HomeMy WebLinkAboutApplicant’s Appeal ResponseMILLER
NASH GRAHAM
&DUNNLLP
ATTORNEYS AT LAW LAW
Steven G.Liday
steven.liday@millernash.com
503.205.2362 direct line
U.S. Bancorp Tower
111 S.W. Fifth Avenue, Suite 3400
Portland, Oregon 97204
OFFICE 503.224.5858
FA% 503.224.0155
October 21, 2020
BY FIRST-CLASS MAIL AND E-MAIL
ngioello@eugene-or.gou
Mr. Nicholas R. Gioello, M. Adm.
Associate Planner
City of Eugene
Planning & Development
99 W. Tenth Avenue
Eugene, Oregon 97401
Subject: WinCo Foods, LLC's ("WinCo's"), Response to Appeal of Planning
Director's Approval of MDA 20-5
Dear Mr. Gioello:
Enclosed is WinCo's Response to Appellants' Statements of Alleged Errors.
The exhibits for the Response are available for download at the website:
https:.//mngd.sharefile.com/share/view/sAb6ed4dod48412cb. Two copies of the letter
and exhibits will also be sent by first-class mail. We request that one of the copies be
provided to the hearing official.
Please contact me with any questions, requests for additional information,
or if we can otherwise be of assistance to the City in this matter.
Regards,
Portland, OR
Seattle, WA
Vancouver, WA
Long Beach, CA
Steven G. Liday
MILLERNASH.COM 4811-4300-7183.1
BEFORE THE CITY OF EUGENE
HEARINGS OFFICIAL
APPEAL OF "APPROVAL OF A
MODIFICATION TO AN APPROVED
SITE REVIEW FOR WINCO
(MDA 20-5)"
1. APPLICATION HISTORY.
WINCO FOODS, LLC'S RESPONSE TO
APPELLANTS' STATEMENTS OF ALLEGED
ERRORS
In 2019, WinCo Foods, LLC ("WinCo"), entered into a long-term lease to open a
new store in the existing retail building on the property at 2815 Chad Drive, Eugene, Oregon
(the "Property"). This site is part of an approximately 15-acre shopping center located off
Coburg Road, just north of the Beltline Highway, that already includes the large retail stores
PetSmart, Office Depot, and Video Only, as well as several other businesses.'
The City of Eugene (the "City") correctly determined that the opening of the store
does not require land use review because a "supermarket" is an outright allowed use in the
Property's C-2 zoning and the conversion from the previous department store is not a change in
use because both are in the same use category, "general merchandise." Without a need for
approval of the use or a change in use, the opening of the store cannot be considered
"development," and thus, the new store does not require City approval.
1 Further information and pictures of the Property are set forth in Exhibit I
Page I - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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Prior to the store's opening, WinCo is remodeling and upgrading the vacant
building and Property site. The City has properly concluded that the remodel project does not
trigger the need for a traffic impact assessment or site review because the minor improvements
will not cause an increase in traffic volume and do not include the development of vacant land or
an expansion of the existing building's square footage. Accordingly, WinCo was allowed to
submit plans for its first set of tenant improvements on April 14, 2020. The City determined that
these plans complied with the relevant development standards and approved issuance of building
permits on July 8, 2020.2
There are, however, two planned alterations that require modification of the
existing 1988 site review plans approved during the initial development of the Property as a
shopping center, application SR 88-113 (the "1988 Plans"). These two improvements are the
conversion of the greenhouse and garden supply area to a small bottle-redemption building and
the reconfiguration of the loading dock at the existing building's northeast corner.
To allow for these improvements, WinCo filed the application at issue (designated
as MDA 20-5) on April 22, 2020, requesting minor modification of the 1988 Plans (the
"Application"). WinCo submitted a narrative with the Application demonstrating its compliance
with the two applicable criteria contained in Eugene Code (EC) 9.8455, which are that (1) the
proposed modifications are consistent with the conditions of approval for the site review plans,
2 The building permit details report, printed from the City's online eBuild system, is attached as Exhibit 2, and also
available online athttps://pdd.eugene-or.gov/Buildin~4Permits/PermitDetails?log=20-02231-01.
3 The SR 88-11 written approval, Site Review Agreement, and final 1988 Plans are attached as Exhibit 3.
Page 2 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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and (2) the modifications will not result in significant changes to the appearance, use, and
impacts of the site.'
On September 30, 2020, the City's planning director (the "Director") approved the
Application, finding that: (1) both modifications complied with the 1998 Plans' conditions of
approval; (2) the loading dock reconfiguration will improve the safety, efficiency, and
appearance of the site, as well as lessen the dock's impacts on neighboring properties through
better screening and improved landscaping; and (3) the conversion of the greenhouse and lawn
area to a 256-square-foot bottle redemption center will have no meaningful bearing on the
appearance, use, or impacts of the large retail Property, especially as it is located in a 15-acre
shopping center, within a heavily-developed retail area, and along the major thoroughfare,
Coburg Road (the "Decision" ).5
Two separate appeals of the Decision were filed on October 12, 2020. One was
filed by Bill Kloos, on behalf of Living Strong, LLC ("LSL"), and the other by Sean Malone, on
behalf of Eugene Moving Forward, Robert Stein, and Patricia Barajas (collectively, "EMF"). As
required by EC 9.7605, both appeals were accompanied by a statement of issues, arguing why
the Director's Decision was purportedly wrong.6
4 The April 17, 2020, narrative is attached as Exhibit 4
5 The Decision is attached as Exhibit 5.
6 It should be noted that the appeal statements do not include all opposition arguments in the appellants' previous
submissions to the City. The appellants have stated that they intend to possibly introduce these and perhaps other
challenges to the Decision later in this appeal. For example, EMF states that "[a]ppellant also reserve the right to
raise new issues on appeal * * * [sic] The hearings official, however, should deny appellants' attempts to
introduce new issues because EC 9.7605(3) plainly states that "[t]he appeal shall include a statement of issues on
appeal and be limited to the issues raised in the appeal." LUBA has found that pursuant to this ordinance, a party is
precluded from relying on issues that were not raised in the statement of appeal, even if raised earlier in the review
process. Sanga v. City ofEugene, LUBA No. 2019-111, 2020 WL 1819709, at *2 (2020) ("Intervenors respond,
initially, that petitioner is precluded from raising the issues * * * because petitioner failed to identify those issues in
his appeal statement. For the reasons set forth below, we agree.") (citation omitted); McKeown v. City ofEugene,
Page 3 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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II. OVERVIEW OF COMMENTS SUBMITTED DURING REVIEW.
