Friday, March 15, 2013/lk
The Oregon Land Use Board of Appeals ruled Friday morning that the City of Hood River must give more consideration to a decision to allow construction of a hotel and commercial building on the Hood River waterfront.
LUBA remanded the decision back to the city in sustaining two of the five assignments of error outlined by Friends of the Hood River Waterfront in appealing the city's approval of the project.
The city council approved the project, which would place a four story Hampton Inn and 20,000 sq ft commercial building at the south end of the Nichols basin on the Hood River Waterfront and an opposition group, Friends of the Hood River Waterfront, appealed the decision.
In the first assignment of error, Friends contended that the City did not give proper consideration to Hood River City Planning Goal Seven. In their appeal, Friends stated particular concern over Goal 7 Policy 1, which states
Floodplains will be maintained as natural drainageways. No permanent structures other than dams and bridges shall be permitted which inhibit flood stream flows or endanger other property
and Goal 7 Policy 4, which states:
In cases where detailed mapping of 100-year floodplains is not complete, the 100-year floodplain will be determined by at least one of the following methods:a. The natural stream bank drop-off to the current floodplain. b. A field inspection. c. HUD Special Flood Hazard area maps. d. Soil information from the Soil Conservation Service. e. Consultation with both the County Sanitarian and the Public Works Director or other applicable agencies.”
In their remand decision, LUBA stated that the city council must "directly address the question of whether, based on the text of the cited HRCP Goal provisions, viewed in context, those HRCP Goal provisions are mandatory approval criteria or considerations that the city council is required to address in granting conditional use approval for the disputed proposal. If they are, the city must demonstrate that the proposal is consistent with those HRCP Goal provisions."
LUBA points out that the Friends devote "little attention to the actual text of the cited Goal 7 provisions and makes almost no effort to explain why that text is sufficient to make the cited Goal 7 provisions mandatory approval criteria or mandatory considerations in approving this request for conditional use approval" but that "[t]he HRCP provisions quoted above are directed at structures, development and floodplains and flood hazard areas. It is not clear to us why those HRCP Goal 7 requirements are inapplicable here. Given the lack of a direct response from the city council in its findings concerning the above-quoted HRCP Goal 7 provisions, and the lack of any argument that petitioners failed to raise the issue of the applicability of those HRCP Goal 7 provisions below, we sustain the first assignment of error."
Site of proposed hotel/commercial building development
LUBA also remanded the decision on Friends third assignment of error, which protests the city's refusal to reopen the record for response to three items of evidence submitted: A letter from ODFW expressing concern for the effects the development would have on fish in the basin; 4 studies related to the effects of stormwater runoff on fish in the basin and comments relating to the potential harmful effects of a cable park in the basin on fish.
The cable park portion of the development was eventually dropped after the Port of Hood River refused to offer a lease for that portion of the project.
LUBA stated in their order that:
the planning commission assumed petitioners simply wished to submit more opposition evidence, rather than rebut the new evidence noted above, and refused to reopen the record. Petitioners contend the planning commission’s refusal to reopen the record is inconsistent with the statute. We agree with petitioners.
In doing so they cite ORS ORS 197.763(6)(c), which states:
Any participant may file a written request with the local government for an 20 opportunity to respond to new evidence submitted during the period the record 21 was left open. If such a request is filed, the hearings authority shall reopen 22 the record pursuant to [ORS 197.763(7)].
LUBA also partially upheld the fourth assignment of error in the case, regarding water quality impacts of the development. LUBA said it could not fully rule on the matter because the city attempted to supplement the record to LUBA after the deadline had expired, and significaznt portions of the city's rebuttal argument to the water quality claims relied on those documents.
That evidentiary uncertainty makes it inappropriate for us to attempt to resolve petitioners’ evidentiary challenge here. On remand, once the record is closed, the city council will have an opportunity to determine whether it remains of the view that the HRMC 17.16.040(C) “no adverse effect” standard is satisfied in this case with regard to water quality, and to adopt any supplemental findings or conditions it believes are necessary to support that view.
In the conclusion of its order, LUBA re-iterates that the city council must determine if the criteria under Goal 7 are "mandatory approval criteria or considerations that must be considered in granting conditional use and site plan approval in this case. If they are, the city council will need to ensure that the proposal complies with the HRCP Goal 7 Policies, Implementation Strategy and Land Use Designation and Standard."
It also ordered that city re-open the record to allow the petitioners to respond to new evidence which was submitted before the record in the case closed on April 12, 2012.
This story is developing and will be updated.