The Hood River City Council, along with then Mayor Arthur Babitz, listens to advice from City Attorney Dan Kearns in December 2014 during a four-hour hearing on whether Walmart should be allowed to expand its Wasco Avenue store. The council voted 4-3 to deny the expansion on the grounds that the store’s vested right to do so had expired.
The Hood River City Council, along with then Mayor Arthur Babitz, listens to advice from City Attorney Dan Kearns in December 2014 during a four-hour hearing on whether Walmart should be allowed to expand its Wasco Avenue store. The council voted 4-3 to deny the expansion on the grounds that the store’s vested right to do so had expired.
Just over a month after it was made, a decision rendered by the Hood River City Council on whether Walmart should be allowed to expand its Hood River store has been appealed at the state level.
On Friday, Greg Hathaway, attorney for Walmart Stores, Inc., filed with the Oregon Land Use Board of Appeals (LUBA) a notice of intent to appeal the city’s decision made early last month to deny Walmart the ability to add a 30,000-square-foot expansion to its current 72,000-square-foot store on Wasco Avenue.
The filing marks the third time in as many years the issue has been sent to LUBA. In February 2012, an ad hoc citizens group, Hood River Citizens for a Local Economy, appealed the council’s original decision in December 2011 to approve the expansion. LUBA subsequently remanded the decision to the council on the basis of procedural errors that the board said were made.
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 notice of intent to appeal is the first step in the LUBA appeal process and does not include any information as to why Walmart is appealing the council’s decision. Hathaway was contacted with a request to explain the decision for the appeal but did not respond as of press time. Records show it cost Walmart $400 to file the notice of intent to appeal.
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 to break a 3-3 council deadlock in a situation known as the “rule of necessity.”
Walmart 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 ex parte contacts, as well as entertaining multiple motions in an attempt to vote without calling back McBride and invoking the rule of necessity, which proved futile.
At the end of the hearing following a decision that did not favor Walmart, Hathaway did not indicate whether his client would appeal, but stated for the record that he felt the decision the council made was “based on biased votes and that’s just simply unfair.”
The notice of intent to appeal is the beginning of a multi-step process for an appeal to be heard at LUBA. Eventually, attorneys for Walmart will have to file a “petition for review” that contains legal arguments as to why the decision should be overturned.
If LUBA does decide to remand the decision for a third time, nearly half the council could be unable to deliberate on the issue as LUBA would likely deem them biased. McBride has already officially been deemed biased by LUBA, and Councilor Mark Zanmiller could be as well as he recused himself during the Dec. 2014 hearing over comments he made in a 2012 News article — prior to his election to council — stating he was opposed to the expansion. Councilor Becky Brun, who was sworn in last week, is almost certainly guaranteed not to participate in council deliberations as she is a party of standing in the Walmart dispute.
Due to the length of procedural timelines, whatever decision LUBA makes likely won’t be handed down until sometime this spring.
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