By Nancy Tannler
Since 2006 The Southeast Examiner has followed the story of the fate of the reservoirs at Mt. Tabor Park.
To many people, the rush by the City to comply with the EPA cryptosporidium ruling (LT2) by disassembling the reservoirs came as a shock and didn’t follow due process. (See most recent archives at southeastexaminer.com: (Public land use past and future 9/1/13; Scrutinizing PWB application process 1/1/15.)
Despite the desire by City Council, the Bureau of Developmental Services (BDS), Portland Water Bureau (PWB) and Portland Parks & Recreation (PP&R) to project an open and transparent process with the citizens, they have fallen short of this goal.
In September 2015, Mark Bartlett requested three legal opinions and a memorandum written by the city attorney to Portland’s mayor and colleagues concerning the limitations on how specific bureau funds could be used. The City Attorney denied access to the above mentioned documents that would in plain language explain this.
Bartlett appealed to the Multnomah County District Attorney Rod Underhill who ordered the city to give him the documents. The state law maintains a 25-year limit on public records exemptions.
This past week, City Council voted 4 to 1 in favor of appealing the decision to deny Bartlett access to public records – documents he believes will show what PWB has proposed and what Council approved, to be invalid and a misuse of public resources.
At the City Council meeting, it was suggested someone read the documents Bartlett is requesting to better understand why they don’t want him to have access to them in the first place.
Commissioner Fish is concerned that the public record law should not trump attorney-client privileges. By producing these documents, it would put the Council at a disadvantage by revealing their hand to other parties who would like to know their legal strategies and possibly use it against them.
The records in question were provided by Dan Coombs, a PWB employee, back in 2002 to members of the MTY (Mt. Tabor Yard) meetings, which PWB and PP&R staff attended and Council funded.
They provide guidance on how the City should maintain and document ownership records for real property with the City Auditors office; that they were to be held in perpetuity.
They provided legal county parcel maps, deed and title records and from the Auditors files that told where each purchase originally came from for Mt. Tabor Park. Here is a link to Coombs’ email: tinyurl.com/gqd8ul3
(According to a 2008 PPR memorandum, the 1959 County property control map acknowledged by both bureaus and the City is the legal map. It distinctly shows separate ownership, as opposed to the tax assessor maps that were used in the applications to consolidate the park into two parcels rather than the original 51.)
The reason that these records the DA ordered the City to produce are important is they could demonstrate that PWB violated land use application requirements specifying that ALL applicants provide legal documentation that proves a clear and unencumbered title when submitting applications to the Bureau of Developmental Services (BDS).
Last year, PWB submitted a Type 3 Land use application for the work to disconnect the reservoirs. They were granted one and given the go-ahead by BDS. (See: Scrutinizing PWB application process 1/1/15)
City Bureaus, like everyone else, are obligated to research, identify, and comply with legal deed restrictions that apply to City-owned properties and to comply with title 33 regulations for applications. BDS is supposed to verify this information and they did not.
In their applications, PWB represented there was only one owner and not two. This relieves them of many obstacles to approval for their proposed project.
On several occasions Bartlett has provided these deed records to Council and BDS staff and was ignored until now.
The DA has ordered the release of the records that will show the agencies attempted to circumvent application requirements that others have to comply with.
PWB as applicant and PPR as co-owner were both aware of the problems with the applications as they had provided the ownership records to Bartlett and the MTY group.
Bartlett has repeatedly claimed that you can’t commingle Portland Parks & Recreation (PP&R) and PWB funds since one is supported by rate payer funds and the other is general fund tax revenue.
This means they cannot consolidate the individual parcels in the park since they are owned by two dissimilar bureaus who are not allowed to commingle those funds.
ORS statutes require that a land use act must be recorded as a new plat and held by Multnomah County with a number, date, and new plat map.
There is no evidence of legal lot consolidation on the original plats of land owned by both the PWB and PP&R other than the decision made by the BDS that it is all one property.
These same issues are now a problem for Council and the bureaus in both parks and water. Bartlett recently provided City staff and Council with deed records, maps, documents and letters between commissioners, staff and those produced by PWB consultants that clearly say there are two owners and that this is a problem they need to resolve.
There are even documents that say reservoirs 3 and 4 are on park parcels and not PWB land in spite of the PWB representations on their applications.
Ownership does matter and now these elusive questions plague the City governance, how transparent they must be and how to get the job done they’ve been hired to do.