The two narrow modifications to the 1988 Plans would seem to be
noncontroversial, and in fact, most of the public comments that have been submitted to the City
are in support of its approval. The appellants, however, have spared no expense in vehemently
challenging the Application. A cursory review of their present appeal and past submissions
show that the appellants are not primarily focused on the two modifications at issue, but
opposing the opening of the store in general.
Obviously, these arguments are outside the scope of the Application and its
review. And because the City's zoning code could not be clearer that the new WinCo
supermarket is an outright allowed and not a change from the previous use, appellants have been
forced to rely on patently meritless (at times, even absurd) arguments. For instance, appellants
have stated in their numerous submissions that:
• An allowed use in the base zone is not actually allowed until it has been
"authorized" in a site review.
• The description of the original development as a "shopping center" in the
1988 site review decision approved a nonconforming use, and thus, rendered the
initial use and all subsequent uses on the Property nonconforming until a new site
review is completed.
• Because all structures on the Property have not been updated to
2020 development standards, every use is nonconforming.
• A site review plan modification triggers an obligation to bring all structures on the
Property up to current code standards.
46 Or LUBA 494, 503, affd 193 Or App 512, 93 P3d 845 (2004) ("However, as we explain below, under the
holding in Miles, petitioners waived the issue * * * because they did not include that issue as one of their bases for
appeal in the appeal form and attached documents that they filed * * * to the hearings official."); see also Miles v.
City of Florence, 190 Or App 500, 509, 79 P3d 382, 387 (2003) ("When such an ordinance limits the local body's
review to the issues so specified, the local appeal body cannot go beyond those issues.").
Page 4 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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A site review modification, regardless of the scope, is not allowed until all facets
of the Property are reexamined for and in compliance with the 1988 plan
specifications, 1988 code standards, and 2020 code standards.
As described below, the advancement of these tangential opposition arguments
has led to a written record of substantive comments that is larger than what would be expected
for the narrow, limited land use Application.
First, appellants submitted comments setting forth several arguments prior to and
after public notice of the Application, including those identified above. WinCo submitted a
response on June 26, 2020 (Exhibit 6). This letter demonstrated: (1) the irrelevant nature of the
appellants' arguments because they were outside the narrow scope of the Application, which
does not relate to the opening of the store or the vast majority of the remodel work, (2) that a site
review overlay or existing site plans do not control the allowed uses of a site, (3) there is no
support for the appellant's claim that the 1988 Plans barred the use of the Property for a
supermarket, (4) the City's nonconforming use code is irrelevant to WinCo's project because a
supermarket is an outright allowed use in the Property's zoning, and (5) there is no code
provision or condition requiring WinCo to make off-site traffic changes as part of the
Application.
At the close of the record, on June 26, 2020, appellants submitted additional
comments that included several new theories. In order to respond to these contentions, WinCo
paused the City's review of the Application. On August 3, 2020, WinCo submitted its second
response to public comments (Exhibit 7), which established that: (1) the 1988 Plans provided for
WinCo delivery trucks to use the access lane to Crescent Avenue for both ingress/egress and
truck maneuvering, (2) a modification of the adjacent property's site review plans was not
Page 5 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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necessary, (3) the reconfigured loading area did not violate the adjacent property's nodal
development overlay, (4) the changes to the loading area were compliant with the
1988 conditions of approval concerning on-site traffic, and (5) the apt comparison for
determining the impact of the plan modifications was with the existing 1988 Plans, not the
alleged operational particulars of the previous use or existing structures.
In addition to the Application and the public comments submitted therefor, there
are other land use applications and substantive submissions relevant to this appeal. This is in
part because WinCo filed an earlier application for its remodel project, prior to the Application
defined herein, on November 21, 2019. Because of a misunderstanding of the City's preliminary
guidance and the lack of knowledge about the substance of the 1988 Plans and approval (WinCo
did not have a copy of the 1988 written decision or the other SR 88-11 documents at the time),
WinCo's first application requested a site review modification that covered work outside the
scope of the 1988 Plans, as well as a request for a traffic impact assessment review. After
WinCo obtained a copy of the 1988 site review file and engaged the assistance of counsel, it
revised its first request to the City to exclude the remodel improvements outside the scope of the
1988 Plans and withdrew its request for a traffic impact assessment review. WinCo submitted a
letter to the City outlining the reasons for these revisions on February 27, 2020 (Exhibit 8).' In
this document, WinCo outlined the narrow scope and limited details in the 1988 Plans, and
explained the two changes in this Application would not generate meaningful traffic, so that a
traffic impact assessment was not required.
This letter is included herewith because it contains helpful background about the 1988 Plans and applicable review.
It should be noted, however, that this analysis concerned a prior application and addressed some issues that are no
longer pertinent.
Page 6 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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When the City communicated its agreement with this analysis and its support for
the corresponding revisions to the 2019 application, WinCo submitted a new narrative on
March 17, 2020 (Exhibit 9). Ultimately, however, after further discussions with the City, WinCo
decided that the proposed changes warranted a new application. The previous application was
withdrawn by WinCo on April 6, 2020, and the Application at issue was subsequently filed.
