Developer Bob Naito talks to the Hood River Port Commission October 16, 2012 while Friends of the Hood River Waterfront Attorney Brent Foster (in background) waits for his chance to speak.
Photo by Ben McCarty.
Friends of the Waterfront, Naitos cannot agree on terms to discuss settlement
A plan to transform the Hood River waterfront and revitalize a vacant industrial area is in danger of falling apart before it even gets off the ground.
The proposal calls for allowing a hotel and commercial building project to be built on the south end of the Nichols Boat Basin while leveraging increased urban renewal tax funds from the hotel and other development to make infrastructure, public access and habitat improvements to the area.
The plan calls for Naito Development, which is building the hotel, to drop plans for a recreational cable park in the basin and for environmental advocacy groups to drop a land use appeal and potential lawsuits blocking the construction of the hotel.
Bob Naito discusses lack of progresses on Nichols basin plan with Port commission
Brent Foster discusses Friends of the Waterfront position on Nichols basin plan with Port Commission
At Tuesday’s Port Commission meeting developer Bob Naito and Brent Foster, attorney for Friends of the Hood River Waterfront and several other groups who have threatened suits against the hotel, appeared before the commission to explain why they had not even been able to agree on terms of a meeting to begin to resolve issues over the hotel.
In front of a commission which was often both exasperated and frustrated with a lack of progress, each side blamed the other for difficulties; both saying their side was the one that wanted to see the plan move forward.
Naito said that the Friends’ insistence on confidential settlement talks was holding up any attempt to resolve the issues.
“At this point we are at a loss why the Friends are unwilling to discuss this matter in public. What is it that they do not want the public to know?” he wrote in a memo to the port commission.
Foster contended that confidential settlement talks were a standard part of negotiating settlements.
“We’ve agreed and are willing to sit down; we asked for one thing, that the basic norm for a settlement be agreed to.”
The lack of movement on a solution comes at a delicate time for the port and its evaluation process on the proposed cable park.
At its previous meeting, the port elected to shelve continued staff time on the cable park and devote it to evaluating the basin proposal developed by Port Commission President Jon Davies and Hood River Mayor Arthur Babitz.
At that time Naito attorney Steve Naito said that unless an agreement could be reached with Friends of the Hood River Waterfront to drop a LUBA appeal and several potential lawsuits over the hotel, the Naitos would ask for the cable park process to continue.
Bob Naito contended that there was nothing left to negotiate and that the terms were simple: The Naitos would give up on the cable park in exchange for the Friends dropping the LUBA appeal and the lawsuits.
He said the other items Foster raised could not be settled.
“We’re not moving the building,” he said.
Naito said that any changes to the location of the building would cost the developers “six figures” through design, architectural and landscaping changes and that even with all that, the revised plan would then have to go back to the planning commission.
“I would object if our position gets portrayed as legitimate as ours; this thing is really becoming unfair. It’s not their deal. They didn’t come up with this plan to finance exactly what they wanted and didn’t have the smarts to say ‘Let’s use the hotel taxes to pay for it.’ Now it’s like children having a snit,” Naito said after the meeting.
“We’re the ones that gave up the cable park, for heaven’s sake. There are a whole lot of really disappointed people in Hood River who really wanted to see that happen.”
City Planning Director Cindy Walbridge confirmed that a change as significant as moving the location of the commercial building would trigger a commission review.
Conditions placed on the approval by the planning commission give leeway for the director to review and approve “minor” changes but that “major adjustments” require a “new or amended application.”
“[I]f the road moves, it moves the traffic, circulation sidewalks, etc, so I would consider it a major amendment,” Walbridge said in an email. “Because of the scrutiny on this application I would automatically take it back to the hearing body.”
At Tuesday’s meeting Port Executive Director Michael McElwee stated that the port was on a short list to apply for an ODOT grant for around $1.2 million to conduct bike and pedestrian access improvements to the basin; but that there would need to be some movement on resolving the issues between the Friends and the Naitos if the grant application were to have a chance at success.
