Living Strong, LLC v. City of Eugene

In 1988, the city approved a site plan for a department store in the Community Commercial (C-2) zone. In 2001, the city amended its site design review standards. In 2019, the department store ceased operations. In 2020, intervenor applied to modify the 1988 site plan by replacing a greenhouse area with a bottle redemption center and reconfiguring a loading dock in order to establish a grocery store. A hearings officer approved the application. This appeal followed.

There were two petitioners, each of which filed a petition for review. The city and intervenor each filed one response brief, responding to both petitions for review, for a total of two response briefs. Each petitioner then filed two reply briefs, one replying to the city’s response brief and one replying to intervenor’s response brief, for a total of four reply briefs. Intervenor argued that, under OAR 661-010-0039, petitioners may not file separate reply briefs to each response brief. Acknowledging that it was somewhat ambiguous, LUBA interpreted OAR 661-010-0039 to allow a petitioner that filed a separate petition for review to file a separate reply brief to each response brief that responds to arguments in that petitioner’s petition for review.

Under Eugene Code (EC) 9.1220, a “legal nonconforming use” is “[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.” Under EC 9.1220(1), when a legal nonconforming use is discontinued for a year, it loses its legal nonconforming use status and must thereafter conform to the current use standards. Petitioners argued that, because more than a year had passed between when the department store ceased operations and when intervenor submitted its application, the department store lost its legal nonconforming use status and intervenor’s application was required to comply with the amended site design review standards. LUBA agreed with respondents that there is a difference between nonconforming uses (i.e., uses which no longer comply with the city’s use standards, such as which uses are allowed in which zones) and nonconforming structures (i.e., structures that no longer comply with the city’s development standards, such as site design review), and that the fact that a structure is nonconforming does not make the use of that structure nonconforming. Because General Merchandise (GM) uses such as the department store and the proposed grocery store were allowed outright in the C-2 zone when the department store was approved, and because GM uses were still allowed outright in the C-2 zone when the department store ceased operations and when intervenor submitted its application, LUBA agreed with respondents that the department store was not a nonconforming use and that petitioners’ arguments provided no basis for reversal or remand.

Petitioners also argued that, even if the department store was not a discontinued nonconforming use, intervenor’s application was still required to comply with the amended site design review standards because the 1988 site plan expired when the department store ceased operations. LUBA agreed with respondents that the 1988 site plan approved the design of the department store building, not the use of the building for a department store, and that the site plan therefore did not expire when the department store ceased operations.

Under EC 9.8670(1), site plan modification requires a traffic impact analysis when “[t]he development will generate 100 or more vehicle trips during any peak hour.” Given the dictionary definition of the term “develop,” petitioners argued that “[t]he development” in EC 9.8670 included all development depicted by the modified site plan. Because the proposed grocery store would have generated sufficient vehicle trips, petitioners argued that intervenor was required but failed to provide a traffic impact analysis. LUBA agreed with respondents that the hearings officer correctly interpreted “[t]he development” in EC 9.8670(1) to mean only new development proposed by the modification (i.e., the bottle redemption center and the reconfigured loading dock), not the remainder of the existing development. Because petitioners did not argue that the bottle redemption center and the reconfigured loading dock would themselves generate sufficient traffic, LUBA denied these assignments of error.

Under EC 9.8455(1), site plan modifications must be “consistent with the conditions of the original approval.” Under condition (g) of the 1988 site plan approval, “[a]ll freight loading activities shall occur on-site with no maneuvering needed to require use of the public right of way.” Because delivery trucks would have been required to swing into the center lane of an adjacent road in order to access the subject property, petitioners argued that the decision violated EC 9.8455(1). Petitioners’ testimony to the hearings officer acknowledged that delivery trucks would need to swing into the center lane of the adjacent road in order to access the subject property. However, because their testimony took issue with maneuvering at different locations, LUBA concluded that allowing petitioners to raise that issue for the first time on appeal would have amounted to an “unfair surprise” to the city and the parties. LUBA therefore agreed with respondents that petitioners’ argument had been waived under ORS 197.763(1).

Petitioners made additional arguments that the decision failed to comply with other conditions of the original approval and EC provisions. However, because petitioners did not actually challenge the hearings officer’s findings of compliance with those conditions and provisions, LUBA concluded that those arguments provided no basis for reversal or remand. The city’s decision was therefore AFFIRMED.