LUBA again upholds City of Hood River's right to deny Walmart expansion

Oregon Land Use Board of Appeals (LUBA) ruled Friday in the city’s favor on Walmart corporation’s latest appeal of the city’s determination that the company does not have the right to expand its West Cascade store.

City attorney Dan Kearns informed City Council of the decision Monday. Kearns said that he is certain Walmart will appeal the LUBA ruling; the company has 21 days to do so, according to Kearns.

“It comes down to local governments’ ability to interpret its own code,” Kearns said. “Clearly you (council) gets to decide” if Walmart is compliant with city code.

In January, Greg Hathaway, attorney for Walmart Stores, Inc., filed with the Oregon Land Use Board of Appeals (LUBA) the appeal of the city’s decision made in December 2014 to deny Walmart the ability to add a 30,000-square-foot expansion to its current 72,000-square-foot store on Wasco Avenue.

"We look forward to reviewing the decision in detail and evaluating our options,” said Delia Garcia, Walmart spokesperson. “LUBA's decision notwithstanding, we believe we retained a vested right to eventually expand the Hood River Walmart to better serve our customers and meet the changing needs of the community. While we expected in good faith to build on this legacy--creating more jobs and more opportunity -- by expanding the store, we remain committed to serving our associates and customers in the Gorge.”

Kearns said LUBA appears to have rejected the Walmart argument that it “lost the right to vestment before we knew we had one.

“LUBA reasoned that ‘once it became non-compliant, you have 12 months to act and you did not’,” Kearns said.

The January filing marked the third time in as many years the issue had been sent to LUBA. As reported in January in a Hood River News article by Ben Mitchell, the timeline has gone like this:

In February 2012, an ad hoc citizens group, Hood River Citizens for a Local Economy (HRCLE), appealed the council’s original decision in December 2011 to approve the Walmart expansion. LUBA subsequently remanded the decision to the council on the basis of procedural errors that the board said were made.

The retailer’s 72,000-foot store was approved by the city in 1991, along with the option to construct a 30,000-foot expansion. The land Walmart is built open is zone light industrial and in 1997 the city changed the text of its light industrial ordinance tin order to restrict commercial uses on LI land, which made Walmart a non-conforming use.

In 2011, Walmart approached the city to request a site plan approval for the 30,000-square foot expansion and in December of that year, the city approved the request.

That’s when the HRCLE group stepped in. One member of that group, Becky Brun, was elected to council in 2014.

In December 2012, the council reversed its stance and ruled that Walmart’s vested right to expand the store had expired and thus denied the expansion. Walmart then appealed the new decision to LUBA, which in turn remanded the decision again to the city, ruling that councilors had made additional procedural errors when they considered Walmart’s application. In December 2014, a public hearing was held to address the most recent remand and councilors voted once again to deny the expansion.

The last time Walmart appealed the decision, the retailer challenged the process by which Councilor Kate McBride had been allowed to participate in the Dec. 2012 decision. McBride, who in the early 2000s publicly voiced her opposition against what was ultimately an unsuccessful attempt to build a Walmart Superstore just outside the city limits, recused herself from the vote, but was brought back in to break a 3-3 council deadlock in a situation known as the “rule of necessity.”

In earlier appeals, Walmart had also asserted the city had improperly interpreted its municipal code regarding the discontinuance of nonconforming uses when considering the application — an assignment of error that LUBA did not end up considering.

LUBA ruled the city invoked the rule of necessity “prematurely” and that McBride did not adequately disclose her ex parte communications regarding Walmart prior to her vote. As a result, a significant portion of the Dec. 2014 remand hearing was spent discussing the very subject, as well as entertaining multiple motions in an attempt to vote without calling back McBride and invoking the rule of necessity, which proved futile.