Analysis: Why the city appealed LUBA’s big box remand

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Reporter’s Notebook is a new feature in the Keizertimes. Here our writers and editors will offer a glimpse behind the headlines to stories and issues bubbling just below the surface.

Keep Keizer Livable noted in their press release last week Mayor Lore Christopher’s remarks to the Statesman Journal that a Land Use Board of Appeals remand won’t stop the Keizer Station Area C project.

The mayor instead characterized the remand as “fixing the project, so the project can go forward.”

So why ask the Court of Appeals to overturn LUBA’s decision? In part, because the city could be stuck between a rock and a big box should it have to reconsider the Area C land use decision with the constraints LUBA put in place.

Note this analysis doesn’t take into consideration LUBA’s ruling that the traffic study was inadequate or the general legal principle the city is arguing: The people elected by the citizens have the right to interpret the city’s own code.

The city council in 2008 amended its mixed use zoning code to allow a store the size of what’s proposed in Area C. Anything above 80,000 square feet had to have a corresponding amount of vertical mixed use properties. Development of mixed use has been a key selling point; the project’s supporters have said the proposed medical offices and apartments will breathe economic vitality into the immediate area and possibly jump-start the medical corridor Christopher wants to develop near Exit 260.

When the land use decision to actually approve the large grocery store (Walmart?), offices and apartments came around developers said the project wasn’t viable if they couldn’t open the big box store before the rest of the development was ready to go. City staff had initially proposed a “concurrency” requirement that certificates of occupancy had to be issued at the same time.

Councilors substantially changed that concurrency requirement, saying loan guarantees and completed foundations were enough to guarantee that the mixed use portion would get done eventually – in the city’s words, constructed.

Then LUBA said the word “constructed” generally means completed, not commenced or in progress – meaning one possibly couldn’t open without the other.

While Walmart garners varying level of love among individual councilors, the idea of Area C sitting undeveloped for years scares many in city hall to death.

It’s seen as a critical spur for future development in the area, not to mention tax revenue in tough times.

So if forced to abide by LUBA’s conditions councilors face two unsavory choices: Force developers into opening both at the same time – a situation co-developer Alan Roodhouse has said could doom the project  – or remove portions of the code requiring mixed use development, which was key to selling the project to a divided public in the first place.

They took the third option: Ask the courts to reconsider.

- Jason Cox

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