There is one other set of documents relevant to this appeal. While the Application
was pending, representatives of appellant LSL, filed two of applications requesting "code
interpretations" concerning WinCo's use of the Property, and seeking confirmation of their
arguments already made in opposition to this Application.8 In response, WinCo filed two letters
pointing out that these requests were not allowed by the City's code, and addressing a few of the
opposition arguments therein. The more substantive of WinCo's comments, dated May 7, 2020
(Exhibit 10), was in response to the first of LSL's request for a code interpretation.9 In this letter,
WinCo demonstrated that (1) a site review approval does not authorize or eliminate the allowed
uses in a zone, (2) the 1988 Plans did not in any way restrict the Property's allowed use as a
supermarket, (3) compliance with existing site review plans (like compliance with any other
existing land use approvals) is unrelated to the City's code concerning nonconforming uses, and
(4) structures out of compliance with current development standards are governed by the City's
nonconforming structure code, not the code concerning nonconforming uses. WinCo's other
letter, dated June 1, 2020 (Exhibit 11), responded to LSL's second request for interpretation10 and
s This application review does not require public notice, and LSL did not inform WinCo of their attempt to obtain
land use decisions by the City related to WinCo's Property and its Application.
9 Request for Code Interpretation dated April 30, 2020, submitted by the Law Office of Bill Kloos.
10 Request for Code Interpretation dated May 20, 2020, submitted by Teresa Bishow.
Page 7 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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addressed the latter two points above. Ultimately, the City declined to provide a substantive
response to the first request, and only provided a high-level reference to the relevant code in
response to the second.
III. SUMMARY OF APPLICATION AND APPROVAL
A. Nature of WinCo's Remodel Project.
As mentioned above, WinCo is remodeling and upgrading the vacant building and
Property site prior to opening the new store. The first phase of remodel work, outside the scope
of this Application and already approved for construction by the City, includes alterations to the
interior, updates to the building facade, relocation of the entry doors, construction of a new
bicycle parking shelter, installation of new signage, extension of the storefront sidewalk, parking
lot resurfacing, improvement of the parking lot lighting, and update of the site utilities.
The only two alterations at issue in this Application are:
New Bottle-Redemption Building: To comply with Oregon's Bottle Bill law,
WinCo needs to construct a new sheltered bottle-redemption center in the
northeast portion of the parking lot (in the spot previously designated as a
greenhouse and lawn and garden area in the 1988 Plans).
Reconstruction of the Loading Dock: WinCo intends to improve the rear
loading area by demolishing approximately 6,000 square feet of the northeast
corner of the building and reconfiguring the loading dock and waste-collection
area. This will allow WinCo to construct new CMU block screening walls, cover
the loading docks, widen the entrance to the loading dock area to provide for safer
ingress and egress of delivery trucks, add landscaping, and otherwise improve the
appearance of the loading dock area.
A full description of the proposed improvements and modifications are set forth in
the Application's site review plans.
Page 8 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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B. Scope of the City's Review.
It cannot be emphasized enough that no land use approval is necessary for the
new supermarket to operate at the Property. The site is zoned Community Commercial (C-2),11
and "supermarkets" are designated as an outright allowed use in this zone. 12 Although the
Property has a site review overlay, the site review process is only required for initial
development of a vacant lot or when the total building area on a developed lot will be expanded
by 20 percent or more. EC 9.8430(l). Further, a traffic impact assessment is not required
because the opening of a supermarket is not a "change in use," and, thus, there is no
"development" that could generate additional traffic.
It should be noted that if WinCo chose to forego its improvements of the
Property, it could open its doors tomorrow. The City already made this determination months
ago as part of its review and approval of WinCo's plans for the majority of its remodel
improvements and authorization of building permits therefor.
C. Overview of the 1988 Plans.
The history and nature of the 1988 Plans are discussed at length in WinCo's
previous written narratives, especially in the February 27, 2020, letter explaining the revisions to
the original 2019 application (Exhibit 8). For purposes of responding to the appellants'
allegations of errors, it suffices to say that the written decision for SR 88-11 and the 1988 Plans
are quite limited in their scope and detail. This is likely due to the small number of criteria
applicable to a site review in 1988, as well as the lack of detailed design standards in the zoning
LL Attached as Exhibit 12 is the Property Report for the Property (Tax Lot 1703163201400) from the City Planning
& Development Department's online Eugene Property Explorer application.
12 See Table 9.2160, "General Merchandise (includes supermarket and department store)."
Page 9 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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code at that time. In fact, as recited in the City's SR 88-11 written decision, there were only four
approval standards, which addressed the overall nature and operation of the development. Thus,
as shown in the image below, the 1988 Plans set forth only the building's footprint, access, on-
site traffic flow, parking layout, and the location of a few other basic elements.
Images from the Approved "COBURG CROSSING" Site Plans
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D. Criteria and the Director's Decision.
The criteria for the Application are found in EC 9.8455, titled "Modifications to
Approved Site Review Plans." Pursuant to this section, the "planning director shall approve the
[Application] if it complies with the following criteria:"
"(1) The proposed modification is consistent with the conditions
of the original approval.
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"(2) The proposed modification will result in insignificant changes
in the physical appearance of the development, the use of the site, and impact on
the surrounding properties."
After reviewing the Application materials and the extensive analysis outlined
above, the Director found that these criteria were satisfied. The Director outlined the
13 conditions of approval in the SR 88-11 decision and found that the two modifications to the
1988 Plans complied with each. (Decision at 7-11.) In regard to the first part of the second
criterion, the Director found that "[t]he proposed project will result in insignificant changes to
the physical appearance of the development site for commercial purposes" because:
• "[I]t will still appear as a large retail commercial development with a building of
the same height, basic shape and configuration with parking in the front of the
building and a freight and loading area in the rear of the building."
"The bulk and mass of the building will remain relatively unchanged."
• "The addition of the approximately 266 square foot bottle redemption facility is
considered relatively small when compared to the 95,150 square foot building and
is an accessory use to the main building."
• The bottle redemption building's location on the northern portion of the parking
lot, next to the store, "will have insignificant impact on the appearance of the
overall site and is consistent with the surrounding commercially developed area."
(Decision at 11-12.)
The Director also found compliance with the "use" subpart of EC 9.8455(2)
because the approval of SR 88-11 and 1988 Plans "did not limit the type of uses on the site and
that current C-2 zoning considers the original Shopko use and the proposed WinCo use in the
same permitted use category[; thus,] the WinCo proposal is not considered a change in use of the
site and is consistent with the original [SR 88-11] approval for the development of a shopping
center." (Decision at 12.)
