Living Strong, LLC v. City of Eugene, LUBA No. 2021-005

• Decision Date: 30 April 2021
• Docket Number: LUBA No. 2021-006,LUBA No. 2021-005
• Parties: LIVING STRONG, LLC, EUGENE MOVING FORWARD, LLC, ROBERT STEIN, and PATRICIA BARAJAS, Petitioners, v. CITY OF EUGENE, Respondent, and WINCO FOODS, LLC, Intervenor-Respondent.
• Court: Oregon Land Use Board of Appeals

LIVING STRONG, LLC, EUGENE MOVING FORWARD, LLC,ROBERT STEIN, and PATRICIA BARAJAS, Petitioners, v. CITY OF EUGENE, Respondent,andWINCO FOODS, LLC, Intervenor-Respondent.

LUBA No. 2021-005

LUBA No. 2021-006

LAND USE BOARD OF APPEALS OF THE STATE OF OREGON

April 30, 2021

FINAL OPINION AND ORDER

Appeal from City of Eugene.

Bill Kloos filed a petition for review and two reply briefs and argued on behalf of petitioner Living Strong, LLC.

Sean T. Malone filed a petition for review and two reply briefs and argued on behalf of petitioners Eugene Moving Forward, LLC, Robert Stein and Patricia Barajas.

Lauren A. Sommers filed a response brief and argued on behalf of respondent.

Kelly S. Hossaini and Steven G. Liday filed a response brief and argued on behalf of intervenor-respondent. Also on the brief was Miller Nash Graham & Dunn LLP.

RYAN, Board Member; RUDD, Board Chair; ZAMUDIO, Board Member, participated in the decision.

You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Ryan.

NATURE OF THE DECISION

Petitioners appeal a hearings officer decision approving an application for modification of a 1988 site review decision and site plan.

MOTION TO INTERVENE

WinCo Foods, LLC (intervenor), the applicant below, moves to intervene on the side of the city. The motion is granted.

REPLY BRIEF

Living Strong LLC (Living Strong) is the petitioner in LUBA No. 2021-005. Petitioners Eugene Moving Forward, LLC et al (EMF) are the petitioners in LUBA No. 2021-006. Living Strong and EMF (together, petitioners) each filed a petition for review. The city filed a single response brief that responded to the assignments of error in each petition for review. Intervenor also filed a single response brief that responded to the assignments of error in each petition for review. Living Strong filed a reply brief to reply to arguments in the city's response brief, and a reply brief to respond to arguments in intervenor's response brief. EMF did the same, resulting in a total of four reply briefs.

OAR 661-010-0039 provides in relevant part:

"A reply brief shall be permitted. A reply brief shall be filed together with four copies within seven days of the date the respondent's brief is filed. A reply brief shall be confined to responses to arguments in the respondent's brief, state agency brief, or amicus brief, but shall not include new assignments of error or advance new bases for reversal or remand."

Intervenor objects that OAR 661-010-0039 does not permit each petitioner to file a separate reply brief to respond to each response brief, and moves for LUBA to strike one of the reply briefs filed by each petitioner. Living Strong and EMF each respond to the motion and argue that the reply briefs are allowed under OAR 661-010-0039.

We agree with petitioners. While OAR 661-010-0039 is somewhat ambiguous, OAR 661-010-0039 allows a petitioner to file "a reply brief" that is confined to responses to arguments in "the respondent's brief." Where there is more than one "respondent's brief" filed, we interpret OAR 661-010-0039 to allow any petitioner who filed a separate petition for review to file a reply brief to respond to arguments in each respondent's brief that is filed in response to that petition for review.

The reply briefs are allowed.

FACTS

The subject approximately seven-acre property is located within a 15-acre shopping center, and is zoned Community Commercial (C-2) with a Site Review (SR) Overlay. The C-2 zone allows "General Merchandise (includes supermarket and department store)" as an outright permitted use. Eugene Code (EC) Table 9.2160. The subject property, and the shopping center, are located east of Coburg Road, south of Crescent Avenue, and north of Chad Drive. To the east of the subject property is a medical office building that shares a driveway with the subject property. To the north of the shopping center, north of Crescent Avenue,is an apartment complex. To the west of that development is residential single-family development.

In 1988, the city approved a site plan review application and a site plan (1988 Site Plan) for an approximately 100,000 square foot ShopKo department store on the subject property. We discuss the 1988 Site Plan in more detail below in our resolution of the assignments of error.

