Saturday, December 21, 2013/lk
A proposed development of a hotel and commercial building on the Hood River waterfront has again been remanded to the Hood River city council by the Oregon Land Use Board of Appeals.
The group Friends of the Hood River Waterfront appealed the city council’s approval of the project from an earlier Board of Appeals (LUBA) remand on the basis that the city did not properly address concerns over building the project in a 100-year flood plain.
After previously sending back an earlier council approval of the project, LUBA again returned the decision to the city saying that “the city must ensure that the proposal complies with (Hood River Comprehensive Plan) Goal 7, 3 Implementation Strategy 4, which requires that: “No permanent structure shall be erected 4 within a flood hazard area unless the structure or the area meets the criteria set forth in the ‘FP’ (Flood Plain) overlay zone.”
The remand is the latest in a number of setbacks the project has faced. After initially being approved by the city council, Friends of the Hood River Waterfront appealed the decision to LUBA. While that decision was pending, the Port of Hood River elected not to enter into lease negotiations for a recreational cable park in the Nichols Boat basin. The cable park had initially been part of the project proposal, but was withdrawn from the proposal submitted to the city council pending lease negotiations with the Port. LUBA then remanded the decision to the city on the basis that further consideration was needed for the text and context of Hood River Comprehensive planning goal 7.
After the city reviewed and re-
affirmed its approval of the project, it was again appealed to LUBA, which again returned the decision on the grounds that the city needs to properly apply it’s comprehensive plan on floodplains.
The next step in the process is likely to be an appeal of the LUBA ruling to the Oregon court of appeals, as attorney Steve Naito filed notice of intent to seek judicial review with the court immediately after the LUBA ruling last Friday.
At the court of appeals level the primary question will not be how the city interpreted it’s flood plain code, but whether or not LUBA was correct in not giving deference to the city’s interpretation of its own code.
“They started with 23 issues and we are down to one,” said Naito Development head Bob Naito of the court addressing whether or not LUBA erred in determining that the city was not due deference in its code interpretation. “I don’t know how many more times you can parse this one.”
The court of appeals could elect to uphold LUBA’s decision and remand the decision to the city, overturn LUBA’s decision, or remand the decision back to LUBA for further consideration.
In any event, the decision would not come back to the city for some time, as a court ruling would not be likely until the spring. The city must now decide whether or not to have city attorney Dan Kearns, who filed a brief in defense of the city’s position during the LUBA process, do the same in a court appeal.
Despite the ruling, Bob Naito said that he has no intention of abandoning the project.
“We’ve got a substantial investment in architectural and engineering fees and getting street vacated and negotiating property acquisition with the port,” he said. “So at this point we are going to keep pushing.”
In its arguments to LUBA, the city contended that there are two different flood plain designations, one that is governed strictly by the Hood River Municipal Code and another which is governed by both the Municipal Code and the city comprehensive plan. The municipal code sets out a list of mitigating factors to allow for construction in a floodplain while the comprehensive plan is much more strict, allowing for only “Non-habitable structures, barns, or other structures; Boat docks and landings for recreational use, not including structures; Parks and playgrounds, not including incidental buildings.” It allows for other uses as long as those uses meet a stringent list of conditions.
LUBA sharply disagreed with the city’s interpretation, saying that the city’s interpretation was incorrect enough to not be entitled to the typical LUBA standard of deferring to local municipalities interpretation of their own code, even if LUBA believes there is a better interpretation.
The LUBA ruling states: “[U]nder the city’s interpretation, Goal 7, Implementation Strategy 4 (that it only applies to property that is already zoned FP) has no effect and runs afoul of the ORS 174.010 rule that “where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.” The city’s interpretation of Goal 7, Implementation Strategy 4 also reads in the limitation “already zoned FP,” and thereby “insert[s] what has been omitted” in violation of the same statute. The city’s interpretation is therefore implausible and is not entitled to deference[.]”
The ruling also adds “there is simply no text in either the HRCP or the HRMC that supports the city’s contrary interpretation that there are two types of 100-year floodplains—one type of floodplain subject to HRMC 15.44 only and one type of floodplain that is subject to both HRMC 15.44 and the FP Combining Zone.”
Friends of the Waterfront hailed the decision.
“The City has tried to force this development through for years instead of just requiring the Naitos to plan a project that can actually be built,” said Friends president Linda Maddox in a statement. “It’s really time for both the Naitos and the City to rethink the wisdom of placing a development like this in a floodplain along the Columbia River.”
In setting up its rejection of the city’s interpretation of the Hood River Municipal Code and Comprehensive plan, LUBA referred to the state supreme court case of Siporen vs. City of Medford as the standard the board had to follow when becoming involved in code interpretations by local governments.
Siporen overturned a LUBA decision on the matter with the court stating that LUBA had erred in deciding the city of Medford’s reading of its code was “implausible.”
In prefacing it’s decision to remand the city’s approval of the Nichols landing project, LUBA referenced the plausibility argument laid out in the Siporen case: “(T)he city was required to determine whether the plan requirements petitioners identified are ‘applicable’ as conditional use approval criteria. The city’s interpretations of its comprehensive plan to determine which plan requirements are applicable as conditional use approval criteria are entitled to deference so long as its interpretations are “plausible.” Id. at 4 266. If the city’s interpretation is plausible, LUBA must defer, even if LUBA believes there 5 is a better interpretation.”
In the end, LUBA determined that the city’s arguments did not meet the standard of plausibility.
Friends of the Waterfront was confident that Court of Appeals would find the same way and back the LUBA decision.
“LUBA was just applying what just makes common sense, if you are going to plan a major development in active floodplain you should apply your flood plain rules to the project,” said Friends attorney Brent Foster. “We don’t think it makes sense to put a 20K commercial building and an 88-room hotel in a flood plain of the Columbia river . . . in this case the city didn’t even apply its own rules.”
Foster said he was not worried about the appeal to the Court of Appeals, saying “we don’t have any concern about that appeal, we’re very confident that the court of appeals would affirm applying common sense floodplain protections to a major project.”
The city of Hood River has 21 days from Dec. 13, when the Naitos filed their request for judicial review with court to file a brief in support of it’s position. That means a special meeting may be required before the new year to give Kearns permission to file one.
Any decision from the court would likely not be issued for several more months.