Page 11 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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Finally, the Director found that "[t]he proposed modification to the site should
have no significant negative impacts to surrounding properties." (Decision at 12.) Rather, the
Director correctly determined that the loading dock modification will "significantly enhance the
aesthetic appearance and provide visual screening of the newly renovated loading dock area" and
that "[t]he relocated loading dock and proposed 8-foot high walls along the loading dock and
compactor area will likely contribute to sound attenuation from those areas * * (Decision
at 12-13.) In regard to traffic, the Director correctly observed that the reconfiguration of the
loading area will have no impact on the traffic volumes, and the bottle-redemption building will
certainly not result in an increase of 100 vehicle trips to the Property for any peak hour.
(Decision at 13.)
Accordingly, the Decision stated that "[b]ased on the findings above, it is
concluded that the proposed Site Review Modification (MDA 20-5) complies with the applicable
approval criteria set forth at EC 9.8455. Approval of the applicant's requested modification is
granted" with a condition of a slight revision to the landscaping plan. (Decision at 13.)
IV. RESPONSE TO ALLEGATIONS OF ERROR
In previous comments and now in their appeal statements, LSL and EMF advance
multiple untenable theories (many of which are irrelevant to the applicable criteria) as to why the
City erred in issuing an approval of the modest changes proposed in the Application. Only five
simple observations are necessary, however, to dispatch with all of the appellants' arguments and
confirm the correctness of the Decision:
The opening of a new WinCo store at the Property is not at issue in this
Application because it is already an outright allowed use.
Page 12 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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2. The opening of the store is not a "change in use" from the previous occupant,
Shopko, because department stores and supermarkets are under the same zoning
use designation: "General Merchandise."
Site review does not determine whether "uses" are allowed, but only addresses the
character and on-site environment of development allowed by a property's base
zoning.
4. In evaluating a change to site review plans, the proper comparison is between the
existing and modified plans-not the current level of development.
Remodel work at a site does not trigger a requirement to bring an entire Property
up to current code standards.
With this proper framework in mind, it is clear that none of the appellants'
arguments provide a basis on which to deny the modification application.
A. The Director Correctly Found That the Proposed Modifications Complied
With the SR 88-11 Conditions of Approval.
LSL first argues that the Director erred in finding that the Application complies
with four of the SR 88-11 conditions of approval. The correctness of each of the Director's
relevant findings is established in the following subsections.
1. Condition (b), by its own clear language, does not apply.
Condition of approval (b) of SR 88-11 states:
"Prior to approval of Phase II, the City Traffic Engineer shall work with
JRH Traffic Engineers in assuring that the volumes of traffic at the Coburg Road
ingress/egress will be satisfactorily reduced by the future connection to Crescent
Avenue. Other means of encouraging traffic to Chad or Crescent may need to be
investigated. The connection to Crescent Avenue will need to be in place prior to
the completion of Phase IL"
Page 13 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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LSL claims that this condition is violated by WinCo's proposed modifications to
the 1988 Site Plans because they have not submitted a plan with the Application to address the
traffic generated by other sites over the past 32 years. 13
As background, the SR 88-11 application sought immediate approval for
construction of the retail store on the Property, as well as preliminary/tentative approval of a
secondary "Phase II" development of the planned shopping center on adjacent parcels, which
first needed to be rezoned and/or acquired by the developer. (SR 88-11 decision, Ex. 3.) This
Phase II development was intended for the land now occupied by PetSmart, Office Depot, etc.
Phase II, however, never moved forward. Rather, this land was partitioned and sold to PetSmart
in 1993, who then obtained a revocation of the 1988 site plan approval and corresponding Site
Review Agreement as they applied to the Phase II land.14
Accordingly, this condition is inapplicable because it is directed at other sites and
for a future development that never occurred.
But even if this condition was directed at the Property, LSL's argument is still
flawed because the language is plainly directed at the original construction work, e.g., it
discusses the Property's "future connection to Crescent Avenue," which was completed in 1989.
13 In this case, the additional traffic purportedly required to be ameliorated by WinCo would include the traffic
generated by the entire Crescent Village development constructed by LSL and its sister companies, which covers
approximately 33 acres surrounding Crescent Avenue and includes more than 700 apartment units, tens of thousands
of square feet of commercial and office space and, in the future, a planned shopping center and large grocery store.
See LSL's application materials for planned unit development (PDT 16-003), available on the City website at
hops://pdd.eugene-or.gov/LandUse/SearchApplicationDocuments?file=PDT-16-0003. See also the Traffic Impact
Analysis study submitted therein, describing future development plans, attached as Exhibit 14 to WinCo's August 3,
2020, letter.
14 See 1993 Revocation Agreement between City and PetSmart, Inc.; part of SR 93-6, attached as Exhibit 13.
Page 14 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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The temporal nature of this condition is made further clear by its requirement that the
developer's consultant, JRH Traffic Engineers, complete the work at issue.
Thus, the Director correctly found that "a traffic impact assessment was
completed with the original approved development and the required connection to Crescent
Avenue was completed, therefore this condition is no longer applicable." (Decision at 8.) The
referenced 1988 traffic impact assessment is attached as Exhibit 14 to this Response.
It should also be noted if LSL's interpretation was correct, condition (b) would be
an unconstitutional exaction, prohibited by the United States Supreme Court's holdings in Nollan
v. Cal. Coastal Comm'n, 483 US 825, 837, 107 S Ct 3141, 97 L Ed 2d 677 (1987) and Dolan v.
City of Tigard, 512 US 374, 395, 114 S Ct 2309, 129 L Ed 2d 304 (1994). Under this precedent,
a local government could not require a property owner to perpetually address traffic generated by
other sites because the offsite traffic would not be connected to the property's development and
the cost would be incommensurate.
2. Condition (c) is satisfied because the Application does not propose
modifications to driveways or cross-aisles, and all existing cross-aisles
are more than 150 feet from the public right-of-way.
Condition of approval (c) of SR 88-11 states:
"All driveways need to extend at least 150 feet into the site before
intersecting cross aisles. Final site review plans addressing this issue need to be
submitted prior to issuance of the site review agreement."