However, the port is content to let the two sides figure out their own problem, at least until the next port meeting in two weeks.
“The parties have heard the importance of getting together and working it out and if the port needs to take a more active role we’ll discuss that,” McElwee said.
Among potential options could be having the port become a party to the negations, which Foster invited them to do along with the city, or attempting to find a way to mediate the differences between the two sides.
McElwee did add after the meeting that the port would be putting in an application regardless of any settlement between the two sides.
No settlement agreement appears close, as both sides have not yet even agreed on how to start talking one another.
“(Foster) wanted an agreement that the content of our settlement talks would be fully confidential to the fullest extent … We are not prepared to enter into any kind of secret negotiation over our upland development,” Naito said. “If we can’t start building next spring — if we start negotiation on the height of the hotel, the color of the building, the number of parking places — we got back to square one and if we are back to square one we are back to 2014 to start, and if that’s the case we might as well just go ahead with the LUBA appeal.”
Foster responded that he was not prepared to enter any non-confidential negotiations with the Naitos after having discussions (which he believed were confidential) show up in the press and in court documents during the city approval process for the hotel and commercial building.
“That meeting … the first five minutes was spent with myself, Linda Maddox, Bob Naito and Steve Naito discussing the issues of confidentiality and that if we were going to have any other settlement negotiation that you have been a part of — or any other organizations here have been a part of you — come in with an expectation of what you say in that meeting does not leave the room,” Foster said. “I don’t know if I’d call it the foundational rule but a basic rule of a productive settlement … that is just common sense negotiation.”
After the meeting Foster added that even if negotiations were confidential, it would not prohibit any settlement agreement from being public.
“We will insist any settlement be entirely public, Foster said. “But we have no interest in a Mickey Mouse process where the Naitos get to walk out of a settlement meeting and get to misrepresent what we are saying as they have already done. That is a recipe for failure.”
Among the items Foster listed that needed to be negotiated and settled were the setback of the commercial building, which the Friends contest is located within the basin itself and want moved back 75 feet; a public access path in front of the buildings and treatment of storm water runoff from the parking lot.
Naito said that even if building location were negotiable and Friends pledged not to appeal a subsequent planning commission decision, that would not stop someone else from doing so, and that it was a risk and investment he was not prepared to make.
If he determines negotiations with the Friends are not possible, Naito said he would rather see the LUBA appeal go through.
“If you start running out the clock it’s not going to be too much longer before the LUBA appeal is just as sufficient for us,” he said.
While Naito said the placement of the building and other issues were not negotiable, Foster said the Friends, Northwest Environmental Defense Fund and Center for Biological Diversity would not surrender their right to appealing federal or state regulatory decisions on the project that they felt did not enforce adequate environmental protections.
That drew the ire of Port Commission member Fred Duckwall, who told Foster it was not “your job to enforce” the endangered species or clean water act.
“It absolutely is my job to enforce it. I understand your position but it is a public document and the Corps asked for public comment and they either do their job and enforce the law, and if they enforce it, great; and if they don’t, my clients have the right to say ‘Hey, you didn’t do your job right.’
“If we want to reserve the right to challenge the decision later we don’t have to include a buffer in this, but that doesn’t get you anywhere; because if in the end they make a decision and it’s a bad decision my clients are not just going to say ‘Oh, okay, we trust the Corps to do their job,’” Foster said. “Nothing against federal agencies, but often they don’t always do exactly what the law requires.”
On that point, everyone in the room could agree.
However, they don’t appear ready to agree on anything else, and with both sides dug in on their positions, time may be running out on the alternative plan for the basin.
The Naitos say they are willing to wait for the opportunity of a LUBA decision to get the project done if necessary.
“We’re not pulling the plug; we have a track and LUBA appeal has its own timeline. It ends in a decision,” Naito said.
“We are absolutely convinced that the land use decision that the planning commission made will get approved by LUBA and eventually we’ll have a decision.”