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City gives final Nichols sign-off, Friends intend to sue

If you have enjoyed the thrilling summer-blockbuster land use drama concerning the proposed hotel and commercial building on the Hood River waterfront, you’re in luck. A sequel, and likely a trilogy, have the green light.

The Hood River City Council made its approval of the Nichols Landing hotel project official Monday night, with every council member except the absent Carrie Nelson voting to deny an appeal by Friends of the Hood River Waterfront and approve the project.

As soon as the council finished its vote, Friends attorney Brent Foster was passing around a press release and a letter to the city and developer Bob Naito of NBW Hood River.

The letter states that Friends of the Hood River Waterfront and the Center for Biological Diversity intend to file a lawsuit against Naito and the City of Hood River, contending the project violates the Endangered Species Act.

Part three of the saga was scheduled to begin Tuesday, when Hood River Mayor Arthur Babitz was slated to address the Port of Hood River Commission.

Babitz is expected to request that the port commission give the proposal for a cable park in the Nichols boat basin a yes or no vote this summer.

Babitz read from the statement he was expecting to deliver to the commission:

“Only you can determine with any authority where the public benefit (in the basin) lies,” Babitz said in his statement to the port.

Babitz asked the council for permission to deliver the statement, and whether it was the city’s position to the port decision-making authority on the cable park before the city would decide on the matter.

“It absolutely is” the city’s position, said council member Ed Weathers.

The council approved the Findings of Fact and Law document prepared by city staff with only a few modifications.

One of the largest was to require Naito to apply for an Army Corps of Engineers permit for a secondary public access walkway below the normal high-water mark of the Columbia River before an occupancy permit would be granted for the hotel.

The council also stated that the path must be at least 8 feet wide, hard, made up of material “consistent with Corps requirements” and be maintained on a regular basis by the property owner.

If the Corps of Engineers denies the permit, the deck of the hotel building would be used as the secondary public access walkway, with a requirement being made for the deck to be accessible by the public 24/7 after concerns were raised by pathway advocate Heather Staten when no such provision was included in the initial draft of the document.

“I think that should address most of the concerns,” Weathers said of the access changes.

After the council voted to approve the amended document, and as Foster was passing out the notice of an intent to file a suit against the project, Babitz read a personal statement on the proceedings.

“There are two very important bodies of law brought into play by this appeal: Oregon land use laws and federal environmental protections. Both bodies of law are subject to frequent criticisms as regulations which restrict economic progress and both are frequently subject to legislative attacks,” Babitz said.

“As someone who strongly supports both of these bodies of law I have struggled with how to say this several times. But here is the best I can do right now: Please don’t wrap things in the Endangered Species Act that aren’t. It hurts the Endangered Species Act, it validates the attacks of its enemies.

“Please don’t cast things as state land use issues that are not; it hurts Oregon’s land use protections and validates the attacks of its enemies.

“Be honest with your neighbors and argue things for what they are; not what will have the greatest tactical effect. Your decision on how to make your arguments has costs for all of us and those costs may be far greater than you think.”

After the meeting, Babitz said he did not know Friends of the Hood River Waterfront would be threatening to file a suit based on the Endangered Species Act.

“There are real costs to people’s actions and I think it’s important as a government that we make it clear to people what those costs are,” Babitz said after the meeting. “I wanted to share my personal thoughts on this.

“In land use you spend a lot of time listening to people listening and talking in a very prescribed manner on very specific manner and I felt the need to break out of that boundary just a bit and give some personal thoughts and help the public understand what the costs are of these appeals.”

The suit against the City was filed by Erin Madden, an attorney for Cascadia Law P.C. of Portland, along with Foster, on behalf of Friends of the Hood River Waterfront and the Center for Biological Diversity, a Tucson, Ariz.,-based environmental activism group.

The suit contends that the development will cause a “take” of multiple runs of salmonids listed under the Endangered Species Act and claims the city and Naito did not provide protection for salmon in the basin from construction work on the building, stormwater runoff or habitat removal.

The lawsuit notice gives the city and/or Naito 60 days to either withdraw or modify the project, or obtain an “incidental take” permit.

In its Findings of Fact document, the city states that stormwater runoff would have to be collected and meet city water quality and volume control requirements.

The document also “take[s] official notice of the likely presence of fish, including state and federally listed endangered fish species, in the Nichols Boat Basin.”

“It’s incredible that a developer who likes to talk about green development would propose putting such a major development in important salmon habitat without even the most basic protections for water quality or fish,” said Noah Greenwald, endangered species director in the Portland office of the Center for Biological Diversity in the press release.

“The idea that you could put up a new commercial building in a key salmon area in the Columbia River isn’t realistic.”

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