LSL complains that the Director's determination that the Application complies
with this condition is wrong because "[t]he Director is approving a 7-foot intersecting cross-aisle
setback when the condition requires 150 feet." (LSL Statement at 2.)
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This description of the Director's decision is inaccurate. The Decision clearly
states that the bases for its finding of compliance with condition (c) is that "[a]ll public
accessways to the site are proposed to remain unchanged[,]" and that the "original approved
Shopko site plan (SR 88-11) showed the rear loading dock area connecting to the neighboring
parcel to east (now referred to as the CML property) in the same location." (Decision at 8.)
Thus, the Director is not approving a new cross-aisle.
The SR 88-11 documents plainly show that the Director's description of the
1988 Plans is correct. The 1988 Plans show the access point from the docks to the Crescent
Avenue lane and a truck turn-around area on the other side of the driveway:
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PARCEL
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In conjunction with the clear design in the 1988 Plans, the SR 88-11 traffic study states that the
application proposes to construct Crescent Avenue along the north of the Property in order to
build "the second driveway to provide truck access to the rear of the site." (Ex. 14, at 5.)
The existence of this 1988 access point was also confirmed in the August 15,
2000, final site review plans (SR 00-13) for the adjacent property to the east:
SR 00-13 Landscape Plan
f.
-7/
r\ ~
I
Although not articulated, it is likely that LSL's theory is premised on the fact that
there is currently a small planting bed across this access. But, as recognized by the City and
adjacent lot owner, the SR 00-13 final plans and other documents in the SR 00-13 land use file
indisputably show that the planter box was constructed without preauthorization by WinCo or
the City, and in contradiction of the approved plans. 15 (And instead of having it removed, the
Property's previous occupant simply drove its delivery trucks over the obstruction. Id.)
Regardless, the existence of the planter box is immaterial. This Application concerns
is The history and lack of consequence of this planter box is discussed at length in WinCo's August 3, 2020, letter;
Exhibit 7, at pp 5-11, Exhibit 8 (historic satellite photos).
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modifications to the 1988 site review plans. And no modification is needed to the 1988 Plans to
continue the reconfigured loading dock's connection with the Crescent Avenue access lane.
LSL's argument also incorrectly assumes that the term "intersecting cross aisle"
refers to the access from the loading dock area onto the Crescent Avenue access lane. But this
cannot be. Condition (c) was issued in the SR 88-11 written decision on November 16, 1988.
The 1988 Plans were deemed to comply with all conditions when they were subsequently
approved in 1989. Thus, it is not possible that an "intersecting cross aisle" refers to access from
the Property onto the Crescent driveway because pursuant to EC 9.8450, "[a] site review plan
shall not be stamped with the city's approval until all conditions of approval have been met [and
o]nce stamped by the city's approval, a site review plan is deemed to be consistent with all
development standards of this land use code." 16 Further, this condition states that the "[f]inal site
review plans addressing this issue need to be submitted prior to issuance of the site review
agreement[,]" and the site review agreement was executed by the developer and City in
February 1989.
Accordingly, the Director correctly found that the Application complies with this
condition.
3. Condition (d) is satisfied because the landscape and irrigation plans
comply with current standards.
Condition of approval (d) of SR 88-11 states:
"A landscape plan showing sidewalk locations, all plant and tree locations
(including street trees), species, sizes, spacing, and irrigation methods will be
16 At the risk of beating a dead horse, LSL's argument is wrong for two additional reasons: even if the City
incorrectly approved the 1988 Plans by misinterpreting condition (c) that error cannot be challenged 30 years later.
And even if the decision could be challenged, WinCo is entitled to reconfigure the loading dock area because the
change brings the driveway into closer compliance with LSL's interpretation of the condition.
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required to be submitted and approved prior to occupancy of any building in
Phase I. All buffering and screening requirements of the City Code will need to
be adhered to."
LSL argues that the Application also violates this condition. LSL's theory is that
because there is no definitive proof of the original occupant submitting a landscaping plan prior
to receiving an occupancy permit, it must be assumed that the condition was not satisfied. LSL
offers no legal basis for why it should be presumed that the City did not enforce compliance with
this condition prior to issuing the occupancy permit. Nor does LSL provide an explanation for
the existing landscaping, despite the City's purported failure to enforce the landscaping
provision:
Regardless, WinCo is at a loss to understand how LSL could make this argument
when it has submitted a new landscape and screening plan that goes beyond all current standards.
As the City correctly noted:
WinCo's "landscape plan indicates the area will be landscaped to current
L-3 screening standards and includes 15 trees, 102 shrubs and 157 ground cover
plants. It is noted that EC 9.6420(3)(d)3a only requires L-2 Landscape standards,
and the applicant has voluntarily exceeded these requirements of by proposing
L-3 landscape standards which will help in screening the new receiving area. In
addition, 8-foot high CMU walls are proposed adjacent to the loading dock and
the compactor areas to provide additional screening and noise buffering."
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(Decision at 9.)I7
This, however, is apparently not enough for LSL. It argues that the City must
require WinCo to comply with both the current landscaping standards and the "code standards in
effect at the time of the original Site Review." (LSL Statement at 11.) LSL does not identify
which 1988 standards are not satisfied by WinCo's landscaping plan or explain why any
development would be required to comply with both current and archived code.
WinCo's landscaping plan is above the required standards. It also fulfils condition
(d) because it shows "the sidewalk location, all plant and tree locations (including street trees),
and species, sizes, spacing, and irrigation methods as required." It is patently clear that this
condition is satisfied by the Application.
4. Condition (g) is satisfied because all truck maneuvering will still occur
on site.
LSL argues that the proposed reconfiguration of the loading dock will require
WinCo delivery trucks to maneuver "off site," thus violating condition of approval (g), which
states:
"All freight loading activities shall occur on-site with no maneuvering
needing [sic] to require use of the right-of-way. Any service drives shall be
signed as such. A temporary access to Coburg Road for the freight loading north
of the Shopko building will be permitted if Crescent Avenue has not been
improved. This temporary access will need to be removed and replaced with
landscaping (as per the approved landscape plan) once Crescent Avenue is
improved."
