Saturday, June 2, 2012/lk
The battle between Friends of the Hood River Waterfront and the City of Hood River is moving forward on two fronts.
Last week Judge John Olson of the Hood River Court of Appeals granted a temporary order allowing the Friends of the Hood River Waterfront to move forward in its appeal of the city planning commission’s approval of the Naito development on the waterfront without paying the appeals fee.
However, the group must post a bond for the appeal fee amount of $3,258 before the June 5 appeal deadline.
The city has scheduled a hearing June 11 for the city council to hear the appeal in public session at 6 p.m. in the city council chambers.
As the appeal moves to the council, which both the city and Friends of the Hood River Waterfront acknowledged is a near certainty, the resolution of the group’s lawsuit against the city over land use appeal fees will not be known for some time.
Judge Olson’s decision to grant the temporary order came during a pretrial hearing. There has been no date set for when the suit will go to trial.
The case may also be complicated by the concurrent jurisdiction of the Land Use Board of Appeals (LUBA). If the city council were to uphold the planning commission’s decision to allow Naito development to build a hotel and office building near Nichols Boat Basin, Friends of the Hood River Waterfront could then appeal to LUBA, while simultaneously arguing their appeal’s fees case to the land use board, whose decision could render any pending court case moot.
Regardless of the ultimate legal outcome, both sides are gearing up for a long fight.
The city claims its appeal fee, which is the same as the land use application fee, is a reasonable attempt to subsidize the work being done in the appeals process and to avoid passing the cost on to city taxpayers. appellants receive half of the fee back if they win the appeal.
Friends of the Waterfront say the appeal cost keeps average citizens from being able to appeal and is unconstitutional under Oregon law, which requires fees to be “reasonable,” and also violates the “Justice without purchase” clause of Article 1, Section 10 of the Oregon Constitution.
Bob Naito claims in a sworn affidavit that he was told by Hood River attorney Brent Foster, who is representing the Friends of the Hood River Waterfront, that if the Naitos dropped a proposal for a cable park with the hotel and office building, the proposal would “sail through”; but if they kept the cable park as part of the proposal, the Friends would seek to block the entire project.
Foster said the meeting that that Naito refers to was confidential but that “is definitely not what was said” and that the Naitos failed to meet environmental standards and that would make the hotel and office building acceptable to the Friends of the Waterfront.
“My clients have publicly been clear that if the developer modified his development to meet city law by adding required setbacks from the river, a true public access path, and came up with an effective plan to prevent water pollution from the proposed parking lot then the upland development could be acceptable if plans for the cable park were dropped. It’s too bad that the developer is attempting to twist my clients’ willingness to be reasonable into something else,” Foster said in a statement.
Foster also feels the city has already made up its mind on which way it will rule in the appeal.
“We don’t have much faith at all that the council will overturn this,” Foster said. “The mayor has been a pretty big active advocate of this.”
Babitz declined to comment on Foster’s allegation.
In its suit against the city over the appeal fees Friends of the Waterfront state they requested that the city either waive the fee or initiate its own appeal of the planning commission’s decision, as it did in the Planning Commission’s decision to deny an expansion to Walmart last year, a decision the council ultimately overturned.
However the city declined to either waive the fee or initiate its own appeal.
Hood River Mayor Arthur Babitz said the city initiating its own appeal in the Walmart case was a unique circumstance and not meant to set a precedent.
“We hated to do it in the Walmart case; the situation in the Walmart case was an extremely unique one … if we left it to them to appeal they would have had control of the calendar and the only day we could have likely heard the appeal would have been the day after Christmas,” Babitz said.
“Staff would have had to work right through Christmas and we would have had to hear the appeal on the 27th and the staff would have had to work that whole next week through that whole next week as well...
“It was all about taking control of the calendar; it wasn’t a precedent we wanted to set, it was a schedule issue. I would not expect to ever see that again; it’s unfortunate that it happened that time,” Babitz said.
