LUBA is busy with HR cases

Naito development decision expected next week

The Oregon Land Use Board of Appeals seems to enjoy keeping Hood River in suspense.

After requesting an extension of up to seven days in order to render a decision in the case of Friends of the Hood River Waterfront vs. the City of Hood River, the board requested an additional week’s time to make a decision on whether or not a proposed hotel and commercial building project can be placed on the city’s waterfront.

LUBA is no stranger to requesting extensions when it comes to decisions involving Hood River. Last year it requested numerous extensions before remanding the City of Hood River’s decision, to allow an expansion at Walmart’s Hood River store back to the city, for further consideration.

In the waterfront development case, LUBA is expected to issue a decision on Friday, but Hood River City Attorney Dan Kearns said, “I’m just not going to say anything” when asked by Hood River Mayor Arthur Babitz if he thought that the board would indeed have a decision by then.

The city approved a plan by Naito Development to build a Hampton Inn and neighboring commercial building at the south end of Nichols basin in the Hood River waterfront. Advocacy group Friends of the Hood River Waterfront appealed the decision, saying the city had not properly addressed storm water runoff issues and impacts on wildlife habitat in the basin, and that the commercial building would be situated partially in the basin below the ordinary high-water mark.

LUBA heard oral arguments from both sides last month with attorney Brent Foster arguing on behalf of Friends of the Hood River Waterfront and Kearns and Naito attorney Steve Naito arguing on behalf of the city and the developers.

While both sides await LUBA’s ruling in the case, it is likely just the first step in what figures to be a lengthy process. If the decision is remanded back to the city for additional consideration, the matter would require another public hearing. Even if the matter is not remanded to the city, any LUBA decision is likely to be appealed to the Oregon Court of Appeals.

Hood River is already involved in a second go-around with LUBA over the Walmart case. After initially voting to allow the expansion in December 2011, the city reversed course when LUBA remanded the case.

LUBA requested that the city determine how its municipal code applied to vesting rights cases and whether or not Walmart had lost its right to expand after the city code on non-conforming uses had changed.

In a 4-3 vote the council voted that Walmart had lost its right to expand. The council had been deadlocked at 3-3, before council member Kate McBride, who had recused herself from the process, was called back in through what is known as “the rule of necessity” to break the tie.

Walmart chose to appeal the decision back to LUBA on three assignments of error. The first was that the council failed to have McBride properly disclose ex parte, or outside, contacts about the case when she was brought back on the council to vote.

The second issue was Walmart’s claim that McBride was biased against Walmart and that she had done the right thing by recusing herself from voting on the Walmart expansion both as a planning commission member and then later as a city council member.

The third claim is that the city improperly applied its own ordinances and code to the decision.

Briefs in the case are due March 21, and Kearns said that it was likely LUBA would hear the case the second or third week of April, meaning that the decision on the second appeal would likely be due at some point in May.

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The City is not the only local governmental entity waiting on a LUBA decision.

A hearing on the Hood River County Commission’s decision to overrule the county planning commission and nix a planned park near the corner of Barrett Road and Alameda Drive is scheduled for March 26.

The park was planned by the Hood River Valley Parks and Recreation District and had received approval by the planning commission. However, orchardists Fritz and Joanne Von Lubken appealed the decision, saying that the park would permanently remove valuable agricultural land from the county.

The land the park was to be situated on is zoned as exclusive farm use; however, parks are a permitted use of exclusive farm use zones.

Parks and Recreation appealed the county’s denial to LUBA. A decision on that case should be rendered by the end of April.

While the sides wait for a decision, the county has begun a process to identify potential locations for sports fields in the county. Several commissioners cited the fact that that the proposed Barrett Park did not significantly alleviate the county’s shortage of sports fields, while simultaneously taking away agricultural land, as being among their reasons for denying the project.

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