Wednesday, May 16, 2012
City Council did not waver: no waiver will be allowed in the case of a citizen-based appeal of the Naito Landings project.
Council decided unanimously Monday to deny the request for waiving the appeal-filing fee for either portion of Naito’s two-pronged project land use request in the former Nichols Boat Basin.
The council acted on attorney Dan Kearns’ advice that the city has no authority to waive the fee. Further, the councilors agreed that any consideration of the city’s overall fee structure is best left to a planned review of the fees, due to take place in the council’s next two meetings.
In the case of the Naito appellants, the appeal fees would be $3,258 for the hotel component and $3,258 for the cable park — the same amount Naito Development will have paid to submit the applications.
The council acted on a memo from Dan Kearns and Planning Director Cindy Walbridge that was a response to a request made April 23 by Brent Foster, Hood River attorney representing Richard Derek Bell and Corie Lahr and a newly formed local nonprofit — Friends of the Hood River Waterfront. Bell, Lahr and FOHRW have filed suit against the City of Hood River over the proposed Naito Landing project, citing a constitutional right to judicial access unimpeded by “unreasonable” fees, under the “Justice Without Purchase Clause” of the Oregon Constitution.
Foster had asked three things: that the city waive the fees, that it appeal the Naito decision itself, as it had done in the Walmart expansion application last winter, and that it ask Planning Commissioner Jennifer Gulizia to recuse herself from the matter.
Foster told the council Monday that the existing city fee structure means “You are shutting down not only access to city government but also access to the courts.” The right to appeal to government is a tenet protected by the Oregon Constitution, Foster said, adding that fees in the neighborhood of thousands of dollars creates a “haves versus have-nots situation.”
“The question before you,” Mayor Arthur Babitz said, “is do you feel like granting a waiver to this group? I don’t see you have any authority to grant it unless you call up the appeal on your own.”
The Walbridge/Kearns memo said, “in the case of the first Naito application (for the hotel complex) the city has until June 22 to render a final decision. Consequently, the scheduling problem and time constraint that existed in Walmart does not exist …”
Council member Kate McBride said she would be in favor of hearing the appeal itself, because of the number of people interested and the potential impact on public space.
“That feels like a waiver, or an equivalent action,” said Councilor Laurent Picard, and when the rest of the council agreed, McBride did not press the matter, saying she at least wanted to air the idea to see where the rest of the council stood.
The request pertaining to Gulizia was dismissed after a short discussion by the council, who agreed that Gulizia has followed disclosure rules and should not be made to remove herself from the process.