Wal-Mart Stores, Inc. v. City of Hood River

The general principles of nonconforming uses (including discontinuance) apply to vested rights, at least for those counties subject to ORS 215.130, the statute that provides for nonconforming uses.

In 1991, the City of Hood River approved Wal-Mart’s site plan review application for a 72,000 square-foot commercial retail store and for a 30,000 square-foot “future expansion.” The site is zoned light industrial (LI), and at the time of approval allowed for commercial retail uses outright. In 1997, the city amended the LI zone to prohibit commercial uses, making the existing store built in 1992 a nonconforming use. In 2011, Wal-Mart applied to the city for (1) non-conforming use approval for minor alterations to the existing store, and (2) construction of the 30,000-square-foot future expansion authorized by the 1991 decision. Wal-Mart claimed a vested right to construct the future expansion under the common law doctrine described in Clackamas County v. Holmes, 265 Or 193 (1973). On a prior remand from LUBA, in 2012 the city decided that Wal-Mart’s vested right had expired pursuant to the city’s nonconforming use standards under Hood River Municipal Code (“HRMC”) 17.05.020(2), and approved with conditions the remainder of Wal-Mart’s proposed site plan prompting the instant appeal.

Wal-Mart argued in its first assignment of error that the city’s findings regarding HRMC 17.05.020(2) were inadequate, because the findings did not explain how HRMC 17.05.020(2) can be applied “retroactively” to extinguish Wal-Mart’s vested right. In its second assignment of error, Wal-Mart argued that the city council misconstrued HRMC 17.05.020(2) in concluding that the city’s nonconforming use provisions can be applied retroactively to a vested right prior in time to the city’s decision. Although LUBA noted that Wal-Mart had adequately raised its assignments of error in the previous hearings, the Board held that the errors provided no basis for reversal or remand, and did not establish that the city’s interpretation of HRMC 17.05.020(2) was “implausible” or inadequate. LUBA denied Wal-Mart’s first and second assignments of error. AFFIRMED.