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Oregon Land Use Board of Appeals says city must hold public hearing on designating historic buildings at proposed expansion site

City officials in Oregon beware: If you try to bypass a public hearing by making a land-use decision administratively, you could face a reprimand and a state-mandated do-over.

Tony KonkolOregon City had planned to demolish some historic buildings at Waterboard Park to make way for a Public Works Operations Center expansion. The state determined that the city was wrong to attempt a shortcut around the necessary Historic Review Board hearing before proceeding with the project.

McLoughlin Neighborhood Association members are celebrating an initial victory from the Oregon Land Use Board of Appeals, which declined to say whether, if the proper hearing were held, the city would then have the right to refuse historic designation requests on public property.

Two nearly identical buildings at the proposed construction site were part of Camp Adair, including possibly the last remaining building that had served as an officers' clubhouse at Oregon's World War II-era training ground of about 130,000 soldiers. McLoughlin neighborhood representatives, wanting to save the buildings and to stop the project at its proposed location, voted unanimously March 2 to nominate adding the buildings the city's list of historic landmarks. A successful historic nomination would trigger more hearings before the buildings could be demolished.

In an April 18 memo, City Manager Tony Konkol said that the city would "refuse to consent" to the historic nomination under a provision in Oregon law that says "a local government shall allow a property owner to refuse to consent to any form of historic property designation at any point during the designation process." The law remains ambiguous as to whether the city can act as both the "local government" and the "property owner" in taking advantage of the provision.

Neighborhood representatives said that Konkol was trying to fast-track the public-works project by looking for a way around the neighborhood's application for historic designation of the buildings, but Konkol says the city has never been in any rush to complete the project.

"The Public Works Operations facility is a long-term project for the future of Oregon City and we will continue to take the time necessary to ensure that we proceed correctly," Konkol said. "The three issues remanded to the city by LUBA are legal issues that the City Commission needs to consider. The tentative date for the City Commission to address the three issues is Nov. 15 during a public hearing."

Konkol said that his intention was to follow the letter of the law in directing a city planner to cancel the hearing.

"The city did its best to interpret and follow the applicable state statutes, in particular ORS 197.772, which requires the city to 'remove the property from any form of consideration' once a property owner refuses to consent to designation," Konkol said. "LUBA disagreed with our understanding of the statute and we will follow LUBA's direction to address the three threshold issues that are raised by the remand... The city looks forward to the opportunity to address the three issues identified by LUBA."

MNA said Konkol's action was ridiculous: The city was acting as both the property owner and the local government in using the provision supposedly designed to prevent private property owners from having historic designations foisted upon their buildings. In MNA's LUBA petition, the neighborhood alleged that Konkol doesn't have the authority to "refuse to consent" to historic designations of public property.

State officials aren't saying whether they agree with McLoughlin neighborhood representatives on the ability of the city to "refuse to consent." LUBA is only saying that Oregon City's Historic Review Board would have to analyze MNA's historic landmarks designation application for the Camp Adair buildings, rather than ignoring the application based on the will of a city administrator.

"The HRB erred by simply suspending its consideration of petitioner's application without adopting findings addressing those arguments," wrote LUBA member Michael A. Holstun in the state's order for Oregon City to reconsider the case.

Asked about what the decision means for citizens seeking to be heard by local government officials, MNA Treasurer Jesse Buss (an attorney who represented the neighborhood pro bono in the case) said LUBA's decision upholds one of the bedrock guarantees of Oregon's land use planning system: that government decision-makers must explain how their decisions comply with the law.

"This LUBA decision will also help other individuals and organizations throughout Oregon that are seeking due process from their local governments," Buss said. "When one group of citizens succeeds in enforcing their right to be heard, the benefits are felt throughout the state."

If the city decides to proceed with the public-works project as planned, neighborhood representatives will likely appeal again, given MNA's unanimous votes for appealing the issue so far and a letter responding to the mayor's claims signed by 65 MNA members. MNA will be relying heavily on a recent case that was a win for historic preservationists, Lake Oswego Preservation Society v. City of Lake Oswego, in which the state's highest court found that "historic" designated buildings cannot be removed from protection simply by request by a subsequent owner. In that case, the Oregon Supreme Court found that Senate Bill 588 — the bill that created the right to "refuse to consent" — originated in response to citizens in in Yamhill County who were concerned about their private property rights.

In a response brief to the neighborhood's claims, Oregon City's attorney said that there's a long history of local municipalities holding hearings and making decisions on properties which are owned by the local municipality itself.

City and neighborhood leaders disagree about the historic value of the buildings, the wisdom of a public-works expansion at Waterboard Park and even the boundaries of the park itself. LUBA did not address whether the Camp Adair buildings that were moved to Oregon City are historic.

Oregon City Mayor Dan Holladay has written that the two Camp Adair buildings are "dilapidated storage buildings," and pointed out that the State Historic Preservation Office (SHPO) found the buildings "are not historically significant." Buss recognizes that LUBA's decision won't guarantee that the historic Camp Adair buildings will be saved from demolition, but he sees it as "a major and necessary step towards that goal."

Konkol said that it has proven difficult to find that the properties convey their historic importance after having been removed from the original historic location in which they were built. Alterations to the buildings have obscured the history of the structures and detracted from their architectural importance, but some original windows remain intact.

Oregon City officials have reached out to SHPO, Adair Living History, Inc., the Oregon Department of Fish and Wildlife, Clackamas Community College and Restore Oregon to investigate the buildings and to find groups willing to take the buildings.

"The city believes in preservation of our historic resources and we are proud to honor Camp Adair," Konkol said. "Though we have been unsuccessful in identifying an entity to care for the structures, we have indicated that we will look into the possibility of a third party moving the buildings to any entity which is financially and logistically able to relocate and rehabilitate the structures."

If the structures cannot be relocated, the city plans to allow the building materials to be repurposed by a third party. Oregon City would give priority to someone who would use the materials to rehabilitate similar structures from Camp Adair. City officials plan to retain pieces of the Camp Adair structures for historic interpretation at the public-works site. 

However, in order to proceed with demolition of the Camp Adair building and expansion of public works, the city will not only have to pass LUBA's muster, but Oregon City will also have to win a case currently in Clackamas County Circuit Court.

In January and February, hearings are scheduled on whether the proposed expansion area is part of Waterboard Park, which would trigger a vote of Oregon City citizens in order to proceed. Oregon City's charter has a provision requiring a vote of the people for non-park uses in city parks. Neighbors have taken to calling the land under dispute "Lower Waterboard Park," while city officials call it the "upper yard" to signify the Public Works department's long-standing intent to expand in that direction.

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