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LUBA rules on Naito

Ruling cites for errors by city in waterfront decision

The Oregon Land Use Board of Appeals recently issued a ruling that will require the Hood River City Council to address several land use planning “errors” made when the city approved an application to develop a hotel and commercial building complex at the Hood River waterfront near exit 62.

The original appeal, heard by LUBA, was filed by Friends of the Waterfront, opposing a decision by the City Council. Friends assigned five points of potential error to the city’s decision — affirming an earlier planning commission approval — which paved the way for the Naito Development project to proceed under a conditional use permit, with a preliminary site plan.

The proposed Hampton Inn hotel, a 20,000-square-foot, two-story office building and parking lot, is slated to be constructed on land located immediately west of the mouth of the Hood River, adjacent to the Nichols Boat Basin. The site is connected to the Columbia River and separated from the Hood River by a breakwater.

The proposed office building portion of the project would be built on piers that would be submerged at times of ordinary high water on land immediately adjacent to the boat basin.

LUBA sent back three of the Friends’ five assigned points of error for the city to respond to — a process also known as a remand.

Both city staff and legal representatives of the developer provided their responses to city council members, under the LUBA remand at the April 8 council meeting. They were unified in their approach to outline points which denied the alleged errors.

The council members must now determine if city staff and developer responses adequately address the error points under the remand or if additional action to correct their decision-making is in order.

The first sustained error from LUBA asks city council to determine if the City’s adopted Comprehensive Plan, and its subsection Goals and Implementation Strategies, are mandatory approval criteria to be applied to proposed development projects.

This is no small point.

It is clear that city code and ordinances must be applied to development proposals and that those regulations are based on the larger Comprehensive Plan and Goals. What Friends has questioned in this land use decision is whether the current Goals and Strategies listed within the Comprehensive Plan, which lack corresponding code or ordinances, could be have been applied, but were not.

Friends alleges these criteria could have been used to deny the Naito project based on floodplain policies and goals laid out in the comprehensive plan, which are in conflict with the proposed office building.

LUBA has asked the city council to determine if the Hood River Comprehensive Plan and its attendant Goals and Implementation Strategies, Standards and Land Use Designations, should be viewed as mandatory approval criteria that can be applied directly to projects. Or should these provisions be viewed merely as guidelines for the development of municipal code or ordinance — an already accepted mandatory set of criteria.

LUBA affirms that legally, any city may use its comprehensive plan and these subsections as mandatory criteria in individual land use decisions as long as there is no existing legal language precluding the jurisdiction from doing so.

It goes on to cite Hood River Municipal Code 17.06.030(4) which suggests that the comprehensive plan in fact includes applicable approval criteria. LUBA also notes that no Hood River code or plan language renders the comprehensive plan as inapplicable when reviewing individual applications for conditional use approval.

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A second error remanded to the city is tied to a previous action taken by city council members to deny Friends an opportunity to present additional evidence regarding the project under review.

LUBA affirms that the city did not follow Oregon statute when it denied Friends their request to respond to new evidence, while the city held the record open between April 16 and April 24, 2012.

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In a subsection of the fourth alleged error cited by Friends, LUBA found merit in the question of whether Hood River Municipal Code 17.16.040(C) standards have been met with regards to the potential adverse effects of grading on the public storm drainage system at the property.

LUBA asks the city council to determine if adequate evidence has been provided by city staff and the developers demonstrating that grading and storm water plans for the project create “no adverse effect.”

In the future, if the city council finds that the comprehensive plan provisions must or should be used as a mandatory approval criteria in this or future projects, the question of floodplain elevations and conflicts will become central to future hearings.

During the April 8 meeting, Steve Naito acknowledged a new 100-year flood elevation had been confirmed by the Army Corps of Engineers, increasing what Naito’s original site plan assumed was 86 feet up, to 88.2 feet.

The office building’s first floor elevation was revised up to 88.2 feet and presented to the council at that meeting.

This change, necessitating a review of the revised building plan, combined with a below-flood-level access road to the site, will become issues additional affecting the future of the project, even if the city council decides to waive their right to apply their own comprehensive plan to the approval process.

The record remains open until 5 p.m. April 18. Friends representatives and others with evidence corresponding to the LUBA remand points, may still provide testimony or responses.

The city and Naito representatives will then have until April 29 to rebut evidence submitted.

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