July 2020 Status Update: What’s Happening with the Kuebler Gateway Shopping Center?

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​Salem's City Council is set to consider the State Land Use Board of Appeals remand of their 2018 decision on the Kuebler Gateway Shopping Center.  The City is required to correct errors in its 2018 decision on the proposed development's Site Plan Review.

There is no public hearing scheduled for this proceeding, nor can the period for public comment be extended. The City Council previously held a public hearing on this application in December 2018. The application has not substantively changed since that time.  In addition, there is a state law mandated decision deadline of October 28, 2020, meaning there is not sufficient time to extend the public comment period and meet the deadline.

If you would like to submit comments concerning the application, please submit them in accordance with the following schedule to [email protected].  

The comment periods, as set forth in the Notice of Remand, provides for:

  1. Open Comment Period from July 1, 2020 to July 28, 2020 at 5:00 p.m.,
  2. Open Rebuttal Period from July 29, 2020 to August 12, 2020 at 5:00 p.m., and
  3. Applicant's Final Written Argument Period from August 13, 2020 to September 10, 2020 at 5:00 p.m.

All timely comments will be included in the record of the application and provided to City Council for their review prior to making a decision.  Council is scheduled to meet on September 28, 2020 and deliberate toward a decision. No public comment regarding the application will be accepted at that meeting or after the open rebuttal period ends on August 12, 2020 at 5:00 p.m.

Because this is a quasi-judicial land use proceeding. the City Council will act as impartial decision-makers, and they are not permitted to engage in discussions with the applicant or members of the public regarding the substance of the application (ex parte contacts).  Please note: while the City Council may read all timely comments submitted during the record period, they cannot respond to individual comments.

What's happened so far: Procedural history 2007 to 2018

In 2007, the Salem City Council issued a land use decision approving an application from Pacific Realty Trust ("PacTrust") for a Comprehensive Plan Change and Zone change for property located at the 2500 block of Boone Road (the "2007 Decision"). The property borders Kuebler Blvd, 27th Ave. and Boone Road SE. That decision was appealed to the Oregon Land Use Board of Appeals (LUBA). The 2007 Decision contained several conditions of approval. The conditions related to on-site improvements and certain off-site traffic improvements. Since that approval, the applicant has constructed many of the traffic improvements or contributed money to cause the improvements to be completed.

Because the 2007 Decision changed the comprehensive plan designation and zoning designation to "Commercial," the proposal for commercial development is a "permitted use" under the City's code. Pursuant to SRC Chapter 220, prior to constructing a permitted development, the developer is required to obtain Site Plan Review approval.

In 2018, PacTrust and a related entity M&T Partners (together the "applicants") applied for Site Plan Review Approval and a Driveway Approach Permit for the property. The application proposes a retail shopping center comprised of a Costco store, a retail fueling station and four retail buildings on the 23-acre property.  In December 2018, after a public hearing, the City Council denied the application, finding that the proposed use, particularly the Costco store, was not compatible with condition of approval 14 of the 2007 City Council decision that required the property to be developed as a "retail shopping center" not to exceed 299,000 square feet of gross leasable area.

In addition, the City Council decision found that the application, which proposed to remove eight significant Oregon white oaks from the property, did not meet SRC 808.030(a)(2)(L), which allows removal of Oregon white oaks where the removal is necessary in connection with construction of a commercial or industrial facility. The City Council decision did not address any of the other applicable criteria.

Remand from the Land Use Board of Appeals and Court of Appeals

The 2018 City Council decision was appealed to the Land Use Board of Appeals (LUBA). LUBA remanded or returned the decision to the City, because LUBA found the City's decision contained errors). Specifically, LUBA found that the City erred in determining the proposed shopping center violated Condition 14 of the 2007 Decision and that a store, such as Costco, was a permitted use.  LUBA also found that the City correctly determined the application failed to comply with SRC 808.030(a)(2)(L) regarding tree removal. LUBA also determined that the City's decision failed to address a vested rights argument made by the applicants, and that the City must address that argument on remand.  On remand, the City is required to address the errors found by LUBA in addition to making a determination of whether the applicants comply with all other applicable criteria.

LUBA's decision was appealed to the Oregon Court of Appeals by private citizens who participated in the proceeding before the City and LUBA. The Court of Appeals agreed with LUBA's decision and affirmed it.

Next steps: Due dates for actions City must take

ORS 227.181 requires local governments to make a final written decision on remand from LUBA within 120 days of the date that the applicant makes a written request for the local government to take action. The applicants submitted a letter asking the City to take action on remand on June 16, 2020. In addition, the applicant agreed to a 14-day extension to the 120-day decision for the purpose of allowing for additional time for the public to submit comments and for the applicant to provide for final written argument. The City is required to issue a final written decision no later than October 28, 2020.

City Council conducts quasi-judicial land use proceeding: September 28, 2020

After the comment periods end on September 10, 2020, City staff will compile a staff report and recommendation to the City Council.

Council is scheduled to meet on September 28, 2020 and deliberate toward a decision. No public comment regarding the application will be accepted at that meeting or after the open rebuttal period ends on August 12, 2020 at 5:00 p.m.

This is a quasi-judicial land use proceeding. State law and the City code provide for certain procedural and substantive rights all participants. These rights include the right to impartial decision-makers, and the right to know what evidence the decision-makers are basing their decision on.

Because of these rights, the members of the City Council (the decision-makers) are not permitted to engage in discussions with the applicant or members of the public regarding the substance of the application (ex parte contacts). While the City Council may read all timely comments submitted during the record period, they cannot respond to individual comments.

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