Size matters. Just ask three judges in Oregon who rejected a Wal-Mart this week based on incompatible size. Wal-Mart lost a second round in Hood River. The giant retailer tried to throw its legal weight around by challenging a decision last January by the Hood River County Board of Commissioners against a proposed 186,685 s.f. Wal-Mart supercenter. Wal-Mart challenged the rejection to the Land Use Board of Appeals (LUBA). On July 16th, the three judge panel affirmed the decision of the County, and ruled against Wal-Mart. The property is zoned general commercial (C-2) and located within the City of Hood River urban growth boundary. The surrounding area is a mix of low-density residential and commercial uses. An existing 72,000-square foot Wal-Mart store is located to the east. Phelps Creek flows through the property, to the Columbia River. The C-2 zone allows commercial uses subject to site plan review. To address code requirements that the “bulk and scale” of proposed development be “compatible” with buildings in the surrounding area, Wal-Mart proposed various architectural features, earth-tone building materials, landscaping and similar design elements to minimize the visual impact on surrounding properties. The City of Hood River argued that the county compatibility standard requires the county to determine that the proposed 186,685-foot structure is compatible in size with other buildings in the area. The city pointed out that the largest existing commercial use in the area is the existing 72,000-square foot Wal-Mart store to the east of the property. In December 2, 2003, the planning commission approved the application, ruling that the county compatibility standard was satisfied by minimizing visual impacts and did not require that the proposed structure be compatible in size with other buildings in the area. But the county board of commissioners elected to review the planning commission decision, and in January of 2004 reversed the planning commission decision. The Board rejected the planning commission interpretation of the compatibility standard, and agreed with the city that that standard requires the county to compare the size of the proposed building to the size of buildings in the surrounding area. Because the proposed building was two to three times larger than any building in the area, the board concluded that Wal-Mart failed to comply with the compatibility standard. Wal-Mart then appealed to the LUBA, charging that the board of commissioners misconstrued the county’s compatibility standard to require a comparison of the size of the proposed building with that of other existing buildings in the area. Wal-Mart repeated that visual compatibility, satisfied by measures that minimize the visual impacts of the proposed building, met the zoning requirements. Before the LUBA, the city argued that the county code was not limited to evaluation of visual compatibility and that the county was required to evaluate whether the “height, bulk and scale” of proposed structures were compatible with surrounding buildings. It is simply impossible, the city argued, to perform that evaluation without comparing the size of the proposed structures with existing structures in the area. The LUBA agreed with the city that the county code explicitly requires that the “height, bulk and scale” of proposed buildings must be compatible with other buildings in the surrounding area, and that “the requirement that the bulk and scale of the proposed building be “compatible” with buildings in the area clearly requires some comparison with the bulk and scale of existing buildings in the area. The county’s interpretation—that evaluation of height, bulk and scale is not limited to considering the visual impacts of the proposed building, but includes also comparison of bulk and scale — was affirmed.
This case proves you can beat Wal-Mart on the size issue. In the Hood County zoning code, compatibility means “the height, bulk and scale of buildings shall be compatible with the site and buildings in the surrounding area. Use of materials should promote harmony with surrounding structures and sites.” The Board of Commissioners found that the height, bulk, and scale of the proposed building could not be made compatible with the site and other buildings in the identified surrounding area through visual means only and that dimensional aspects of a building must also be taken into consideration. The Board found “that the bulk and scale of the building was disproportionately larger than, and therefore incompatible with, all other buildings within the identified surrounding area, thereby conflicting with the plain language of the criterion…The bulk size of the proposed building is over 3 times the bulk size and 2.5 times the scale size of the largest building within the defined surrounding area. The Board found that the difference between the bulk and scale of the proposed building and other buildings in the defined surrounding area is substantial and will, therefore, cause it to be incompatible with other buildings in the surrounding area. Based on the above, the Board finds that the design element modifications are not sufficient to meet the compatibility criteria with respect to bulk and scale size. This is another victory for the Citizens for Responsible Growth. For a copy of the LUBA decision, go to http://luba.state.or.us/pdf/2004/july04/04021.htm. For earlier stories on this topic, search this database by “Hood River”.
