Hood River Cable Park - CGKA Needs Your Support

NaitoDevelopment · Since 25 Apr 2011 23 Posts Portland

March 14, 2012

Heather Staten
Hood River, OR Via Email heatherstaten@gorge.net

Dear Heather:

I have enjoyed our several conversations about our Nichols Landing project and the opportunity to show you the Willamette River Greenway designs that we built at McCormick Pier and Albers Mill. I received your comments and video on our project and wanted to take this opportunity to address your concerns. Your issue seems to be that our commercial building will block the view of the boat basin from the Pedestrian Assess Way (PAW).

You imply we are motivated to find “what is the cheapest and easiest way to meet the City’s requirements for a Pedestrian Access Way?” I can tell you that this could not be farther from the truth. We have devoted a great deal of thought to finding the best way to provide the “vital middle link in the chain connecting the east side of the waterfront (the pedestrian bridge, the Marina, and access to downtown) and the west side (the proposed top-of-bank path along the west side of the boat basin, the Event site and Waterfront Park).”

As you know, the current PAW runs behind the gas station and along the ODOT access road next to the freeway. The “cheapest and easiest way to satisfy the City’s requirements for a PAW” would have been simply to build a sidewalk on the existing PAW alignment following the ODOT access road. We could then have built the hotel and commercial buildings at the edge of the US Army Corps of Engineers (USACE) flowage easement with parking between the buildings and the access road and PAW. That is the “cheapest and easiest way” which would have met the City’s PAW requirements, but no one would have been happy with the solution.

Instead, we have been working with ODOT, the Port of Hood River, the City of Hood River and the USACE for over a year to develop a better alternative. We began with the concept of relocating the access road and PAW from against the freeway to the edge of the flowage easement. In simple terms, this moved the people closer to the water and the cars next to the freeway. We are bearing 100% of the cost of building the new access road as well as leasing a portion of the old access road from the Port and ODOT to use for parking.

We are meeting the City’s requirements for the PAW (see Exhibit A) with the construction of the sidewalk on the water side of the access road. By the way, nowhere in the requirements are we prevented from constructing the commercial building to the north (water side) of the PAW. Beyond meeting the letter of the law, we believe we are meeting the spirit of the PAW requirement by wrapping the building with a deck which allows year-round public access that will not be flooded and an unimpeded view of the boat basin from the edge of the water.

Your video mischaracterizes the design by representing that the view from the PAW will be blocked for the length of the building.

As the arrows show, the views from the decks around the building are unimpeded, protected from the freeway and are significantly closer to the water.

Your opinion appears to be that these decks wrapping around the building should not considered part of the PAW.

“But in real life, they won’t function like that, the impression will be of walking onto private property. Café seating is planned for the restaurant and coffee shop. Most pedestrians will feel uncomfortable picking their way through a forest of tables in order to navigate around the building.”

To the contrary we believe that the public will feel welcome to walk around the building especially on summer days. The glass storefront and roll up doors opening out onto the deck are an obvious invitation to window shop or stroll around the building. One has only to walk down NW 23rd and 21st or in the Pearl District in Portland to see many examples of sidewalk cafes (23 Hoyt, Papa Haydn, Jo Bar, Café Mingo, Piazza Italia, Paragon and others) where pedestrians share the sidewalk with café patrons on sidewalks narrower than our restaurant’s seating area and deck. Rather than feeling “uncomfortable picking their way through a forest of tables” the retail shops and sidewalk cafes on 23rd Avenue contribute to the pedestrian experience and the vibrancy of the neighborhood.

I believe Hood River’s waterfront will be enhanced by providing a variety of experiences along the PAW. During the winter, people will appreciate having at least one place between the hook and the Best Western where one can escape the rain and enjoy a cup of coffee, hot chocolate or perhaps lunch. During the summer, we hope the deck around the building will provide an active, vibrant and fun place to shop, dine or just people watch very much as the sidewalks on NW 23rd are used. And while I suspect the roller skaters and cyclists will prefer to use the access road and sidewalk on the south side of the building, I'm sure your big wet dog will be welcome.

On this issue, we have a difference of opinion and simply have to respectfully agree to disagree.

Sincerely,

Bob Naito

Enclosure: PAW Condition of Nichols Landing Zone Change to C-2

EXHIBIT A

PAW CONDITION OF NICHOLS LANDING ZONE CHANGE TO C-2

Provide for an interconnection to the proposed pedestrian access way (PAW) that will connect the waterfront to the downtown. Pedestrian Access Ways (PAW) shall be constructed to the following standards:

a. For PAWs that are not sidewalks on a street, the PAW shall be no less than twelve (12) feet wide where feasible and constructed of an all-weather material.

b. For Paws that are sidewalks, the sidewalks shall be constructed in accordance with this section.

c. Night lighting shall be provided along the PAW.

d. The PAW shall be ADA accessible.

e. The PAW may be cantilevered over water as an alternative to land-based walkways.

f. Offset seating shall be provided at periodic intervals. Seating areas may be located along and within the PAW and the Columbia River Waterfront Corridor.

g. The PAW shall be landscaped. This should include a variety of trees, shrubbery, and groundcover at least eight feet wide on the landward side where possible.

h. Safety considerations for PAW users shall be a principal consideration in the siting and configuration of the PAW.

i. For PAWs that are required as part of a site plan a condition of approval shall be included identifying where the PAW will be located and who will be responsible for the construction, maintenance, and landscaping, and stating that the portion of the PAW to be constructed shall be completed prior to issuance of a certificate of occupancy.

j. Paws shall be public or private. If the PAW is private, a recorded easement in a form approved by the City must be provided, and the PAW must be open to the public and shall not be restricted to public access except as allowed by City rules and regulations pursuant to Section 17.21.100 (5) (I). Public Paws shall be dedicated to the public in the same manner as public streets.

