By Nancy Tannler
Over the years The Southeast Examiner has printed several editorials by Mark Bartlett concerning questionable land use decisions made by The Bureau of Developmental Services (BDS) and The City concerning Mt. Tabor Park and surplus school properties. (See Scrutinizing PWB application process, January 2015).
Bartlett, along with Friends of the Reservoir, Mt. Tabor Neighborhood Association, and other concerned citizens have challenged the way BDS, Portland Water Bureau (PWB) and the City have handled land use issues surrounding the Mt. Tabor Reservoirs for over ten years.
Most recently the reservoir disconnect project has Bartlett investigating legal documents that support his belief that BDS has not followed detailed land use procedures the City’s own code requires to approve the PWB application for the disconnect.
Bartlett sent a letter along with documents to City auditors Mary Hull Caballero and Drummond Khan, Paul Scarlett, BDS, OMF, Ombudsman Margie Sollinger and cc’d a copy to The Southeast Examiner.
His examination of the aforementioned documents have led him to ask this question: “Is the Bureau of Developmental Services (BDS) providing special treatment to the Portland Water (PWB) as applicants in the proposed work at Mt. Tabor Park?”
BDS accepted as complete, the first Type 2 application from PWB for review for the disconnect project in January 2014 and this was clearly the wrong type of land use review for the proposed work.
The proposed work was valued at only $110,000, limited citizens rights to appeal along with eliminating public hearings and the review authority of the Historic Landmarks Commission (HLC). It appeared that PWB wanted no scrutiny or public interference in the process since they claimed they owned the park.
In response to pressure from citizens, the January Type 2 LUR application was withdrawn and resubmitted in October 2014 as the more appropriate Type 3 LUR. That same work was now valued at $5,000,000.
PWB owns 16 parcels of land surrounding the reservoirs, PP&R owns the other 145 acres in the park. The work planned for the disconnect will involve both PWB parcels and PP&R parcels. Commissioner Nick Fish decided that the park is now City-owned property instead of PWB-owned. Bartlett questions the legality of this decision.
The issue is complicated but the short take is, that in a Type 3 LUR, the applicant is required to provide legal documents in evidence of clear and unencumbered title before BDS can deem the application complete and compliant. In this case, that requirement was waived.
In the new Type 3 LUR application, PWB represents the entire park as a City-owned single consolidated parcel. BDS approved that status. There seems to be no evidence of a legal lot consolidation other than the arbitrary decision that it is all one property.
Extensive documentation provided by Bartlett shows that after the attempt in 2006 by PP&R to sell the maintenance yard and their admittance of a “misstep”, an update to the Mt. Tabor Park Master Plan was made defining how parks land could be used.
Bartlett references this period where it was made clear that bureaus cannot commingle funds of dissimilar bureaus or consolidate properties without proper legal procedures. There are distinct types of ownership in the park; PWB is a revenue-producing bureau, PP&R is non revenue-producing bureau and they need to be handled accordingly.
Bartlett’s conclusion is that BDS is not complying with ORS statute 92.017* on consolidation or Portland’s own Title 33.675* rules on consolidation. BDS and others are ignoring City Charter requirements about segregating water funds from general funds.
Citizens provided BDS with the 1959 County property control map, which has been the legal map issued and acknowledged by BDS, PWB and the City.
They provided the ordinances in which PP&R acquired those parcels initially for park purposes. Some of the original deeds in the park restrict use to park purposes only. BDS never searched for any of these encumbrances before approving the PWB Type 3 LUR application.
The reason this matters is that, if the disconnect at Mt. Tabor Park moves ahead, PWB will expand their utility use beyond the boundaries of the 16 parcels of land they own onto eight PP&R parcels, essentially taking park land without compensation or the proper consideration in applying the land use code.
For whatever reason, BDS does not consider this a cause for review, when in Bartlett’s words, “any other applicant would have to provide title reports and deeds to document that there are no encumbrances on those parcels before they would have their application accepted for processing by BDS”.
When citizens realized BDS regarded the parcels as all one City property, a request for a new use determination was filed on January 7, 2015. Private citizens spent $850 for the proceeding and they expected BDS to provide a written use determination in 4-5 weeks.
This would allow the applicant to meet with staff to answer any outstanding questions, and then to meet informally with the Historic Landmarks Commissioners (HLC) to address concerns about the historical aspects of preserving the reservoirs and any state and local code issues related to the proposed work.
More importantly, this would occur before any staff decision or HLC decisions were reached about the impending use determination at Mt. Tabor Park, so citizen input would be consequential.
As of April 20, 2015, these citizens do not have that use-determination they thought they would have two months ago. Since this time, decisions have already been made about the application. Bartlett said he was told the City Attorney directed staff of the BDS not to answer questions.
The Southeast Examiner spoke with Kimberly Tallant, BDS Supervising Planner. Tallant said a request for a land use determination doesn’t necessarily insure a meeting with staff or the HLC. Although the receipt Bartlett has is marked with EA (staff meeting) and DAR (Design Advice Request).
Tallant also said that, since the property in question is City property, it does not require proof of lot consolidation. That is why BDS has not proceeded with any investigation into the individual properties’ status.
It is Bartlett’s contention that the basis for BDS acceptance of this proposed work in the land use decision is a material error. Citizens have been testifying about this issue for the entire period of public comment.
Another question he poses: “Is the BDS governed by the political outcome desired and not the legal one?”
As it stands now the BDS is continuing to ignore the use determination meeting requested by Bartlett and others.
Bartlett said, “We should have been able to meet with BDS/BPS staff in January and the Landmarks commissioner before they rendered any decision.”
Bartlett holds firm to his belief that consolidation to create a new plat map (division of lots) is governed by state statutes as well as City code. Portland City Council cannot circumvent ORS statutes to accomplish a desired outcome and BDS must comply with those rules.