Council to address Walmart expansion Tuesday

The scope of the public hearing will be extremely limited, according to a notice released by the city earlier this week. Council will essentially have to decide if the city’s municipal code on non-conforming uses is applicable to Walmart’s claimed vested right and whether that vested right to expand the store has expired.

The hearing will occur at 6 p.m. at City Hall at 211 Second Street. Those who need special ccommodations to attend the hearing or want more information should call 541-387-5212.

Walmart’s store on Wasco Avenue was approved by the city back in 1991, which also allowed for the 30,000-square-foot expansion. Walmart built the 72,000-square-foot store in 1992, with the expansion planned later.

The land Walmart is built upon is zoned light industrial and in 1997, the city changed the text of its light industrial ordinance in order to restrict commercial uses on LI land. According to Mayor Arthur Babitz, a few years later, the city also passed a “big-box” store ordinance that prevents stores greater than 50,000 square feet from being built.

In 2011, Walmart approached the city to request a site plan approval for the 30,000-square-foot expansion. In December of that year, council approved the request, determining Walmart had a “vested right” to continue the expansion regardless of the fact that it was now a nonconforming use.

However, an ad hoc citizens group, Hood River Citizens for a Local Economy, along with Mary Ellen Barilotti and City Councilor-elect Becky Brun, appealed the decision of the city council to LUBA, and the issue has bounced back and forth from the city to LUBA since then.

In addition to having to evaluate the vested right issue, the city council will also have to be concerned with how it makes its decision. The last time the city made a decision pertaining to Walmart, council was required to invoke the “rule of necessity,” since the councilors deadlocked in a 3-3 vote on whether the store’s vested right to expand had expired. Councilor Kate McBride, who had recused herself due to her public opposition to a separate Walmart Superstore that had been proposed on Country Club Road in the early 2000s, was brought back in to break the tie. McBride voted that the vested right had indeed expired.

In its latest ruling from May 2013, however, LUBA ruled the city had invoked the rule “prematurely” and didn’t make enough attempts to break the tie without bringing in McBride. LUBA also ruled that McBride had not adequately disclosed her ex parte communications regarding Walmart prior to her vote and that both sides must be given the opportunity to rebut or question those contacts. Babitz has said that McBride will not be allowed to participate in deliberations, but can be called in to vote if necessary, although will likely look to avoid having to invoke the rule of necessity.

In addition to the subject of deliberations being extremely narrow, what will be allowed during the public hearing by way of proceedings will also be highly constrained. As many aspects of the expansion have already come before the council in past hearings, Tuesday’s hearing will be an “on-the-record” proceeding, with neither side allowed to raise new issues or present new evidence that isn’t already in the record from past hearings.

Each party is allowed to submit to the city a memo, three pages maximum, containing arguments that do not include new evidence or new legal issues. At the hearing, parties follow the same rules regarding content, with each side allowed 10 minutes to make “summary legal argument.” The applicant, Walmart, gets to conclude testimony with a three-minute final rebuttal.

The hearing will occur at 6 p.m. at City Hall at 211 Second Street. Those who need special accommodations to attend the hearing or want more information should call 541-387-5212.