OpEd by Mark Bartlett
Is the Bureau of Development Services (BDS) providing special treatment to the Portland Water Bureau (PWB) as applicant in approving the proposed work at Mt Tabor Park?
To this citizen, it seems there are quite a few questionable activities that require further scrutiny in the proposed applications to disconnect the Mt Tabor Reservoirs from the water supply.
In January 2014, BDS accepted as complete and compliant with code, an application submitted by the Water Bureau to disconnect the Mt Tabor Park reservoirs.
This was submitted as a Type 2 Land Use Review (LUR) – clearly the wrong type of land use review for this proposed work.
Through this application, it was represented that:
1) PWB owned the entire park (they do not and knew this, as did BDS)
2) the value of the proposed work was approximately $110,000.
By approving this proposal as a Type 2 LUR (which must be under $407k) it virtually precluded the public from any opportunity to review and then comment, and removed citizens’ rights to appeals along with a review by the Historic Landmarks Commission (HLC). PWB wanted no scrutiny or public interference in pushing this proposal though.
Responsive to pressure from citizens, with the obvious flaws in the compliance code and title concerns, the January Type 2 LUR application was withdrawn in March and resubmitted in October 2014 as the more appropriate Type 3 LUR.
3) For both applications, BDS used an old 2003 finding when it determined the use and definition in January 2014.
That finding was for different work (demolition of the reservoirs) that was not similar to the current proposed work. It was said by BDS in the pre-application summary
of March 26 that the use was not the same, yet this critical finding and definitions were not even discussed. This was simply not credible.
4) Under the development standards listed in that 2003 finding, the application should trigger a conditional use review.
BDS does not mention this much less require that the applicant to show how these nonconforming requests meet the code.
Requests to BDS for the intake sheets showing just how the staff were able to approve the first application as complete and compliant with the code was deemed confidential. BDS refused to release this information in response to a public records request in October, at first denying it existed then later acknowledging it did but was for internal staff only.
Curiously now in this new application, according to BDS, that same proposed work is now valued at nearly $5,000,000. How was it approved in the first application at $110,000?
In their October staff report on pages 11 and 12, BDS twice acknowledged that the use finding upon which this LUR application was based, no longer was the same. It had changed, yet BDS says it was not even discussed.
This means the entire staff report in its conclusions is questionable since the LUR process starts with the use and definition for any property, then applies the zoning
and code to see how the land can be used and what is allowed on that land.
PWB submitted and BDS accepted title and zoning information from Portland Maps. Both agencies knew this information was incorrect, but found no problem with
the application as submitted, then accepting it as legally correct as required for this LUR process.
In this new Type 3 application of October, PWB changed their representation from that they alone own the park to that the City owns the park.
Mt Tabor Park consists of 51 individual parcels, some of which are owned by PWB (51 acres immediately surrounding the reservoirs),
and the balance of the 196 acres are owned by PPR, and the City of Portland.
This type of land use review requires that the applicant provide legal documents in evidence of clear and unencumbered title when submitting applications before they are deemed complete by BDS. However in this case that requirement was waived.
For any other applicant, they 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.
Because someone at City Hall says so does not meet this legal requirement. Documents in evidence from a title company must be provided.
How did BDS approve this application without complying with this requirement?
PWB represents that the proposed work would not change the use on those parcels which they do not own.
The installation of 48” pipes surely is a different use, and creates a defacto easement for which the PWB could at any time in future access without another LUR process, even though they do not own those parcels.
Not only does it change the use of the land, but essentially creates a legal easement with a right to access at any time for any work they deem necessary.
There is no written preservation plan or commitment by PPR or PWB to continue to keep water in these reservoirs or fund their upkeep in an ongoing fashion.
The concern of citizens here is due to Title 33.445.330 Demolition of Historic Resources in a Historic District part (b) Exempt from Demolition review.
In 2006, PPR attempted to secretly sell the Mt Tabor maintenance yard to Warner Pacific. The paper document in evidence of this deal was discovered and the sale stopped, but not before it became clear PPR was trying to circumvent the public process to demolish the listed buildings at the yard to facilitate the sale.
After meeting certain requirements, the director of BDS or commissioner over the bureau could unilaterally declare the facility a health and or safety hazard and approve it for demolition without the normal type 4 LUR public process for demolition.
With no written assurance or preservation plan in place, which is not subject to political whims and year to year budget jockeying, this should be a concern for all citizens.
The current application should be withdrawn, then resubmitted after a new and correct use determination is voluntarily completed by BDS.
A new LUR should be proposed by PWB that complies with requirements and code along with a written preservation plan that has been accepted by State Historic Preservation Office and the HLC.
Then a new time line would begin for any BDS decision. Public comments should be considered with further hearings by the Historic Landmarks Commission.