LUBA tells city to revisit waterfront

LUBA considers appeals of land-use rulings based on alleged “errors” potentially committed by the governmental body in applying land use regulations; in this case, the City of Hood River was the governing body.

The city council had approved the project, which would place a four-story Hampton Inn and a 20,000-square-foot commercial building at the south end of the Nichols basin on the Hood River Waterfront. The environmental nonprofit Friends of the Hood River Waterfront appealed the decision to LUBA.

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In the first assignment of error, Friends contended that the City did not give proper consideration to Hood River City Planning Goal Seven. In its appeal, Friends stated particular concern over Goal 7 Policy 1, which states:

“Floodplains will be maintained as natural drainage ways. 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 ...” (through a variety of stipulated methods).

In its remand decision, LUBA stated that the city council must “directly address the question of whether ... those HRCP Goal 7 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 determined to be mandatory, the city must demonstrate that the proposal is consistent with those provisions.

LUBA points out that Friends made a weak case in its first assignment of error but went on to say “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.”

LUBA also remanded the decision on Friends’ third assignment of error that protests against the city’s refusal to reopen the record for a Friends response to three items of newly submitted evidence.

These new evidence included: a letter from ODFW expressing concern for the effects the development would have on fish in the basin; four studies related to the effects of storm water 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 responded in its order that the planning commission assumed petitioners simply wished to submit more opposition evidence rather than rebut the new evidence. The city, then, in error, refused to reopen the record allowing Friends to respond.

Friends contended the planning commission’s refusal to reopen the record is inconsistent with Oregon Statute (ORS) 197.763(6)(c). LUBA agreed with petitioners.

The statute states:

“Any participant may file a written request with the local government for an opportunity to respond to new evidence submitted during the period the record was left open. If such a request is filed, the hearings authority shall reopen the record pursuant to [ORS 197.763(7)].”

LUBA also partially upheld the fourth assignment of error in the case, tied to 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 significant portions of the city’s rebuttal argument to the water quality claims relied on those late-submitted documents.

LUBA’s remand stated:

“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 reiterates that the city council must determine if the criteria under Goal 7 are “mandatory approval criteria” or less-stringent “considerations” in granting conditional use and site plan approval in this case.

If the City determines they are mandatory, the city council will need to ensure that the proposal complies with the HRCP Goal 7, potentially affecting the location of the proposed buildings.

LUBA also ordered the City to reopen the record to allow the petitioners to respond to new evidence that was submitted before the record in the case closed on April 12, 2012.