By JASON COX
Of the Keizertimes
It’s likely the big box retail restriction measure wouldn’t stop a planned discount grocer in Keizer Station’s Area C, multiple land use experts told the Keizertimes.
There’s always the possibility a judge would disagree, and opponents of the planned store may find other legal avenues to challenge the site plan. But experts say the state’s goalposting statute would likely preclude the restrictions should Keizer voters choose to enact them.
Kevin Hohnbaum, a co-founder of Keep Keizer Livable, said this in an e-mail Tuesday: “After quite a bit of research and discussion with legal counsel, we’re confident that, when passed, the measure will impact the development of Area C.”
He declined to offer specifics, but said the measure isn’t just about that development.
Think of the goalposting rule like this, said Community Development Director Nate Brown: “An applicant has the right to rely on the set of regulations in place at the time of application.”
“You have uses that are … vested regardless of how the law has changed,” added Steve Oulman, a regional representative for the Oregon Department of Land Use and Conservation.
When a building application is filed, said Portland attorney Ed Sullivan, city planners have 30 days to tell an applicant whether the application is complete.
If it’s not complete, the applicant has 180 days to make it complete in the eyes of city planners, or can choose to have it be considered by the governing body – in our case, the Keizer City Council – despite city staff’s opinion.
Corinne Sherton, a Salem-based land use attorney who served as a Land Use Board of Appeals referee from 1987-1995, said she “doesn’t see any way that measure would affect the application.”
Because the application was filed before the big box restrictions were voted on, multiple land use experts tell us it’s likely a court – or the state Land Use Board of Appeals – would find the ballot measure’s new rules wouldn’t apply to the Area C application.
But Mark Shipman, also a Salem-based land use attorney, said the impact of a voter-approved ballot measure rather than a council-enacted change could be more profound.
“I don’t know if that will have different import than would an action by the city council of Keizer,” he said. “That’s an interesting question … and I don’t think it’s a question that can be easily answered.”
Hohnbaum said the measure is about more than the discount grocer – “it’s about giving Keizer residents a voice in what they’d like to see their city look like in the future.
“When the City Council gutted the definition of mixed use in the Keizer Development Code in 2008 to allow for unlimited buildings sizes, it impacted the entire community. It also laid to waste all of the planning and discussion that went into creating the Keizer Station Plan. The ballot measure works to restore what citizens said they wanted Keizer to look like for their kids and grandkids,” Hohnbaum said.
The proposed change – which would restrict retail buildings larger than 65,000 square feet except for the currently-developed portion of Keizer Station – is to Keizer’s development code. Proponents may have had a stronger case had they chosen to amend the city charter, Sullivan said.