Heatherhoodriver · Since 12 Mar 2012 5 Posts Kook

NaitoDevelopment · Since 25 Apr 2011 23 Posts Portland

scooter · Since 23 Apr 2005 99 Posts hood River

I oppose this plan because it uses public water space to profit only a few. The public should have use of all public water space and the basin should not be developed for a few people. This would set a very dangerous precedent for private profiting on public waters.

I'm not here to troll or to get involved in a discussion but rather to let you know that there are some of us who think this is a very bad idea. The environment on this forum has not been friendly to those of us who disagree with this plan and I felt the need speak my peace.

Also, here is a letter to the Hood River News and the City planning commission from a friend who is a water rights attorney here in Oregon.

She wanted me to post it for you to read.

Hood River Cable Park
To the editor:
The Hood River planning commission will meet Monday night to discuss the installation of a kitesurfing 'cable park' in Nichols Basin. The park will be a commercial enterprise and interfere with wildlife in the basin and other recreational uses.
The planning commission's report on the matter states no legal authority under which a private park may be built in water that is part of the Columbia River. In fact, no legal authority exists.
Under the Public Trust Doctrine, a hallmark of water law that dates back to the time of ancient Rome, the state governments hold public navigable waters in trust for all citizens, not just one private group or owner. The Magna Carta cited this doctrine and outlawed fishermen's weirs that were blocking the free naviagation of rivers. The U.S. Supreme Court, in Illinois Central Railroad adopted it into law and overturned the city of Chicago's decision to grant part of its harbor to the private use of the railroads.
The Public Trust Doctrine is a pillar of our democracy and our country's legacy of allowing unrestricted access to our bountiful natural water resources. Our country has seen a move away from social and economic equality and the private ownership society has left many of us behind. Yet the Supreme Court has decided that the rivers and riverbeds still belong to all citizens equally, without extending privileges to one group over another. Unfettered public access to the rivers for all recreational uses is one part of our heritage as Americans we must keep sacred. Allowing private owners to develop public waters for private benefit is both illegal and contrary to the ideals of our democracy.
Sincerely,
Liz Hallock, J.D., Esq.

Blazeheliski · Since 30 Mar 2011 659 Posts Mosier Addicted

Inept_Fun · Since 14 Apr 2005 1417 Posts Hood River XTreme Poster

How is a man made boat basin considered a natural part of the columbia anyways. Oh yeah and a kitesurfing cable park? It might at least help your cause if you sounded like you knew what you were talking about before writing such a letter. Also the land is not public, it is privately owned, so I don't really think your argument holds up there.

scooter · Since 23 Apr 2005 99 Posts hood River

Blazeheliski · Since 30 Mar 2011 659 Posts Mosier Addicted

What about gated private boat marinas then? Private owners have developed the land next to the water so that only members can enter from the shore. They have also placed tall pilings into the ground under the "public" waterway to anchor the docks that only members can access on the public waterway. Aren't the pilings placed in ground in the public space just like a cable tower would be?

Before the private marina owners placed these pilings into the ground for their own self interest, you could pilot your boat straight through that section of waterway. Now you have to go around it because you are not a member. If cable towers are placed into the ground of the public waterway, then you will have to go around that section of waterway also. (even though most people never even went into that part of the water anyway because it is a dead end. And it turns into a pond when the water gets low enough)

Inept_Fun · Since 14 Apr 2005 1417 Posts Hood River XTreme Poster

scooter · Since 23 Apr 2005 99 Posts hood River

boardrider · Since 05 Apr 2006 1034 Posts Ventura, CA XTreme Poster

Tried to stay out of the conversation as I'm not local . Probably still should, but I really love HR & hope your plans for the cable park go thru as you hope they do

I'm sure you guys supporting Naito development have spoken with these guys extensively & trust their intentions are honest.

Development of the waterfront is a tricky thing to get wind sport users to support.. It seems that a good strategy to get locals to support your development desires would be to promise them something they want.

Business is business, the #1 goal is to make money, and things happen. Estimates are off for the hotel & money runs out. Permits aren't issued. Maybe they just change their mind because the projected profits from the cable park just aren't there.

