Board strikes down Beaverton resident’s appeal against In-N-Out drive-thru

September 28

PORTLAND, Ore. (KOIN) — An attempt to block a fast food chain’s development of a Portland metro-area burger joint has been struck down.

On Aug. 19, the Oregon Land Use Board of Appeals rejected a petition against a new In-N-Out Burger in unincorporated Washington County. The order affirmed an independent hearings officer’s prior approval of an application for the restaurant on 10565 SW Beaverton Hillsdale Highway.

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A Beaverton resident filed a notice of intent to appeal the decision in early May.

According to LUBA’s final order and opinion on the case, the petitioner argued the previous decision would allow the restaurant to operate during hours that are not permitted in Office Commercial (OC) Districts. The proposed site is split between a Commercial Business District (CBD) and OC District — the latter of which prohibits drive-thru queuing.

However, the board determined the hearings officer has authorized “parking, maneuvering, and cross-circulation access” for non-conforming use in the OC. The officer already established the drive-thru lines should remain in the CBD.

The petitioner also argued the previous decision was not supported by substantial evidence, which is defined as “evidence a reasonable person would rely upon to reach a decision.” For example, the resident claimed drive-thru lines at In-N-Out’s Keizer location have exceeded what was initially anticipated in the chain’s traffic analysis.

They further argued the traffic analysis was based on research from a consulting services firm, rather than public testimony. LUBA said this analysis was addressed in In-N-Out’s first appeal for the restaurant, but the petitioner did not participate in that stage of the process.

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“Petitioner therefore did not challenge the hearings officer’s findings that the expert analysis is more compelling and thus given more weight than statements from the public or explain why the expert analysis is not substantial evidence on which a reasonable person would rely,” the board said. “Petitioner may not raise this assignment of error now.”

Residents are no longer permitted to file an appeal against the burger chain. The company’s application is still approved, but “subject to conditions of approval,” according to county documents.

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