As explained at length in WinCo's previous analysis, this argument is facially
untenable. The requirement for on-site freight loading activities means that the truck
17 The City did determine, however, that the trees selected by WinCo do not meet the City's definition of canopy
trees and thus issues a condition of approval that this error must be corrected prior to issuance of a building permit.
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maneuvering cannot use the public "right-of-way." A challenge to the scope of this condition is
baffling because the prohibition on use of public right-of-way is literally stated in the very first
sentence of the condition. The basis for the condition in the written approval even identifies the
specific road/public right-of-way at issue, stating "[t]he freight loading activities at the northern
edge of the Shopko building will need to all occur on site with no maneuvering within the right-
of-way of Crescent Avenue." (Ex. 3, at 4) (Emphasis added.)
LSL's contends, however, that the "site" in this condition is limited to the Property
rather than shopping center that was actually at issue in SR 88-11. The 1988 Plans, however,
explicitly show that truck maneuvering, i.e., "turn around" is allowed to occur off the Property
on the adjacent parcels in the shopping center. The right to do so was confirmed in the final
plans for SR 00-13, which also included the turning radii from the loading dock area. (See
images on page 17 above.)
This theory is also undermined by the 1988 Cross-Easement Agreement (the
"Agreement")" governing the shopping center's driveways, parking, and other common areas,
which was executed as part of the original development and submitted to the City during the
review of SR 88-11. This Agreement explicitly provides for truck maneuvering across all
properties within the shopping center. The Agreement states that the shopping center owners,
tenants, and other occupants have the right to use all "Common Areas" (Agreement, ¶ 1.03)
which include areas devoted to parking, approaches, exits, entrances, interior roadways, service
roads, and other similar areas-for "vehicular traffic, over, upon, across and between each Site
and the public streets" (Agreement, ¶ 2.01.2), as well as for "service facilities (which includes
" Attached as Exhibit 12 to WinCo's August 3, 2020, letter to the City (Exhibit 7).
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loading docks, trash enclosures, bottle storage areas and the like) * * Agreement, ¶ 5.03(d).
The site plans incorporated into the Agreement clearly show the loading dock access to the
Crescent Avenue access lane.
LSL offers no support for its theory, only its fundamentally flawed interpretation,
which is in direct conflict with the plain language of the condition, the discussion in the written
approval, the 1988 Plans, and the subsequent confirmation of the use of the adjacent parcel in the
SR 00-13 final plans. In light of these documents, there can be no reasonable question that the
City correctly found compliance with this condition.
B. The Director Correctly Found That the Proposed Modifications Do Not
Significantly Change the Appearance, Use, or Impact From the Site.
LSL argues that the Application should have been denied because it will result in
significant changes to the Property's physical appearance, use, and impact on surrounding
properties. Likewise, EMF claims that there will be a significant impact because WinCo will be
open 24 hours a day.
The first fundamental flaw in these arguments is that they flow from comparisons
of the purported operational differences between WinCo and ShopKo, the previous occupant of
the Property.19 As noted earlier, the past use of the Property is not relevant to this Application.
Because it is clearly an outright allowed use in the C-2 zone, a supermarket may operate on the
Property to the fullest extent allowed under the zoning code, without reference to or restriction
based on the past operations of prior occupants. The relevant issues in this Application flow not
19 In the LSL appeal statement, LSL even goes so far as to state as a fact that ShopKo "had a much lower volume of
truck deliveries than projected with WinCo," and that under ShopKo "deliveries were not made after store business
hours." (LSL Statement at 4.) It is not clear where these "facts" came from or how LSL could possibly substantiate
them if they were actually relevant.
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from the identity or operational characteristics of a past occupant, but from the specifications in
the 1988 Plans. It is these plans that must be amended to allow for the proposed bottle
redemption building and loading dock reconfiguration. Thus, the apt comparison for purposes of
EC 9.8455(2) is between the development allowed under 1988 Plans and the proposed
development under the plans as modified.
The focus on the comparison of the existing and modified plans is readily
apparent in the plain language of the relevant section, EC 9.8455, titled "Modifications to
Approved Site Review Plans." It states that "[m/odifications of the final approved site review
plan may be requested following the Type II process[,]" and that this "request" and "proposed
modification" shall be approved if it is consistent with the conditions of the original approval and
"the proposed modification will result in insignificant changes in the physical appearance of the
development, the use of the site, and impact on the surrounding properties." (Emphasis added.)
There is no reference whatsoever in this code section to the existing or past use of the property at
issue.
The oppositions' underlying theory that the focus should be based on past use is
clearly unworkable. If the current or past use of the property was the basis for determining if the
modification will result in significant changes, there could never be a modification to site review
plans prior to or during construction of the development. The allowed modifications to the
operations and buildings at the site would vary over time, depending on the success and size of
the current business. Even minor technical changes to the plans would frequently not be allowed
unless the applicant first built out the property to the full extent allowed under the approved
plans before proposing the change. And ultimately, the review would be nonsensical because it
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would not be focused on the relevant limitation on the development of the land, i.e., the existing
site review plans. Accordingly, the City correctly focused its analysis on the modifications of
the 1988 Plans, not the previous use of the Property.
The substance of the appellants' arguments in the appeal statements are the same
as those they made in past comments, which were considered and rejected by the Director in the
Decision. Because the appellants fail to engage in the correct comparison of the 1988 Plans and
two modifications, there is little relevant material to respond to. Accordingly, WinCo directs the
hearing official to the in-depth analysis of the lack of significant impact in its August 3, 2020,
letter, sections 9 and 10 (Exhibit 7, at 15-21) and the Director's analysis in the Decision (pp. 11-
13).)
