Tuesday, January 3, 2012/lk
With all members of the City Council present (Laurent Picard by conference call), the final order to approve the proposed 30,000-square-foot expansion of the Hood River Walmart facility has been given the go-ahead.
While the council members had already voiced their preferred votes both yea and nay at the Dec. 12 meeting, the Dec. 27 council vote on the final order made the affirming decision, with legal findings and conditions, official.
According to City Attorney Dan Kearns, city council members still had the option to change their vote on Dec. 27, if any had experienced a change of heart. No one took that opportunity.
The final tally stayed unchanged with two members opposed (Picard and Ann Frodel) and the remaining council, composed of Brian McNamara, Jeff Nicol, Carrie Nelson, Ed Weathers and Mayor Arthur Babitz, in favor.
At 27 pages, the signed final order covered more than the approval for the 30,000 square feet of additional grocery store space.
The document, prepared by city staff, also provided specific terms for architectural and building standards along with infrastructure, traffic control and landscaping terms.
Babitz noted, in his introduction to the final voting, that an opponent appeal of the decision may be advanced to the Oregon Land Use Board of Appeal.
Because of this possibility special care was taken to include, within the final order, a clear reflection of the city council's deliberations, findings and disclosures related to any ex parte discussions.
Each member was asked to disclose, prior to voting, any substantive communications that they participated in since the Dec. 12 meeting. All councilors, except Weathers, noted receiving multiple emails, both for and against the decision, but none felt these were substantive or had affected their decision-making.
Prior to the vote, Frodel then asked about potential impacts to a traffic signal project slated for the intersection near Walmart's entrances. The new signal project is proposed for Rand and Cascade, an area highly impacted by store-related traffic.
Frodel asked if a future denial of Walmart's approval, via LUBA or the Oregon Court of Appeals, would rescind the 1991 conditions that required Walmart to pay a portion of that traffic signal project.
Kearns stated that the original 1991 agreement with Walmart still requires them to pay their portion of that project cost, regardless of whether the expansion is approved in the long term.
Kearns went on to say that Walmart "may have arguments against that." He also indicated that the previous agreement remains "enforceable."
Walmart regional spokeswoman Jennifer Spall recently stated, "If it (the expansion) is approved we would pay. But if it wasn't we would not pay a dime."
Babitz stated in a previous News article that council members purposely did not consider signal costs for the area in their decision-making process. Walmart is obligated to cover $450,000 of that project cost if the city successfully proceeds with the project.
Babitz went on to add, for the record, that he still continued to have "serious concerns about inferring vested rights" for Walmart based on the lack of case law for the city council to review. An assertion of "vested rights" is an essential legal standard affecting the ability of Walmart to expand.
"I think we have expressed those concerns here well enough to let the higher courts decide," said Babitz. He was referring to footnote #4 on the final order. The text of that footnote is as follows:
"It has not escaped the Council's notice that Walmart built-out a 72,000-square-foot store within a year of approval and then waited 19 years to seek completion of the 102,000-square-foot store. Oregon law places no particular deadline on when a land owner must seek to complete a vested right development.
"However, this long hiatus raises the question of whether Walmart abandoned its vested right to the full store once it completed the first 72,000 square feet. For lack of case law on this point or direct evidence of abandonment in this case, the Council does not reach the issue."
One small change to the document was suggested by Kearns, who added a sentence to footnote #4, clarifying a legal citation raised by opponents of the project.
According to Kearns, opponents cited an ORS standard which applies only to counties and could therefore not be used to guide city council toward a denial. Otherwise, the public document was accepted as presented.
In their final nay vote, both Frodel and Picard made statements indicating that they did not believe the 30,000-square-foot expansion was ever approved by the 1991 agreement.
Babitz ended the session with the following statement:
"Land use issues are decided on the law, not personal or public sentiment. I am confident we have done our best to uphold this high and difficult standard. I'd like to thank the public for their testimony, and thank staff and council members for their countless hours of work on this issue. We have done our job in preparing a record which will allow the appeals courts to do their job."
Opponents of the expansion may file a notice of intent to appeal and the required fees within 21 days of the final land use decision.
In order to stop development while a LUBA appeal is pending, the petitioner must file a "motion for stay" of the land use decision. State law and LUBA's rules govern whether a stay can be issued in a particular case and are granted very rarely.
If LUBA grants a stay of a decision approving a specific development, state law requires the petitioner to post a $5,000 bond.
If the project is stayed and the appeal proceeds, the LUBA decision may not be the end of the road for the either party. Each may yet again appeal, bringing the LUBA decision before the Oregon Court of Appeals.