By JASON COX
Of the Keizertimes
The Oregon Court of Appeals upheld the state land use board’s ruling that the city must reconsider its decision allowing the next phase of Keizer Station.
The decision from the Land Use Board of Appeals was affirmed without opinion on Wednesday, November 30.
It may further delay a project likely to include Walmart along with possible offices and apartments. It’s come to be known as Area C. LUBA referees found the traffic study used in the Area C master plan was inadequate and that the city’s code requires the planned large store to be built at the same time as surrounding offices and apartments.
“Of course we’re very happy about it, and just feel like it’s another affirmation that the issues we identified and testified about during the city council hearings were real and valid issues,” said Jane Mulholland, a co-founder of citizen group Keep Keizer Livable, founded to fight the project.
She and a host of others who testified during the planning process said the planned development at Chemawa Road NE and Lockhaven Drive NE would fundamentally alter the character of the surrounding residential neighborhood, adding traffic and crime while possibly hurting other businesses in Keizer.
Appeal options for the city and developers were not immediately clear, but Ken Helm, attorney for citizen group Keep Keizer Livable, said it would be legally difficult for the city and developer to triumph in court.
“You have to set forth good reasons for them to do so,” Helm said. “Those reasons typically go beyond simply saying, well, we want you to review this decision because we don’t agree with it.”
Nate Brown, the city’s community development director, acknowledged that chances of prevailing in an appeal could be slim.
“We have a couple of options: We can take the remand and basically implement what LUBA directed us to do, and then that would stand as the decision,” Brown said.
Developers Alan Roodhouse and Chuck Sides didn’t return phone calls seeking comment. Brown said the developers have the option to either create a new application – in essence, start over – or attempt to complete the development under the guidelines imposed by LUBA.
One root of LUBA’s decision harkens back to a council decision made in early 2008, when councilors modified the mixed use section of city development code to allow a store larger than 10,000 square feet; indeed, stores up to 120,000 square feet were allowed after the change. Councilors required that a store bigger than 80,000 square feet could be built only with a corresponding amount of mixed use structures; those could be anything from office space to retail to apartments.
But LUBA referees ruled a condition councilors later approved – one that required construction only begin on surrounding buildings before the large-format store can open – contradicts the intent the same body wrote into the code in 2008.
“If the city and the applicant here want to move forward,” Helm said, “they’ll need to figure out how to comply with the zoning code as it’s written, or they may decide to amend the zoning code itself to clarify what they want to mean by requiring concurrent development of the large-format store and other mixed uses.”
The decision also states the city erred when opting not to use local traffic data in making its decision. The city and developer argued the city can waive or modify required aspects of a traffic impact analysis. But LUBA referees felt the city failed to explain why staff used traffic data from the Traffic Engineer’s Trip Generation Manual that was for a building smaller than the one proposed, and opted not to use local traffic statistics.