In short, it is clear that the reconfiguration of the loading dock is not only an
insignificant change to the physical appearance, use, and impact of the Property, but will benefit
the public, especially appellant LSL. Under the proposed modification, the loading docks will be
moved further south into the existing building footprint, further from the public right-of-way and
the LSL apartments across the street. The reconfiguration will allow WinCo to better screen the
loading activities, and reduce the sound therefrom, by the construction of a block wall and roof
over the docks. The reconfiguration also includes new landscaping. The lack of significant
change and benefit to LSL is obvious from a comparison of the current and future appearance of
the loading area:
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CURRENT APPEARANCE :20
AS MODIFIED :21
L
Likewise, a comparison of the plans shows that the proposed conversion of the
lawn and garden center to a smaller (266 square feet), more attractive, bottle redemption center
near the front entrance of the store does not result in a significant change in the development's
physical appearance, use of the site, or impact on surrounding properties:
Modified Plans for Application
1988 Plans
1
20 From Google Maps, available at hops://www.goo~4le.com/maps/k,44.09295.-
123.0666832.3a.90y.171.59h.80.82t/data=! 3m6! 1 el ! 3m4! 1 sTGW WKcjsTo_8uAgLAwTh7g! 2e0! 7il6384! 8i8192.
21 Application Site Plans, "C-2 North Property Modifications."
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Again, it must be noted that the proper comparison is not between the occupant's
prior development and use of the Property, but the full extent of the use and development
possible under the original and modified plans. Appellants offer no explanation for why the
proposed bottle redemption center would be a significant change from the large range of
buildings and operations of a greenhouse/lawn and garden center allowed under the 1988 Plans.
For example, the currently allowed greenhouse and garden/lawn area could be the exact same
size and intensity of use as the planned bottle redemption center, or even far larger and busier.
C. The Director Properly Rejected Appellants' Theory That the 1988 Plans
Converted Supermarkets Into a Nonconforming Use on the Property.
Appellants likely recognize that their arguments have no chance of success unless
they can manufacture a theory as to why the outright allowed use "supermarket" is not actually
an allowed use on the Property. To this end, LSL argues that a supermarket is not a permitted
use on the Property because it has not been authorized by a site review approval and because the
1988 site review (SR 88-11) only approved a "shopping center." Both are clearly incorrect.
First, site reviews do not authorize, or otherwise control, the allowed uses on a
property. The site review code only addresses the development already allowed on the site "as a
means to maintain or improve the character, integrity, and harmonious development of an area,
address potential environmental impacts, and to provide a safe, stable, efficient, and attractive
on-site environment." EC 9.8425. Thus, the site review process evaluates proposed "site review
plans" for compliance with criteria concerning protection of natural features, tree preservation,
parking, and transportation systems, as well as whether "[t]he site review plan's general design
and character is reasonably compatible with surrounding properties, as it relates to building
locations, bulk and height, noise, glare and odors." EC 9.8440.
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Nowhere does the City's land use code state that a site review overlay or site
review approval can expand, restrict, or otherwise dictate the actual uses allowed under the
applicable base zone. See EC 9.440-.4410 & 9.8425 et seq. Site review is only relevant to the
appearance and function of the allowed uses, which is determined by the property's zoning. The
only time "uses" are mentioned in the code related to site review is in EC 9.8430, which merely
states that certain uses may trigger a requirement for site review. In fact, a change in use does
not itself trigger a requirement for a new site review approval unless there are corresponding
changes to the physical development on the site. EC 9.8430.
Further, the Land Use Board of Appeals ("LUBA") has already held that there is
no connection between site review and nonconforming use regulations. In McPhillips Farm v.
Yamhill Cnty., 66 Or LUBA 355, 2012 WL 10816576 (2012), the petitioners made an identical
claim that a proposed development was subject to the restrictions on nonconforming uses
because the site purportedly did not have proper site design review approval. LUBA rejected
this theory stating:
"That most portions of the existing landfill have not received site design review
does not mean that the existing landfill is a non-conforming use, or that a
proposed expansion of the landfill must be processed and evaluated as an
alteration of a non-conforming use. At most, it means that a previously
unauthorized expansion would require site design review." McPhillps Farm,
2012 WL at *9.
LSL's supplemental argument that SR 88-11 restricted all uses other than
"shopping centers" is also meritless. This should be immediately apparent from the fact that a
"shopping center" is not and never has been a use category under Eugene's zoning code.
Further, the limited 1988 site review could not have possibly generated this
purported restriction on "use." The four narrow criteria considered in SR 88-11 concerned only
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the high-level nature of the physical development on the Property, which is why there is so little
detail in the 1988 Plans and the only condition remotely relating to the operations on the site
concerned noise control. There is not a single condition or restriction in the SR 88-11 decision,
conditions, plans, or development agreement that can be read to restrict the type of retail use-or
even commercial use-of the Property. Not once do the SR 88-11 application, written approval,
development agreement, or site plans refer to "shopping center" as a technical term from the
zoning code or restriction on the use of the Property. In fact, LSL offers no explanation for how
a restriction to only a "shopping center" use could even have been applied when the 1988 site
review concerned a single, sole-occupant building. Obviously, the approval's reference to a
"shopping center" was a discussion of the overall development plans, not a restrictive condition.
Accordingly, it is clear that the Director properly rejected LSL's two "creative" disallowed use
theories.
D. The Director Also Correctly Rejected Appellants' Contention That the
Existence of Old Structures on the Property Makes Every Use at the Site a
Nonconforming Use.
As a second theory for attacking the allowed use of a supermarket, both EMF and
LSL argue that because there are old structures on the Property that are perhaps out of
conformance with current development standards, all uses on the Property are nonconforming.
This contention is contrary to basic land use principle and requires only a short response.
Regulation of nonconforming uses is set forth in EC 9.1220, while
nonconforming structures are governed by EC 9.1230, and there is no interplay between the two
provisions. EC 9.1230 only addresses physical changes to a nonconforming structure;
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EC 9.1220 only concerns the continuation, limits on, and extinguishment of a legal
nonconforming use.
This nonconforming use argument has also been rejected by LUBA. In Tarbell v.
Jefferson Cnty., 21 Or LUBA 294, 1991 WL 1169487 at *4 (1991), LUBA denied the
petitioner's theory that "because a structure may be nonconforming, the use of the structure is
subject to regulations applicable to changes in nonconforming uses." LUBA held this was not
plausible because the code "distinguished between nonconforming uses and structures and
establish different criteria for changing nonconforming uses and nonconforming structures." Id.;
see also Caster v. City ofSilverton, 54 Or LUBA 441, 2007 WL 1964240 (2007).22
E. The Director Was Not Required to Consider All Development Standards
Related to the Property.
