Oregon’s Land Use Board of Appeals (LUBA) has affirmed the City of Hood River’s decision to deny Walmart a permit to expand their existing store by 30,000 square feet. The Hood River Valley Residents Committee and Hood River Citizens for a Local Economy filed a joint brief with the City of Hood River in defense of the City’s denial. LUBA’s ruling may well be the final chapter in a saga that began back in 2011 and included two denials from the Hood River City Council and three trips to LUBA.
In their ruling, LUBA upheld the City’s decision that its zoning ordinance imposed a 12-month expiration date on vested rights. Walmart, which has operated a 72,000-square-foot store in Hood River since 1991, had argued it had a “vested right” to expand the store based on its original 20-year old site plan which included an expansion area. Walmart’s land is zoned Light Industrial (LI) and in 1997, the City changed its zoning code to restrict commercial uses on LI land, making Walmart’s store a non-conforming use. Hood River’s zoning code allows grandfathered non-conforming uses to continue to operate but not to expand. Hood River also has a progressive “big box” ordinance that limits commercial buildings to just 50,000 square feet. At more than 100,000 square feet, the expanded Walmart store would be over twice the size allowed by Hood River law. Walmart sought to get a pass from following the City’s current code by asserting a claim of vested rights.A “vested right” is essentially the right to finish construction of a project that was started prior to a rule change that makes the project illegal. While vested rights allow a property owner to complete a project, they also require the property owner to “use it or lose it” by completing the project in a timely manner. From the beginning, the City Council was concerned about the 20- year time lag with no construction between initial land use approval and Walmart’s request to complete the expansion. How long is too long? The City relied on Oregon case law that defines “vested rights” as a type of non-conforming use when it applied its non-conforming use laws to the project. The City’s non-conforming use laws impose a 12-month discontinuance deadline for construction.
HRVRC applauds LUBA’s 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 be completed in a timely manner is just good public policy.
It is unknown whether Walmart will appeal LUBA’s decision to Oregon’s Court of Appeals.
See Hood River News for more coverage.
