Amid allegations of bribery and other misdeeds levied by the city of Wilsonville, Home Depot will appeal to the Oregon Land Use Board of Appeals a city decision that prevents its use of the Fry’s Electronics building. The appeal comes as Home Depot also seeks an enforcement order with the Land Conservation and Development Commission against the city for allegedly violating local and state law.
Home Depot has been working to come to Wilsonville by moving into the former Fry’s Electronics building at 29400 Town Center Loop W. The process has involved two land use reviews, one defining the existing nonconforming status of the property and the other deciding if Home Depot would continue that use.
The city has repeatedly denied appeals for both applications, defining the property as an electronics-related retail store and saying that Home Depot’s operations would be different than Fry’s Electronics — not a “continuation of use.”
According to a notice sent to the city on Thursday, May 23, representatives of Home Depot intend to appeal the Wilsonville City Council’s May 17 decision denying Home Depot’s proposed use of the property, ruling that the company would not qualify as a continuation of use. This decision, which upholds a previous Development Review Board determination, will be appealed to the Oregon Land Use Board of Appeals.
The notice on an enforcement order is related to a city decision on the status of the Fry’s Electronics building. In March the Development Review Board upheld Wilsonville Planning Director Miranda Bateschell’s decision, adding that the property is “159,400 square foot electronics-related retail store,” based on Fry’s Electronics’ occupancy of the building when updated zoning codes from the Town Center Plan took effect in June 2019.
Under the new codes, the Fry’s Electronics operations in the building no longer conformed with city code, but the store was allowed to remain in place because it existed at the location prior to the updated codes. Home Depot hoped to move into the building and argued that the existing use is not specifically an “electronics-related retail store” but a broad commercial retail use that both Fry’s Electronics and Home Depot fall under.
Wilsonville City Council upheld the board’s decision on April 15, and Home Depot representatives later submitted a notice of intent to appeal to LUBA. Home Depot’s notice that it will seek an enforcement order was made March 27, before that City Council decision.
In a May 24 letter, the city said Home Depot’s enforcement order notice should be withdrawn because the Home Depot representative’s argument is specific to one decision-making process and does not meet the threshold of a “pattern or practice.” The city also accused the Home Depot representatives of abusing the process, with allegations including insinuations of bribery and using inappropriate “warnings” as intimidation tactics.
On Friday, June 28, Wilsonville Assistant City Attorney Stephanie Davidson said in an email that LUBA consolidated the matters related to the two appeals into one process. She said in the email both parties will submit legal briefs in August, and anticipates the trial will occur this fall.
The enforcement order notice
According to the Land Conservation and Development Commission website, someone can petition the body if a decision-maker, like a local government, makes a series of decisions that go against relevant regulations. The most common circumstance for a petition is if a local government has engaged in a pattern or practice of making decisions that violate land use or zoning regulations at the state or local level, as Home Depot representatives argued in their notice.
In the notice for an enforcement order, representatives of Home Depot argued that the city did not comply with Wilsonville and state regulations in its proceedings on the status of the building.
Specifically, the notice asserts that the city did not comply with state regulations in its rejection of certain materials from inclusion in the case record that Home Depot deemed favorable to its cause during the appeal. A transcript provided in the notice from a March 14 Development Review Board deliberation on the decision shows the board deciding to remove any testimony or written material related to Home Depot from the record, stating that it was not relevant to determining the use of the property when it no longer conformed with updated codes. The DRB can only consider materials that are included in the record in making its determinations.
The board also removed testimony or material referring to a 1991 land use decision that approved a master plan modification and changed the land use classification for the property to “Central Commercial.” This ushered in development of the former “Project Thunder,” which described itself as an “electronics related retail store” or “commercial retail store,” according to a staff report.
In past public meetings on both the status of the building and if Home Depot would represent a continuation of the existing use, the company’s representatives argued that Home Depot would be allowed to move into the property due to the 1991 decision. The representatives reasserted this argument in the notice, stating that the 1991 decision is the controlling authority for deciding the nature and extent of the nonconforming commercial use.
City staff stated in past public meetings that only the updated codes from the Town Center Plan are relevant, and Bateschell said that Home Depot representatives had a flawed understanding of how the 1991 regulations would apply.
However, Home Depot representatives argued in the notice that, with the Development Review Board’s March determination upholding the previous decision by Bateschell, the board engaged in a pattern or practice of decision making that did not comply with city or state regulations. They claimed the decisions were made “in an all-out effort” to prevent Home Depot from using the property.
The city’s response
In a May 24 letter, the city said it will not take action following the enforcement order notice, positing that the notice does not provide enough evidence to support the allegations and that the notice should be withdrawn.
Seven allegations are listed in the letter, including one that accuses the Home Depot representatives of insinuating bribery in an April 2 phone call. According to the letter, Home Depot representatives suggested to city staff that the company could convince property owners around the Fry’s Electronics building to agree to amended covenants, conditions and restrictions agreements that would help further the vision of a walkable Town Center described in the 2019 Town Center Plan. CC&Rs are private agreements between property owners, and the letter stated that city staff responded that the agreements are not relevant to city regulations. The letter said that Home Depot representatives suggested offering a favor in return for land use approval.
Home Depot representatives continued to discuss the CC&Rs in public meetings after the phone call, according to the letter, and even offered to have a condition of approval about the CC&Rs at the May 17 City Council meeting if the council allowed the company to move in to the Fry’s Electronics building without altering its proposal.
The city also accused Home Depot representatives of using inappropriate “warnings” as intimidation. According to the letter, during an April 11 phone call Home Depot representatives stated that there would be a “blood bath” and “a lot of mudslinging” at the April 15 City Council meeting on the status of the property if city staff did not agree to the company’s request.
Home Depot representatives were also accused of falsely stating that the city required a bifurcated process for the applications, which led to a confusing process and the two separate decisions, and false allegations that the city refused to meet with Home Depot representatives. Further, the letter accuses Home Depot of failing to identify legal counsel in a pre-application meeting with city staff in March 2022, and ignoring other land use possibilities Home Depot could pursue in Wilsonville.
The letter ends with a final accusation that in seeking an enforcement order, along with the actions described in the city’s other accusations, the company’s representatives show “a pattern or practice of Home Depot using threats, bribery and frivolous claims in its attempt to force the city” to approve the applications.
In an email responding to the allegations on Monday, July 1, Home Depot Senior Public Affairs Manager Evelyn Fornes said the company denies “all allegations of wrongdoing” and is “following the standard proposal process for a new site.”
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