In granting a preliminary injunction allowing the Friends of the Hood River Waterfront to proceed with their appeal without paying the fee to the city, Judge Olson found the group had made a sufficient showing “at least with regard to the constitutional challenge.”
However, the injunction is not based on the merits of the case, just that the group has established sufficient grounds to allow the case to proceed.
“Injunctions are not issued commonly,” Foster said. “It’s a case the city ought to take seriously.”
However, the city feels the Friend’s arguments will prove to be flawed on the merits of the case.
The Friends argued that that Hood River has no waiver for low-income citizens, the highest appeal fee in the state among similarly sized cities and a fee which is “significantly higher than other Columbia Gorge cities.”
However, the city responded that its consistent policy has been to not grant fee waiver requests to anyone and that the numbers the Friends used to arrive at the comparative fee rates are incorrect and supplied what it said are correct numbers to the court based on analysis by Babitz and City Senior Planner Kevin Liburdy.
“We get requests for fee waivers 10-15 times a year. It’s our policy to not waive any fees,” said Babitz. “These people showed up with a new organization created the week before and said they are a not-for-profit so we shouldn’t have to pay … simply being a not-for-profit doesn’t mean they should get a fee waiver.”
Friends of the Hood River Waterfront was incorporated as nonprofit with the state on April 17, made its initial appeal to the city for the fee waver April 23 and filed its request for an injunction May 18.
The city’s filing with the court claims that Hood River is not the highest in the state — or the region — in appeal fees, and that groups such as Friends of the Waterfront should be able to pay the fee when distributed amongst its membership.
It also stated that the city is allowed under Oregon law and LUBA standards to set fees and that the fee does not exceed “the average or actual cost” of processing the appeals.
The Friends, though, say where the city ranks in terms of fees is not the ultimate point.
“The city’s appeal fee structure, as it stands now, prevents average citizens with modest incomes from challenging land use decisions,” said Corie Lahr, one of the plaintiffs in the case in a statement through Foster. “The city can’t honestly believe that the city land use process is open for public involvement when their fees are beyond what most people could reasonably pay for an appeal.”
However, city planning director Cindy Waldbridge said the cost of the application fee and the appeal fee is less than the costs the city will incur.
“The $3,258 fee for appealing the Planning Commission to the City Council is less than the City’s actual cost of processing the Walmart appeal and less than the City’s estimated cost of processing an appeal in the Naito matter,” she stated in an affidavit.
The city typically revisits its fee schedule every June and that will again be the case this year — for every department except city planning, which has the fee at issue.
Planning fees will likely be revisited in the late fall.
“We revise all fees in June to take effect July 1, our land use department is working full-time on these land use issues right now … If we want to do anything different it takes a fair amount of homework,” Babitz said. “It’s not the best idea to make changes when something emotional is happening; a lot of people are stirred up by this and it doesn’t hurt to take a bit of time and get some distance before deciding what would be better.”
Whether the current fight will be resolved by then is another issue, but all sides feel they have done enough to make their case.
“We are very excited that the court granted our injunction request against the City of Hood River’s $3,258 appeal fee that basically prevents low- and middle-income people from challenging any city land use decision,” said Linda Maddox, co-chair of Friends of the Hood River Waterfront in a statement through Foster. “It’s sad, however, that the city would spend city money to defend an appeal fee which is so big that most city residents could never afford it.”
The Friends also feel that LUBA will see their point of view on environmental and access arguments against the current plan for the hotel and office building.
“If the council approves it and we go to LUBA we feel good they will overturn the city’s approval,” Foster said.
Bob Naito though said those arguments have already been addressed, and that Naito development is willing to be patient to get the project finished.
“We don’t think there is merit, given the planning commission’s finding and that they addressed every argument the Friends raised, there isn’t any merit to their argument,” he said. “We’re going to build a hotel there; it’s just going to potentially take a little bit longer.”