LUBA hears Nichols dispute

SALEM – Both sides made their pitch to the Oregon Land Use Board of Appeals Thursday afternoon in a case that will determine whether or not a proposed hotel and commercial building project on the Hood River waterfront can proceed, or if it must be sent back to the city for another look.

Attorneys for Naito Development, the City of Hood River and Friends of the Hood River Waterfront presented before a pair of LUBA board members in Salem to alternately argue that the city had had violated land use code or that appellants had no grounds to stop the project.

Naito Development, acting as NBW Hood River LLC, is seeking to place a Hampton Inn, along with a commercial building, at the south end of the Nichols Basin. The basin is an artificial lagoon created along Hood River’s waterfront with the Columbia River.

Attorney Brent Foster, arguing on behalf of Friends of the Hood River Waterfront, which has appealed the city’s approval of the project, stated that the city ignored state land use goals regarding flood plains, did not address storm water control at the site and failed to properly reopen the record on the case to allow opponents to address new evidence.

Foster stated that the commercial building on the site would be located within a 100-year-flood plain and below the high-water mark of the Columbia.

“There is no evidence to support it being anywhere but under the high-water mark,” he told LUBA board members Michael Holstun and Tod Bassham.

He read from a document which had been submitted by the Naitos stating that the building was envisioned with water going under it “like a pier.”

During his turn for argument, Kearns said the exact site plan for the building was not finalized yet.

“This is a preliminary site plan within inches, within feet, within tens of feet and this building and the site plan are not pinned down ... this building will move.”

One of the Oregon State Planning Goals and Guidelines states that after identifying flood hazard areas local governments shall “Adopt or amend, as necessary, based on the evaluation of risk, plan policies and implementing measures consistent with the following principles:

a. avoiding development in hazard areas where the risk to people and property cannot be mitigated, and;

b. prohibiting the siting of essential facilities, major structures, hazardous facilities and special occupancy structures ... in identified hazard areas.”

Foster contended that the city did not properly review the site plan in context of the flood plain, storm water management engineering plans, or grading plan of the site and said the city did not have qualified individuals assess the environmental impact of the project.

“There is a total lack of evidence on which to base any kind of feasibility finding ... we literally have one document,” Foster said. “From this one document a city inspection engineer in very general comments on the ability to apply the storm water standard, and there is no reference to the standard.”

He also argued that having the city building inspector determine how the project met storm water management criteria was insufficient to determine whether runoff would be properly managed.

Kearns countered by saying that the evaluation performed in Hood River was similar to those done across the state.

“You won’t find quantitative criteria for water quality; I don’t think you will in any local government storm water standards . . . what petitioners would really like is a clean water act evaluation or an endangered species act evaluation; in fact, the city was presented with 60-day notice of violation on both of those federal laws; the local law just doesn’t address those water quality type issues.”

He also added that it was not the city building inspector who performed the evaluation, but Gary Lindemeyer, the city’s construction inspector.

“He inspects these large-scale construction projects, after reviewing their plans and evaluates them against the city storm water criteria. That’s his job; it’s what he does day in and day out,” Kearns said. “We never said he is a storm water expert or a grading expert or an erosion control expert. His job is to evaluate plans and compare them to the city’s storm water standards or grading control standards.”

Kearns said Lindemyer testified that it was feasible to achieve storm water control to manage water quality at the site in a “number of” different ways.

He also added that he did not see how Foster and Friends of the Hood River Waterfront could find the city’s findings regarding the flood hazard potential of the site to be “inadequate.”

He stated that the site is “not found as a significant flood hazard” on FEMA maps of the area and that “it’s a totally managed flood level, managed by the Bonneville Dam ... I’ve never been in an instance where I’ve had to administer a flood hazard ordinance where the incidence of flood is totally managed by the federal government.” Both sides had 30 minutes for argument before the LUBA board members, with Foster, the petitioner in the case, given 10 minutes for rebuttal at the end.

The Board is scheduled to issue its ruling in the case March 1, but requested, and received from both sides permission to extend that decision by an extra seven days if necessary.

Once the ruling is issued, either side may take the case to the Oregon court of appeals.

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