By JASON COX
Of the Keizertimes
Keizer voters will be asked March 8 whether to ban retail buildings larger than 65,000 square feet outside the currently-developed portion of Keizer Station.
Thus we have some Big Questions. This week we answer questions about how the measure would be applied if passed, what it would stop – and what it wouldn’t.
While nothing’s set in stone, we consulted land use experts with the Department of Land Conservation and Development (DLCD), the city of Keizer along with private practice attorneys who have represented both developers and conservationists.
This week, we answer practical questions about the measure if it passed. You’ll see words like “probably.” These are there because, as City of Keizer Senior Planner Sam Litke put it, there’s no single body that can answer these questions before the fact.
“Usually you have to go to a judge” once questions arise, Litke said.
Q: If it passes, would it only ban grocery stores larger than 65,000 square feet only?
A: No. Any building defined as retail would be barred outside Keizer Station’s Area A.
Q: What is retail?
A: To define retail, multiple land use experts say, we start with the definition within Keizer’s development code.
“My interpretation of the law (Keizer’s code) would be the first place looking for a definition of retail,” said Steve Oulman, regional representative for DLCD. “The process of selling to the consumer for direct consumption and not for resale.”
“We would look at our zoning code for what type of business uses would fall under that category, which is pretty wide open,” said Sam Litke, the city’s senior planner.
The city development code language is based off the Standard Industrial Classification system. Nate Brown, the city’s community development director, said it includes businesses like “paint stores, nurseries, lawn and garden supply, mobile home dealers, department stores, variety stores, general merchandise stores, food, automotive dealers, apparel and accessory stores, home improvement, furniture, furnishings and equipment stores, eating and drinking places and miscellaneous retail stores” like drugstores and liquor stores.
Ultimately, classification would be decided by the city.
“If you’re looking at an application the city gets to decide,” said Ed Sullivan, a Portland attorney with Garvey Schubert Barrer. “If the interpretation is plausible the city’s probably going to win.”
Corinne Sherton, a Salem-based attorney who served as a Land Use Board of Appeals referee from 1987-1995, agreed the city has “a lot of discretion.”
Q: Would strip malls bigger than the cap be barred outside Area A?
A: As you saw from the previous listing, multiple businesses can be within one building (i.e. a strip mall, or an enclosed mall) with total square footage more than 65,000 square feet.
Other than “retail,” the measure doesn’t get into specific uses. Say you had a proposed strip mall with a grocery store, an insurance office, dry cleaners and some sort of corporate office.
Sullivan believes new buildings involving any kind of retail trade would be barred outside Area A.
“It talks about no retail building,” Sullivan said. I think you’d look at the gross amount of square footage in the building, regardless of individual uses.”
Oulman is not so sure.
“As I look at the language there are those sorts of ambiguities. Unless they define as part of their measure what retail means, I think there’s room for interpretation there. … These are the sorts of things courts argue about.”
Sherton also thinks there’s room for interpretation here, depending on the percentage of a building dedicated to a particular use.
Q: What buildings in Keizer are bigger than 65,000 square feet?
A: While we didn’t take a tape measure to every structure in town, here’s how some of Keizer’s biggest buildings measure up:
• Target – 123,752
• Lowes – 134,554
• Keizer Station – 171,773 (Staples, future Ulta & Marshalls site)
• Safeway – 48,636
• Keizer Village – 79,426 (Platinum Sports & Fitness, Goodwill, On the Rocs, etc.)
• Bi-Mart – 30,552
Q: What happens to buildings already here, outside Area A, larger than 65,000 square feet?
A: Nothing. These were here before the measure would pass. Oulman explained it like this: “I have an old house in Salem. It may not meet the current setbacks, but I’m entitled to use my property unless I propose to make changes to add onto my house and things like that, in which case I may have to meet current setbacks as opposed to when it was built way back when.”
Q: Could a property owner outside Area A expand their building to be larger than 65,000 square feet?
A: If it was for retail purposes, probably not. See Oulman’s above answer, and this tidbit from Sullivan:
“If the amendment were in place, you probably could not expand. Again, all this depends on how it’s worded, but as a general proposition that’s what I think.”
Brown added Keizer’s development code offers some flexibility on expanding non-conforming structures “as long as (the expansion) can conform. … I would say, at this point, that the cap would still apply.”
Q: Could a property owner tear down a current structure and build one larger than 65,000 square feet?
A: Most likely not.
“If you engage in an action, as you say, that tears down the structure and proposes a larger one, and there is a ban or other prohibition or regulation on the size, I would assert you’re required to follow the new regulation,” Oulman said. “The reason you would be required to do so is you’ve chosen to engage in a new activity, essentially. You’re proposing a new use unrelated to what you had, i.e. you’re no longer grandfathered.”