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Wal-Mart may face difficult time in Cedar Mill appeal

Company has a spotty track record, and a few bright spots, on LUBA challenges

Wal-Mart could face long odds if it decides to appeal last week's Beaverton City Council decision rejecting its proposed Cedar Mill store.

During the past three years, the Bentonville, Ark., retail giant hasn't fared very well in appeals of adverse decisions to the state Land Use Board of Appeals.

In fact, since 2003, the company has appealed six land-use decisions by cities and counties and been on the winning side a couple of times.

In one case, an appeal of a Medford project, LUBA sent the issue back to the city for more work. The Southern Oregon city then approved construction of a new Wal-Mart store.

Another bright spot for the retail giant involved a planned store in Oregon City, which originally was rejected by the city. LUBA sent the issue back to Oregon City, which approved the new store.

Opponents of that project are appealing the city's decision to the state land-use board.

In a few other cases, however, Wal-Mart has had a difficult time overcoming the original rejection of its plans in most of the state.

'No one does better or worse at LUBA just because of who they are,' said Ethan Seltzer, director of the Institute of Portland Metropolitan Studies at Portland State University. 'It doesn't matter if you're Wal-Mart or someone else. That has nothing to do with winning at LUBA. It's not a popularity contest.'

LUBA, the state's land-use arbiter for people who feel a city or county has misapplied its standards for specific developments, deals mostly with the issue of proper application of comprehensive land-use plans, Seltzer said. LUBA will be more interested in whether Beaverton's City Council followed its land-use rules in the Aug. 7 decision, rather than if people in Cedar Mill dislike Wal-Mart, he said.

And yet, Wal-Mart appeals have had little success at LUBA.

'Perhaps it's because what they are proposing doesn't fit with the city's plans,' Seltzer said.

Looking at findings

City councilors adopted Monday night the 25-page final order rejecting plans for the Town Square Too development on 9.28 acres at the busy intersection of Southwest Cedar Hills Boulevard and Barnes Road.

The project, by developer PacLand of Milwaukie, would have included a 152,308-square-foot Wal-Mart store and two retail/commercial buildings adjacent to the store.

Jennifer Holder, Wal-Mart's senior manager of public affairs for the West, said the company was still considering its options.

'Right now we're taking a look at the city's findings and we'll make a decision about what action to take,' Holder said.

Portland attorney Greg Hathaway, who represented Wal-Mart, said the company had only received the city's findings Wednesday and was studying the decision 'to determine the legal errors that have been made.'

'This is a very significant project for Wal-Mart,' Hathaway said. 'Not only do we disagree with the city, but we also think it's legally indefensible. We will look at that as part of the next step, which would be an appeal to LUBA.'

Beaverton's Board of Design Review approved the project June 1 after two days of hearings and hours of testimony by the developer and opponents.

Members of the anti-Wal-Mart citizens group, Save Cedar Mill, appealed the board's decision to the City Council, which held two evenings of hearings July 10 and 11 and sifted through an 8,000-page staff report that included a recommendation that the city approve the project with 76 conditions.

Among those was a requirement that PacLand pay for an estimated $2.2 million in improvements to the Cedar Hills Boulevard/Barnes Road intersection to handle the expected traffic from the store.

The project would have widened the intersection to eight lanes in all directions, with bicycle and pedestrian lanes.

Opponents argued that the traffic plan was inadequate to handle all the vehicles expected at the store, and that would travel through the area once the nearly 280-acre Peterkort property was developed.

City councilors agreed, saying PacLand's plan could jam up future developments. The council voted unanimously to uphold the appeal, forcing Wal-Mart to go to LUBA for satisfaction.

A notice of findings was mailed this week, starting the clock on a possible LUBA appeal. Wal-Mart and PacLand have 21 days after the notice is mailed to appeal the city's decision.

In the most recent decision that went against Wal-Mart, LUBA upheld in late July a city of Bend rejection of the company's plan to build a superstore on about 30 acres inside the city's 'Golden Triangle' business district stretching along Highway 97.

Wal-Mart wanted to build the store and create a commercial subdivision on the property. Bend said no, and LUBA affirmed the city's decision.

Bend's citizen group, Our Community First, led the charge against the store.

In June 2005, LUBA also affirmed a ruling by the city of Central Point that blocked plans for a 203,091-square-foot Wal-Mart on 21.59 acres in the city.

The citizens group Central Point First fought the store.

In July 2004, LUBA upheld a decision by Hood River County to block construction of a 186,685-square-foot Wal-Mart on 16 acres. Citizens for Responsible Growth fought that store.

One of the few bright spots came in March 2005 when LUBA sent a Wal-Mart-related land-use decision back to the city of Medford for more work. The city had rejected plans for a 206,533-square-foot Wal-Mart store on 20.51 acres along Highway 99. Wal-Mart appealed and LUBA agreed with some of its findings, requiring the city to take another look at the project.