In affirming a Development Review Board decision on the status of a building previously operated by Fry's Electronics, the city of Wilsonville may have complicated plans for a Home Depot to move in.
The motion passed 4-0 at the meeting on Monday, April 15. Councilor Joann Linville was not present at the meeting.
Council’s determination is specifically on the non-conforming status of the building. However, it may affect the ability of Home Depot, which wants to come to Wilsonville, to use the property.
The decision confirms that there is a legally established non-conforming use of the building, which is a “159,400 square-foot electronics-related retail store.” Home Depot’s hope was that the non-conforming use would instead be worded as commercial retail without the electronics specification.
The determination is based on the building’s use on June 5, 2019, when the Town Center Plan took effect and the use became non-conforming to the zone regulations. At the time, Fry’s Electronics operated on the property.
Keenan Ordon-Bakalian, a lawyer from the firm representing Home Depot, argued that the company’s use of the building would maintain the current non-conforming status, citing a 1991 decision that he argued approved broad commercial retail use. He said that decision did not make distinctions on what the commercial use is.
City staff said the 1991 regulations were irrelevant to the council’s decision, and that the appellant's understanding of how those regulations would apply was “flawed.”
A separate review by the Development Review Board is underway to determine if Home Depot’s proposed use of the property is a continuation of the existing non-conforming use, or not. Mayor Julie Fitzgerald said council’s determination April 15 may affect that decision.
At an April 8 hearing on the other review, the Development Review Board referred to the previous decision on the established non-conforming use, which was affirmed at the April 15 City Council meeting, when discussing the proposal. No decisions were made at the April 8 hearing.
A debate over scope
Wilsonville code defines a non-conforming use as “a legally established use, which was established prior to the adoption of the zoning use requirements for the site with which it does not conform.”
Regulations in the Town Center Plan say retail use cannot extend past 30,000 square feet, unless it spans across a different floor in a multi-story building. The footprint of buildings with multiple stories still cannot exceed 30,000 square feet.
The Town Center Plan seeks to develop housing, shopping, restaurants and green spaces in the Town Center. It includes projects such as the I-5 Pedestrian bridge and further public transportation development.
The property previously operated by Fry’s Electronics has a footprint beyond the 30,000 square feet allowed by the development code updates in the Town Center Plan. Because Fry’s existed on the property before the updated codes took effect, it was allowed to continue operating as a non-conforming structure.
Related to the Home Depot’s argument for a broad commercial use, Wilsonville Planning Director Miranda Bateschell said “commercial use” is not a specific use, and is “more a category of uses.” She said case law supports narrowing down a specific use.
Earlier in the meeting, Assistant City Attorney Stephanie Davidson also said that the city is entitled to have a narrow view of a non-conforming use. She added that recognizing a broad non-conforming use could open up the opportunity for any commercial business to use the building.
City Council and the representatives from Home Depot disagreed on the relevance of the 1991 decision on the matter.
The staff report for the April 8 hearing says the city approved a modification to a master plan in 1991, changing the land use classification for the property to “Central Commercial” to allow for the proposed development of the anonymous “Project Thunder,” which described itself as an “electronics related retail store” or “commercial retail store.”
Ordon-Bakalian argued that the 1991 decision shows the established non-conforming use at the property is broadly commercial retail use. He said the city’s determination that the use is a “single user electronic retail store” is “impermissibly narrow.”
Ordon-Bakalian said that the 1991 decision approved the use occuring at the property at the time it became non-conforming in June 2019. He said given discussion over the nature and extent in the staff presentation and before the Development Review Board, the appellants found the city’s position that the 1991 decision was not relevant “a little absurd.”
Bateschell said that several statements from the appellant in its appeal “misconstrue and mistate how zoning regulations would have been applied” if not changed by the Town Center Plan.
She said several overlays in the Town Center area had different permissible uses, which could be changed through an application approval. This is what happened with the 1991 decision related to “Project Thunder.”
Bateshell also emphasized that how Home Depot would use the building is not relevant to the council’s decision, as that would be covered in the Development Review Board’s upcoming decision on whether it is a continuation of use.
“I want to clarify for those attending and watching tonight that the nature of Home Depot or its potential use of the building is irrelevant to the question that’s before council tonight,” Bateshell said. “Because the Class 1 does not address a potential continuation of use.”
The appeal before City Council is considered a Class 1 review, which does not require subjective interpretation of the code.
Community generally voices support for Home Depot
Every seat in the City Council chambers was taken at the April 15 meeting, with 18 people testifying during the citizen’s input portion of the agenda. Most of those who testified supported having Home Depot in Wilsonville. Some of those in favor noted the convenience of having the company in town.
One Wilsonville resident who testified also attended the April 8 Development Review Board hearing related to Home Depot. He said that the presentation from Home Depot representatives at that meeting indicated the company is willing to work with the city on its plans for the space, which he found “admirable.”
Some testimony opposed allowing Home Depot to come to Wilsonville, with concerns about traffic and impact on small businesses. The concerns echo testimony from the April 8 hearing, during which three community members said they opposed allowing Home Depot in Wilsonville.
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