The ShopKo store ceased operations in 2019. In 2020 intervenor, a supermarket operator, applied to the city to modify the 1988 Site Plan to alter the existing building in two ways. First, intervenor proposed to replace an existing greenhouse area with a 266 square foot bottle redemption center. Second, intervenor proposed to demolish the northeast corner of the building to reconfigure and reconstruct a rear loading dock and waste storage area. Both changes would result in a smaller building square footage of approximately 95,000 square feet.

The planning director approved the modification application with conditions, and petitioners appealed the decision to the hearings officer. The hearings officer held a hearing on the appeal and affirmed the planning director's decision with the same conditions. This appeal followed.

STANDARD OF REVIEW

The challenged decision is a limited land use decision. ORS 197.015(12)(a).¹ ORS 197.828 provides LUBA's standard of review of a limited land use decision:

"(1) The Land Use Board of Appeals shall either reverse, remand or affirm a limited land use decision on review.

"(2) The board shall reverse or remand a limited land use decision if:

"(a) The decision is not supported by substantial evidence in the record. The existence of evidence in the record supporting a different decision shall not be grounds for reversal or remand if there is evidence in the record to support the final decision;

"(b) The decision does not comply with applicable provisions of the land use regulations;"(c) The decision is:

"(A) Outside the scope of authority of the decision maker; or

"(B) Unconstitutional; or

"(d) The local government committed a procedural error which prejudiced the substantial rights of the petitioner."

LIVING STRONG THIRD ASSIGNMENT OF ERROR/EMF FOURTH ASSIGNMENT OF ERROR

These assignments of error present nearly identical arguments and we address them together here. In EMF's fourth assignment of error and in Living Strong's third assignment of error, we understand petitioners to argue that the decision "does not comply with EC 9.1220." ORS 197.828(2)(b). EC 9.1220, "Legal Nonconforming Uses," describes a nonconforming use as "[a] use that was legally established on a particular development site but that no longer complies with the allowed uses or the standards for those uses in this land use code is considered a legal nonconforming use." EC 9.1220(1) provides that if a legal nonconforming use is discontinued for more than 365 days, it loses its legal nonconforming use status and must conform to the applicable provisions of the EC.

Petitioners argue that (1) the 1988 Site Plan approved ShopKo's use of the subject property for a department store; (2) the ShopKo use became a nonconforming use in 2001 when the city amended the provisions of the EC that applied to site review, now at EC 9.4400 to 9.4410; and (3) ShopKo'snonconforming use of the subject property was discontinued for more than one year after ShopKo ceased operations in 2019. Accordingly, petitioners argue, the nonconforming use and the 1988 Site Plan terminated, and WinCo's use of the property must satisfy the site review criteria through a new site review application.

The hearings officer found that the use of the subject property for a ShopKo department store was an allowed use in the C-2 zone when the city approved the 1988 Site Plan, and that the 1988 Site Plan did not approve that allowed use:

"Both EMF and [Living Strong] repeatedly assert that the /SR overlay 'approved' the Shopko use. It did not. The /SR overlay does [not] approve any use; it neither authorizes nor restricts which uses are allowed in the underlying zone. Rather, by its terms, the /SR overlay addresses how that allowed development occurs. Changes to the /SR overlay zone do not and cannot make uses allowed in the underlying zone non-conforming." Record 11.

The hearings officer also rejected petitioners' argument that the ShopKo use became nonconforming when the city amended the site review provisions of the EC in 2001, or when the city amended other unnamed provisions of the EC:

"Appellants also appear to argue that changes to the C-2 zone itself over time somehow made the use allowed in the C-2 zone in 1988 a non-conforming use in the current C-2 zone. While acknowledging that as a 'department store' Shopko was allowed in the C-2 zone in 1988 and continued to be allowed as a 'department store' until its closing in 2019, appellants appear to argue that because of changes to 'standards for the use' it became nonconforming.

"Appellants do not establish (or even argue) that any C-2 zone usestandards have changed over time to render Shopko a nonconforming use. Rather, throughout their arguments, appellants reference changes to the development standards. Changes in development standards, however, are not equivalent to changes in use standards, and changes to development standards do not render a permitted use non-conforming. * * *

"Appellants have not identified any C-2 zone use standards that have changed since Shopko originally established a C-2 retail store at this site. In fact, no changes in the C-2 zone use standards rendered the store nonconforming. Shopko was not a nonconforming use when it discontinued its operations in 2019. Thus, EC 9.1220(1) does not apply to the property and does not preclude WinCo from seeking a Modification to the /SR Overlay that was approved for the Shopko C-2 allowed use." Record 11 (emphasis in original; footnote omitted).

In their petitions for review, petitioners essentially renew the same arguments that the hearings officer rejected in the decision.

Intervenor and the city (respondents)...