Court of Appeals Affirms Denial of Walmart Expansion

Yesterday, the Oregon Court of Appeals affirmed the City of Hood River’s decision to deny Walmart a permit to expand their store by 30,000 square feet. This ruling may well be the end of a long and winding road that included two denials from the Hood River City Council and three trips to Oregon’s Land Use Board of Appeals.

At the Court of Appeals, Hood River Valley Residents Committee and Hood River Citizens for a Local Economy joined the City of Hood River in defense of its decision to deny the expansion. Hood River resident Mary Ellen Barilotti also joined the suit filing a brief supporting the City’s decision.

Current Hood River law prohibits expansion of the Walmart store but the Arkansas-based retailer had sought to circumvent this law by claiming a “vested right” based on their original 1991 land use permit. Vested rights provide protection for property owners whose projects are impacted by a mid-construction rule change that makes their project illegal. Walmart’s claim was different than the typical vested rights claim because 20 years elapsed between construction at the store and Walmart’s request for a large store expansion.

While vested rights allow a property owner to complete a project under construction, they also require the property owner to “use it or lose it” by completing the project in a timely manner. In Walmart’s case, there was a 20-year time lag between the initial store build out in 1991 and the 2011 request to build the expansion shown in their original site plan. Relying on Oregon case law, the City of Hood River concluded that Walmart had lost its vested right because they had discontinued construction of the expansion for longer than the 12-months allowed by the City’s non-conforming use code.

We applaud the Court of Appeals ruling. Every property owner should have to follow the same rules—it’s only fair. Walmart wanted to play by the rules of 1991 while every other property owner in town has to play by the more restrictive rules of 2015. A common sense requirement that vested rights are completed in a timely manner is just good public policy.

We want to thank everyone who helped with the case, especially Becky Brun, Board President of Hood River Citizens for a Local Economy, and the wonderful attorneys who worked on the case: Sean Malone, Ken Helm (now a State Representative), Mary Ellen Barilotti and Brent Foster.