Division Street Dairy Queen Appeal: In Favor of the Applicant

Just last week I was wondering about the results of the February 25, 2026 appeal regarding the Division Street Dairy Queen and its drive-thru. On Friday afternoon, a reader sent me the decision made by the Hearings Officer—and it was in favor of the Applicant, Mohan Grewal. In the words of Hearings Officer Marisha Childs, “The Appellant did not prevail in this appeal.”

Background of the Dairy Queen Appeal

You can see our previous article on the situation from December 2025, which basically has to do with whether or not the owner of the Dairy Queen on SE Division Street has the right to install a drive-thru on the property.

The Proposal: “This site is currently vacant and was formerly developed with a Dairy Queen restaurant with a drive-thru facility. The Applicant requests Determination of Legal Nonconforming Status Review to confirm if they retain rights under Zoning Code Section 33.130.260.C.2 to reconstruct a drive-thru facility on the site.”

In this process, the only goal is to see if the scenario is in compliance with the Zoning Code Section. It was pointed out to those at the Appeal hearing, “This case is about facts, not feelings.”

Relevant Approval Criteria: “To be approved, this proposal must comply with the approval criteria of Title 33. The relevant criteria are in Zoning Code Section 33.258.075.D.” This is on page 14 of this document.

The Dairy Queen Appeal Hearing

The hearing took place on Wednesday, February 25, 2026 via Zoom from 9am to 1pm. After that there were three other dates on the timeline allowing interested parties to submit new evidence, rebut that new evidence, and for the Applicant to add a final argument.

• February 25 to March 4, 2026, anyone could submit new evidence to the record.
• March 4 to March 11, 2026, anyone had an opportunity to rebut any new evidence to the record.
• March 11 to March 18, 2026, the Applicant could submit their final argument.
• The record closed on March 18, 2026 at 4pm.

17 people testified at the hearing, including the Appellant, Robert Galanakis, who represented himself; and Fred Braden, who is from Dairy Queen of the Pacific Northwest. 201 emails (and one mailed letter) were submitted from interested parties, including private citizens, the Appellant, Oregon Walks Plans and Projects Committee, and the Mount Tabor Neighborhood Association. It is unclear in the Exhibits section of the document, who supported the DQ drive-thru and who did not.

Additional sections in the document include Analysis, Conclusions, and Decision. I am going to do my best to summarize and interpret what was presented—you can read the full decision document (sans exhibits) in this PDF.

The Dairy Queen Appeal: Analysis

It starts with the statement that existing drive-thru facilities are allowed in Portland (like at the newest Case Study that will open in the old King Harvest space, or really any fast food drive-thru). You can even move them, rebuild them, and expand them on the property. But, if a drive-thru is discontinued for three continuous years, it can’t be reestablished. It’s done, “even if the structure or materials related to the use remain.”

Evidence had to be submitted by the Applicant—the “standard” list of evidence includes things like utility bills, income tax records, building/land use/development permits, and leases. This evidence serves “to show that the situation was allowed when established and was maintained over time.”

As for the Determination of Legal Nonconforming Status Review (Code 33.258.075), the legal status of the nonconforming situation will be certified if the review body finds that:

• The nonconforming situation would have been allowed when established; and
• The nonconforming situation has been maintained over time.

Permit approval time and expirations, and a timeline of permitting activity for this property were also highlighted, starting with the Applicant applying for a building permit for the new Dairy Queen and new drive-thru in 2018; to the building permit for the new Dairy Queen issued in 2022; to the appeal filed in 2026.

Conclusion

This is how the Conclusion statement started out:

“This case begins and ends with the plain language in the code: how much money the Applicant has spent on this matter is irrelevant; whether fast-food is “unhealthy” is irrelevant; whether idling cars at a drive-thru cause / increase the incidence of asthma is irrelevant. This should not be interpreted to mean these are or are not true as that is not the issue, rather for the sake of this land use review, these are not relevant to the ultimate question: does the Applicant’s proposal meet the applicable approval criteria.”

The Hearings Officer added, “The role of the Hearings Office is to follow the law / code,” as well as, “the result may not always feel ‘fair.'”