In its third assignment of error, LSL states that the Director's decision is flawed
because it incorrectly found that SR 88-11 "is still in effect" and thus "prevents development
standards adopted since 1988 from being applicable." LSL cites to no such finding in the
Decision because it does not exist. Regardless, the underlying argument that the City was
required to order WinCo to update the entire Property to current development standards is
entirely unsupported and in patent conflict with the City's zoning code.
First, it is unclear how a site review approval could no longer be "in effect" or
how that would trigger an obligation to update all structures on the Property to meet current
development code standards.23 The concept of being "in effect" seems to be borrowed from
22 LUBA again distinguished between nonconforming uses and structures, holding that the extinguishment of a
nonconforming use does not affect the right to maintain the nonconforming structure.
23 Even if no site review existed for the Property (for instance because the site review overlay did not apply at the
time of initial development), all uses permitted in the C-2 zone would still be allowed. In fact, the lack of existing
site review plans would be beneficial for WinCo because it would not need to obtain approval of this Application,
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nonconforming use or conditional use code sections, where the right to conduct a use can be lost
in certain circumstances. But as explained above, the site review code has no impact on the uses
allowed on a site. It cannot authorize or restrict a use. At most, the circumstances of a new or
altered use might trigger the need for a new site review, McPhillps Farm, 2012 WL at *9, which
is clearly not the case here.
LSL also fails to identify a code provision or provide any other basis for why
WinCo is required to update the Property outside of the modifications proposed in the
Application. In fact, even the development standards applicable to the proposed structures
underlying the request for the site review plan modification are not pertinent at this time because
the Application does not authorize the improvements; it only alters the 1988 Plans to allow
WinCo to subsequently apply for development permits.
F. The Director Correctly Found That a Traffic Impact Analysis Is Not
Required for WinCo's Proposed Remodel.
In its fourth and final argument, LSL states that the City should have required a
traffic impact analysis to be submitted with WinCo's application for the modification of the
1988 Plans. (LSL Appeal at 7.)
This is incorrect. A TIA is only required when proposed "developmenti24 will
generate substantial traffic, i.e., "100 or more vehicle trips during any peak hour." It cannot be
reasonably argued-and no one has-that the "development" actually at issue in the Application
will generate meaningful levels of new traffic. As the City properly found, the reconfiguration
and there would be no need to submit to a new site review. EC 9.8430(1) (site review only required for
development of vacant property or the expansion of existing building footprint by 20 percent or more).
24 EC 9.0500 (development includes "building alterations or additions, site improvements, or a change in use").
Page 30 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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of the loading dock and placement of a bottle redemption center could not possibly generate
anywhere close to 100 trips during any peak hour. (Decision at 13.)
In response, appellants repeat their argument that the opening of the WinCo store
is a "change in use" and the switch from a department store to a supermarket is "development"
that will generate significantly more traffic. But, as explained several times above, it could not
be clearer that department stores and supermarkets are in the same use category. As
reinforcement of this point, below is the entire relevant section of the pertinent use table:
Table 9.2160 Commercial Zone Land Uses and Permit Requirements
C-1
C-2
C-3
GO
Trade (Retail and Wholesale)
Agricultural Machinery Rental/Sales/Service
C
Appliance Sales/Service
P
P
Bicycle Rental/Sales/Service
P(l)
P
P
Boat and Watercraft Sales/Service
P
C
Book Store
P(1)
P
P
Building Materials and Supplies
Computer Store
P(1)
P
P
Convenience Store
P(1)
P
P
P(2)
Drug Store (excluding Drug Treatment Centers)
P(l)
P
P
Electrical Appliances and Supplies
P(1)
P
P
Equipment, Light, Rental/Sales/Service
P
P
Equipment, Heavy, Rental/Sales/Service- includes truck
and tractor sales
C
Fabric Store
P
P
Floor Covering Store
P
P
Furniture and Home Furnishing Stores
P
P
Garden Supply/Nursery
P(1)
P
General Merchandise (includes supermarket and
department store)
P(1)
P
P
P(2)
Hardware/Home Improvement Store
P(l)
P
P
Healthcare Equipment and Supplies
P
P
Liquor Store
P
P
Manufactured Dwelling Sales/Service/Repair
C
Office Equipment and Supplies
P
P
Page 31 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
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ATTORNEYS AT LAW 4816-6071-2143.6
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Table 9.2160 Commercial Zone Land Uses and Permit Requirements
Plumbing Supplies
P
P
Retail trade when secondary, directly related, and limited
to products manufactured, repaired or assembled on the
development site
P(1)
P
P
Storage Facility, Household/Consumer Goods, enclosed
P
Specialty Store (an example includes a gift store)
P(I0)
P(1)(I0)
P(10)
P(2)(10)
Toy and Hobby Store
P(1)
P
P
Video Store
P(1)
P
P
Because there is not a change in use, the Director correctly found that a traffic
impact assessment was not required.
V. CONCLUSION
The Director's findings and approval for the two minor modifications to the
1988 Plans should be uncontroversial. And in fact, it is readily apparent from the appellants'
appeal statements and past submissions that the modifications are not really what they oppose.
Appellants' arguments opposing the opening of the WinCo supermarket, however, are not only
irrelevant but also facially meritless. Because the two modifications requested in the Application
easily satisfy the two applicable criteria, WinCo requests that the hearings official affirm the
Director's Decision.
DATED this 21st day of October, 2020.
MILLER NASH GRAHAM & DUNN LLP
f~ r
Steven G. Liday, OSB No. 075975
Kelly Hossaini, OSB No. 010598
Counsel for WinCo Foods, LLC
Page 32 - WinCo Foods, LLC's Response to Appellants' Statements of Alleged Errors
MILLER NASH GRAHAM & DUNN LLP
ATTORNEYS AT LAW 4816-6071-2143.6
TELEPHONE: 503.224.5858
3400 U.S. BANCORP TOR'ER
I11 S.W FIFTH AVENUE
P ORTLAND. OREGON 97204