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Friends of Hood River Waterfront v. City of Hood River

Court of Appeals of Oregon

May 21, 2014

FRIENDS OF THE HOOD RIVER WATERFRONT, CORIE LAHR, and RICHARD DEREK BELL, Respondents Cross-Petitioners,
v.
CITY OF HOOD RIVER, Respondent Cross-Respondent, and NBW HOOD RIVER, LLC, Petitioner Cross-Respondent. FRIENDS OF THE HOOD RIVER WATERFRONT, CORIE LAHR, and RICHARD DEREK BELL, Respondents,
v.
CITY OF HOOD RIVER, Petitioner, and NBW HOOD RIVER, LLC, Intervenor-Respondent below.

Argued and Submitted March 13, 2014.

Land Use Board of Appeals 2013064.

Steven L. Naito argued the cause for petitioner-cross-respondent NBW Hood River, LLC. With him on the briefs was Tarlow Naito & Summers, LLP.

Daniel H. Kearns argued the cause for petitioner-respondent-cross-respondent City of Hood River. With him on the briefs was Reeve Kearns, PC.

Brent C. Foster argued the cause and filed the briefs for respondents-cross-petitioners Friends of the Hood River Waterfront, Corie Lahr, and Richard Derek Bell.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.

OPINION

Page 1230

[263 Or.App. 82] LAGESEN, J.

Petitioners NBW Hood River, LLC, (NBW) and the City of Hood River (the city) petition for judicial review of a final order of the Land Use Board of Appeals (LUBA). The order remanded the city's decision granting conditional use and preliminary site plan approval for a waterfront office and hotel development proposed by NBW.[1] The issue on review is whether LUBA erred when it rejected as implausible the city's interpretation of certain provisions of its comprehensive plan addressing development in flood hazard areas and remanded to the city to apply those provisions--as interpreted by LUBA--in determining whether to grant the approval requested by NBW. We affirm in part and reverse in part.

I. FACTUAL AND REGULATORY BACKGROUND

A. The City's Plan Provisions and Ordinance Governing Development and Land Use in Floodplains

As required of all cities by ORS 197.175(2), the city has adopted a comprehensive plan to facilitate its compliance with statewide planning goals, including Goal 7.[2] To meet Goal 7, the plan sets forth " policies," " implementation strategies," and " land use designations and standards" regarding land use and development in floodplains, that is, areas subject to flooding.[3] Pertinent to this case, one of [263 Or.App. 83] the policies relating to flood hazards--Policy 2--provides that " [t]he City will continue participation in the Housing and Urban Development National Insurance Program." [4] Another policy--Policy 4--identifies the

Page 1231

steps that the city will take where 100-year floodplains [5] have yet to be adequately mapped:

" In cases where detailed mapping of 100-year floodplains is not complete, the 100-year floodplain will be determined by at least one of the following methods:
" a. The natural stream bank drop-off to the current floodplain.
" b. A field inspection.
" c. HUD Special Flood Hazard area maps.
" d. Soil information from the Soil Conservation Service.
" e. Consultation with both the County Sanitarian and the Public Works Director or other applicable agencies."

The plan's Goal 7 implementation strategies and land use designations and standards provide further guidance regarding land use and development in flood hazard areas. Implementation Strategies 3 and 4 state:

" 3. Lands subject to flooding shall be identified on the zoning map and designated 'FP' (Floodplain) to implement the policies of this Plan. 'FP' is an overlay combining zone.
[263 Or.App. 84] " 4. No permanent structure shall be erected within a flood hazard area unless the structure or the area meets the criteria set forth in the 'FP' overlay zone."

Finally, the land use designation and standard " FLOODPLAIN, 'FP' COMBINING ZONE" sets forth specific criteria designed " to protect the public health, safety, and general welfare [in] flood susceptible areas." It provides:

" The purpose of the 'FP' combining zone is to protect the public health, safety, and general welfare by demarcating flood-susceptible areas. The ['FP'] designation is an overriding zone and is ...

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