Points of Note

The Hearings Officer recognized that the DQ has a long history in the neighborhood, starting in the 1950s. Later that decade and into the 1960s was when the drive-thru was added. At that time, drive-thrus were permitted in Portland (satisfying approval criteria 33.258.075.D.1.a).

The Appellant argued that too much time had lapsed—more than three years, from 2019 to 2022—between the Applicant obtaining the demo permit and his new building permit, which “represented a period of discontinuance and /or cessation of operations.” That “the right to rebuild a drive-thru was lost.”

Demolition was completed by May 2020. However, as I mentioned earlier, the Applicant applied for a building permit in 2018 and the permit was not issued until 2022—during that time period it was in pending status. And part of the reason it took its sweet time was … the COVID pandemic.

COVID and Extensions

Here’s that part about COVID affecting this permitting process.

“The Applicant applied for the building permit in 2018 (18-210965-000-00-CO) and then COVID happened—-which threw a wrench in all aspects of life and business, including City of Portland operations.

“After applying for the building permit, Applicant did not receive an active building permit until 2022.

“A myriad of delays occurred throughout Applicant’s permitting journey—ultimately, who bore the responsibility for the delays is not critical for this matter, but the City consistently offered extensions. When those extensions were granted, they proceeded at every juncture as a restaurant with a drive-thru, consistent with the System Development Charges (SDC) paid for a quick service restaurant with a drive-thru.

“Because the evidence clearly establishes that the use has been maintained over time with the active building permit, further extensive analysis of the term discontinue or cease operations are unwarranted.”

Strict Interpretation

The Hearings Officer indicated that the Appellant was seeing this situation through a strict interpretation of the code, which would mean that too much time had indeed passed to re-institute the drive-thru.

There were a few things to consider: the status of pending for the Applicant’s building permit; and the list of “standard” evidence submitted by the Applicant. As well as taking into account all the communications the Applicant had with the City during the process, “wherein the bureau was following and applying its own land use code provisions.”

The Dairy Queen Appeal Decision

Here is the full text of the Decision:

“The Appellant did not prevail in this appeal.

“The Hearings Officer ADOPTS the findings of the PP&D Staff Decision approving Applicant’s proposal to reconstruct a drive-thru facility at the subject site at SE Division St. and SE 55th Avenue, under the approved and issued building permit (18-210965 CO).

“The Hearings Officer finds the evidence supports a finding that the Applicant has maintained use of the restaurant with a drive- thru over time by having an active “building, land use or development permit” as is expressly provided in the code as standard evidence to show use has been maintained over time (33.258.038.B.6).”

Some Quotes

I reached out to Rob Galanakis, Mohan Grewal, and Fred Braden for comment. Here is what Rob had to say:

“The decision entirely ignores key parts of the appeal and reasserts the permitting department’s interpretation with even less justification. Advocates are used to fighting tooth and nail to force our city to follow through on its own policies, so we’re currently weighing an appeal.”

And here is what Mohan said:

“It’s a win for local businesses in Portland. It really wouldn’t have been possible without the effort and support from our Mt. Tabor neighborhood, for which we are incredibly thankful. We look forward to opening as soon as possible and serving our community.”

I will include a statement from Fred if/when he sends it our way.

Another Dairy Queen Appeal?

That’s right—another appeal is possible. While this decision can’t be appealed to the Portland City Council, it can be appealed to the Oregon Land Use Board of Appeals (LUBA), as per Oregon Revised Statute (ORS) 197.830. Among other things, ORS 197.830 requires that:

• An appellant before LUBA must have presented testimony (orally or in writing) as part of the local hearing before the Hearings Officer; and
• A notice of intent to appeal be filed with LUBA within 21 days after the Hearings Officer’s decision becomes final.

And it sounds like Rob and his team are considering it.

If this Land Use Review is not appealed and is approved, the final decision will be recorded after the last day to appeal by the Portland Permitting & Development. As for an expiration date, “If approved, this approval expires three years from the date the final decision is rendered unless a building permit has been issued, or the approved activity has begun.”

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I will be curious to see if the Appellant chooses to appeal to LUBA. But in the meantime, I suspect Mohan is eager to start doing work on the site. I’ll keep an eye on it.

Dairy Queen [projected opening unknown]
5605 SE Division Street, Portland
Dairy Queen website