Dan (Kearns) and myself didn’t think to go back and look at previous versions of the zoning code to see if there was anything in ... 17.05 which would have answered the question,” he said.
“We all missed it; and in hindsight it was a mistake on my part and on their part. Fair is fair and we can spread the blame around. My clients dug around even further and they found the 1980 version and they brought it to my attention. I had to try to find a way to argue that.”
“There were great legal arguments made on both sides. Everybody did their homework and made our jobs really hard,” Nicol said.
McBride said that when she was asked to vote by the council, she never considered refusing to vote.
“I had kept up on it the whole time,” McBride said. “I felt I was able to make an impartial decision.”
Hathaway is likely to challenge McBride’s participation to LUBA, but the city did refuse a request by the Walmart attorney for a one-week continuance of the hearing.
The council wanted to vote while the current council was still sitting before Mark Zanmiller takes Nicol’s place in January.
While he may not have been granted his continuance, Hathaway will be able to challenge McBride’s participation to LUBA and the council instructed Kearns not to object to that motion.
Those objections could, through the form of a deposition or records requests, attempt to prove that McBride was biased in her decision.
Mayor Arthur Babitz said the he was satisfied with the conclusion that the council reached, even though he was among the three voting in favor of allowing the expansion.
He also felt McBride did nothing wrong by deciding to vote.
“I felt she shouldn’t have recused herself in the first place,” Babitz said. “But that was her choice.”
With McBride participating, Helms felt the council reached the correct decision.
He also intends to turn one of Hathaway’s own arguments against him if the decision is appealed to LUBA.
Throughout oral arguments at Monday’s hearing, Hathaway repeatedly reminded the council that LUBA had given them discretion in how they decided the case.
“The assumption was the deference would only be due if they approved (Walmart’s) request,” Helm said. “Well it works in our favor now.”