Walmart expansion denied amidst tense debate

November 23, 2011

Close to 90 people packed the room. The dissenting camps were easily identified. Blue Walmart-emblazoned T-shirt wearers stood inches from others wearing ironic yellow frowning "smiley" face buttons. Attorneys from opposing sides gave impassioned arguments while the city attorney offered measured guidance.

There was no lack of drama and intrigue at the Nov. 22 Hood River City Planning Commission meeting in which Walmart's request to expand by 30,000 square feet was slated for denial in a 3-1 vote.

Ultimately, four un-recused planning commissioners at the meeting were charged with sorting through the drama, opinion, fervent public testimony and tension to arrive at their ruling based strictly on the facts of the 1991 agreement between Walmart and the (1991) city planning commission.

According to the city attorney for Hood River, Dan Kearns, the "Decisions and Conditions" ruling made in 1991 was "not a model of clarity."

Kearns advised that the wording and structure of that original ruling could be read to allow or deny the current expansion request, saying, "This is not a black or white issue." He advised that the current commission must use all the presented facts to reach its conclusion.

Going on to cite specific sections of the original 1991 agreement, Kearns added, "If it weren't for 'Condition A,' the opponents would have no case. If it weren't for the attached site plan drawing, Walmart would have no case."

In a dramatic interchange between attorneys, a letter signed by four of the five 1991 planning commissioners was brought forth for consideration. Brent Foster, attorney for the opposition, requested that the current commission reopen the record to include the letter and the former commissioners' testimony.

The letter, listing 1991 commissioners Steve Gates, Linda Maddox, Linda Keir and Peggy Dills Kelter as signatories, was handed out to meeting attendees but not commissioners.

It stated, "Although Walmart had identified a 30,000-square-foot future expansion area in its application … the commission specifically approved a 72,000-square-foot building with no provision or implied approval for an additional 30,000 square feet."

Responding with angry indignation, and at one point, threatening that Walmart would proceed to build without seeking any further planning commission approval, the Walmart attorney, Greg Hathaway, insisted that the letter be precluded from the record and that current commissioners discount its contents.

The commissioners present, Laurie Stephens, Nikki Hollatz, Casey Weeks and Nathan DeVol, ultimately ruled not to reopen the record and the letter was not viewed by the commissioners prior to their vote on the motion to deny.

Over the course of the three-hour meeting, what appeared to solidify commissioners Stephens, DeVol and Weeks' decision to deny Walmart's request for expansion was the language in the 1991 ruling under "Condition A," stating that approval was for "… a 72,000-square-foot building… only." Other commission and staff documents referencing a 72,000-square-foot building were also cited as evidence.

Stephens, DeVol and Weeks concurred that the original planning commission only approved a 72,000-square-foot building and made no provision for the expansion to 102,000 square feet.

Hollatz, the one dissenting vote against denial, cited the site plan drawing attached to the 1991 Walmart application as reason for approval, noting that the applicant's submitted drawing included the 30,000-square-foot expansion area in addition to the 72,000-square-foot-building.

The current commission's "denial" ruling against Walmart's application will become final after it is put into a formal document along with a set of "findings" and "conditions" from the Nov. 22 meeting.

The full ruling and findings document will be presented back to the commissioners Nov. 29 at 5:30 p.m. in the County Board of Commissioners board room, where a final vote to approve their decision is slated to occur.

Suggested by Kearns, this more expansive process was undertaken in order to ensure that the planning commissioners' full deliberations and arguments were included in the record in the event of an appeal by Walmart against the decision.

If Walmart does appeal, the ruling and findings of the commission will be reviewed by the Hood River City Council, who will then render a ruling on the appeal - potentially overturning the planning commission.

Following the Nov. 22 meeting, Greg Hathaway, attorney for Walmart, declined to comment on whether Walmart would seek an appeal.

Brent Foster, a volunteer attorney for the opposition, stated, "I think this is a great result. The planning commission did not just do the right thing for the community; they did the right thing legally."

Foster went on to say, "I fully expect it will get appealed, but this is not an appeal that Walmart will win.

"The planning commissioners tonight agreed that there was no approval for the 30,000-square-foot expansion in the text of the 1991 ruling," he concluded.

The current planning commission, under Kearns' advice, also responded to additional questions about "vested" rights for Walmart should the city council decide to overrule the planning commissioners' denial. All four commissioners agreed that Walmart would meet the "Holmes" test for vested rights.

Vested rights may only be claimed if the planning commission or the city council (under appeal) were to determine that Walmart was originally approved for the expansion in 1991. The Nov. 22 planning commission's slated decision denies that this approval ever occurred.

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