I'm just throwing it out there as 'devils advocate': Would you still have the same feelings about this development if no cable park was built ?

forrest · Sun Mar 18, 12 6:48 pm

Derek, you're stretching. The water is only navigable because no one has gone through the process of changing it. What's you're motivation anyway? Are you a SUP boarder or kayaker? Why not think of compromises that can work for everyone. Cable park riding will have a huge multitude more users (us, me, my daughter, my wife, my friends, my family from out of town) than anything that happens in there now. I would argue we have a right to enjoy the water using the cable park just as much as you have a right to navigate it. I would argue what you're saying is just a selfish attempt to keep it to yourself.

There is no "private" water where a cable park could go in the western united states, or it'd already be a done deal.

scooter · Since 23 Apr 2005 99 Posts hood River

Forrest,

As you said it IS navigable and it will be very difficult to change that. There are many many legal precedents that have shown that.

What's my motivation? I am for the open access of public water ways and the basin as of now is part of a public waterway. I have not argued against its benefits. I have only argued that it is illegal to build one on a public water way. Pure and simple.

You said it yourself...if this was legal there would already be a cable park here in the west built on public water ways. There is reason I have yet to find a park built on a river or public water way in the US. The privatization of public water ways goes against some very stern and protected laws and legal rights that have been established generations ago for the protection of our rivers.

I am for the freedoms given us in the country to use our public waters and I am against the privatization of those waters for the use of only a few of the public members.

You do not have the legal right to use a public water way in such a way that excludes the general public and that is what a cable park will do. Also, where do you get your data on cable park usage numbers against the usage of fisherman, swimmers, kayakers, sup folk, canoeist, bird watchers, and the like. I reject your assertion that it will serve more people until I see some numbers.

This is not a simple issue but I have given a very simple and straight forward argument. This is a water use rights issue for me and nothing more.

Consider these definitions from the Oregon State Attorney's office.

our state water use rights...
http://www.oregon.gov/DSL/NAV/yourrights.shtml

Which rivers are state owned....see the Columbia on that list?
http://www.oregon.gov/DSL/NAV/navigwaterways.shtml

I truly hope we get a cable park in the area but only if it is put on private property.
Thanks for the dialogue.
Derek

SalmonSlayer · Since 27 Nov 2005 648 Posts Addicted **CGKA Member**

Excerpt from http://dnr.alaska.gov/mlw/nav/nav_policy.htm#CRIT

NAVIGABILITY CRITERIA DISPUTES

Because of differing legal interpretations of court navigability decisions, several aspects of the criteria used by the state to determine navigability have been disputed by the federal government. As a direct result of these criteria disputes, many waterbodies considered navigable by the state have been determined non-navigable by the federal government.

The major criteria dispute has been over the type or purpose of the transportation required to establish navigability. The federal government has asserted that a waterway must be used, or capable of use, for transporting commerce to be considered navigable. Other, "noncommercial" transportation uses are not considered sufficient to establish navigability. In this context, the federal government has claimed that the only relevant "commercial" transportation is the distribution of goods for sale or barter, or the transportation for hire of people or things. The federal government has admitted that professionally guided transportation on Alaska's rivers, lakes and streams constitutes commerce, but nevertheless has argued that the waters are not being used as a navigable "highway" when recreation is involved, but rather more as an amusement park. The federal government has therefore claimed that waters used only for commercial recreation are legally nonnavigable even though they may be navigable in fact.

scooter · Since 23 Apr 2005 99 Posts hood River

http://legal-dictionary.thefreedictionary.com/Navigable+Waters

The vast body of federal regulation concerning navigable waters frequently gives rise to litigation, and in many cases the courts have the difficult job of determining whether particular bodies of water are navigable (and thus subject to the law or regulation in question). Lakes and rivers are generally considered navigable waters, but smaller bodies of water may also be navigable. Attempting to address years of problematic litigation, the U.S. Supreme Court in 1979 created four tests for determining what constitutes navigable waters. Established in Kaiser Aetna v. United States, 444 U.S. 164, 100 S. Ct. 383, 62 L. Ed. 2d 332, the tests ask whether the body of water (1) is subject to the ebb and flow of the tide, (2) connects with a continuous interstate waterway, (3) has navigable capacity, and (4) is actually navigable. Using these tests, courts have held that bodies of water much smaller than lakes and rivers also constitute navigable waters. Even shallow streams that are traversable only by canoe have met the test. bold added me

Commerce is only one of a few criteria by which the Federal government judges the navigability of a body of water. By the 1974 Supreme court ruling in 1979 the Basin would qualify as a navigable body of water.

Ultimately the Army corps of Engineers will rule on the "water" usage of the propose plan. Not the city or the port. It's not up the them. they do not have the authority to rule on it's legality.

If the Army corps of Engineer decide it is not navigable then then the courts will have to rule if someone files a lawsuit.

Again, I'm OK with this plan if it is in fact not on public waters.
bold added by me.

SalmonSlayer · Since 27 Nov 2005 648 Posts Addicted **CGKA Member**

I suppose we can cut and paste all day long, but, nothing will be settled here.

While I appreciate consistency in the application of the law. I also hope that common sense will prevail in this unique situation.

Hmmmm
"Our country has seen a move away from social and economic equality and the private ownership society has left many of us behind."