Foes of planned SE Bend gas station lose challenge at Oregon Court of Appeals, ‘will definitely be boycotting’
'It's too big a … burden for neighbors to fight against seasoned, moneyed developers'
BEND, Ore. (KTVZ) – The Oregon Court of Appeals has upheld a state land-use board’s ruling against opponents of a planned gas station in southeast Bend, and one of the organizers of the more than 2-year fight said a boycott might have to be their next step.
Last fall, the state Land Use Board of Appeals rejected claims by the opponents that the gas station’s inclusion in the retail development at Brosterhous and Murphy Roads violated the city’s development code, and that it should be denied because of environmental and traffic concerns, as well as it not being needed, due to nearby gas stations.
The three-judge Court of Appeals panel heard arguments and issued a two-page opinion last Thursday, affirming LUBA's decision that upheld the city of Bend’s approval.
The court noted that the petitioners claimed LUBA erred in ruling that they had waived arguments based on two sections of Bend’s Development Code, and in rejecting the challenge to the project’s conditional use permit because they did not appeal the earlier site plan approval.
Citing a ruling in a case involving the city of Medford, the court noted that “LUBA was required to give deference to Bend’s interpretation of its own city code.”
“Having reviewed the record and fully considered the parties’ briefs and oral argument, we conclude that neither party has demonstrated that LUBA erred in its interpretation of the law,” the court said.
A leading opponent of the gas station plans, Susi Gaylord, told NewsChannel 21 on Saturday, “We’ll be regrouping to see where we go from here, but our neighbors will definitely be boycotting the gas station.”
Gaylord said the opponents ‘ attorney and one representing the developer, Colvin Oil, “fought ferociously” over whether LUBA erred and should have remanded the matter to the city to reconsider their argument, because the city references a “need” element in their development code – and their argument is that the gas station is not needed.
Gaylord said the city code "has a portion that talks about need as part of the criteria" for a conditional use permit. But she added, "The hearings officer did not address the need issue in his ruling, and many residents brought it up, as well as our attorney."
“We would still have to prove that the city’s interpretation was not plausible,” Gaylord said. “It’s just too big a burden of proof for residents to carry.”
With the lengthy (and spendy) dispute possibly nearing an end, Gaylord said she feels the Bend Development Code “needs to change to be more equitable for residents – it’s too big a financial, legal and time burden for neighbors to fight against seasoned, moneyed developers.”
