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Wal-mart requests city hearing on LUBA remand

City council to determine scope and process at Oct. 22 meeting

Mayor Arthur Babitz (right) and Hood River City Council president Ann Frodel have a discussion during the city council's review of the city planning commission's decision to reject a 30,000 foot expansion bid by Wal-Mart. The council wound up overturning the decision, with Babitz one of five voting to allow the expansion and Frodel one of two voting to deny it.

Photo by Ben McCarty
Mayor Arthur Babitz (right) and Hood River City Council president Ann Frodel have a discussion during the city council's review of the city planning commission's decision to reject a 30,000 foot expansion bid by Wal-Mart. The council wound up overturning the decision, with Babitz one of five voting to allow the expansion and Frodel one of two voting to deny it.

The contentious Wal-Mart expansion issue will be going back to the Hood River City Council.

Wal-Mart attorneys submitted a memo to the city on Oct. 1 requesting the council conduct a public hearing on the items remanded back to the city by the Oregon Land Use Board of Appeals.

The land use board (LUBA) issued a ruling in June on one county of the city's decision making in whether or not the Wal-Mart on Cascade St. in Hood River should be allowed to expand by 30,000 square feet.

The City Council had overruled the city planning commission in December 2011 and stated that the expansion should be allowed.

Opponents of the expansion then appealed to LUBA, which remanded the decision on one count: that the city had failed to consider whether or not Wal-Mart maintained the vesting right necessary for expansion.

The decision was then left in Wal-Mart's hands to decide whether or not to request the city reconsider the elements which had been remanded by LUBA and Wal-Mart elected to move forward with the process last week.

In a 7-page memo to the council, city attorney Dan Kearns outlined the issues and process the city must address.

The first step will be a public hearing Oct. 22 to determine if it wants any further briefing from the parties involved and whether or not it wants to focus on just the issues which were remanded by LUBA or to broaden the discussion to any further issues.

At Tuesday's city council meeting, mayor Arthur Babitz, one of five council members to vote for the expansion in December, said he wanted to see the discussion focused as narrowly as possible.

"I'm really desirous of us avoiding a circus," Babitz said. "I'd like us to keep the focus as tight as we can. Just resolving legal issues is a big discussion."

In his letter to the city council request a hearing on the remand, Wal-Mart attorney Greg Hathaway requested that the city limit its hearing to the record and use no additional evidence.

"We don't believe it's necessary to re-open the record to introduce additional evidence on this issue," Hathaway wrote. "Both sides of this application (either for or against) presented historical evidence associated with the existing store and Walmart's intentions to expand it."

Hathaway additional requested that city council "schedule a meeting to consider Walmart's remand request, allow Walmart to submit new evidence..regarding the proposed minor design changes; allow parties to the LUBA case the opportunity to testify regarding any new evidence regarding the proposed design changes and limit the scope of the remand hearing to the current record regarding the issues identified by LUBA in its Final Opinion and Order."

In Kearns' memo, he states that Wal-Mart is requesting an opportunity to revise its design proposal which "necessarily requires that the evidential record be reopened to allow that change and public testimony the change to come in."

Kearns advised the council to look at the following points at its Oct. 22 meeting in determining the remand process: the council will be deciding on whether or not to allow additional arguments on the remand process, decide whether or not to allow Wal-mart to submit a store design revision, the range of legal issue to be addressed, whether or not to allow new evidence, determine who may participate in the proceedings and the scope of that participation and determine a briefing schedule and hearing on the remand.

At it's meeting Tuesday, the council decided that public testimony on the matter would be allowed at its Oct. 22 meeting, but would be restricted to the issues and processes under discussion by the council.

The city has until Dec. 29 to issue a decision on the remand, but the council indicated Monday they would likely conduct the public hearing on the remand in mid-November.

In it's ruling on the Wal-Mart case, LUBA reminded the decision on one part of one of five possible assignments of error. In that decision LUBA stated that the city had properly failed to consider whether Wal-Mart lost its vesting right to expand through abandonment and discontinuance of the process, citing two land use cases, Fountain Village and Crosley. "Fountain Village and Crosley indicate that if the local government had adopted legislation governing discontinuance of a nonconforming use, that legislation will also apply to discontinuance of a tested right. In the present case, as Wal-Mart noted...the city had adopted legislation at HRMC 17.-05 which provide that a nonconforming use is lost if discontinued for any reason for more than 12 consecutive months. Remand is necessary for the city to address the discontinuance issue...and adopt findings, presumably based on HRMC 17.05 that determine in the first instance whether Wal-Mart's vested right was lost through discontinuance."

Hood River Municipal Code section 17.05..020 states, in part: "If a nonconforming use is discontinued for any reason for more than twelve (12) consecutive months, any subsequent use shall conform to all of the regulations of the subject zone. For the purpose of this ordinance, rental payments, lease payments, or the payment of taxes shall not be alone or together sufficient to constitute continuance of the use."

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