Oregon City: 90 year olds' testimony of 'little value' to case
This story has been updated from its original version.
Two 90-year-old women who were born in Oregon City were bewildered by the city's attempts to claim that the area where city officials want to expand a Public Works facility is not public parkland.
Phyllis Gehring and Rita Randall, two longtime residents of the McLoughlin neighborhood, have signed statements to the Clackamas County Circuit Court describing how their personal experiences show that the proposed expansion area has always been public parkland. As children they both played in the area now in dispute, where there was a rudimentary baseball diamond until the area was needed for the war effort in the 1940s.
"I was very surprised when I learned that the city's position in this case is that Lower Waterboard Park is not, and never has been, public parkland," Gehring wrote. "The city's position is contrary to my lifetime of personal experience and familiarity with the park."
Oregon City attorney Bill Kabeiseman said the testimony of Gehring and Randall are of "little value" to the neighborhood's legal case that the Public Works plans should go to a vote of citizens. It is estimated that city officials have spent tens of thousands of dollars in legal fees so far in their efforts to avoid a public vote that could block the expansion efforts.
Rather than "Lower Waterboard Park," the city is calling the proposed expansion area the "Upper Yard" because of its history of industrial uses. On Jan. 23, Judge Katherine E. Weber plans to rule whether a vote of Oregon City citizens is necessary to authorize the Public Works expansion plans, or whether the case involving the city charter's requirement for public votes on non-park uses of parkland will go to a bench trial.
Gehring and Randall are both willing to testify if the case goes to trial. Kabeiseman submitted a 17-page reply to Weber just prior to a Jan. 9 hearing at the Clackamas County Courthouse.
"At no point did any of the use[s] identified in those [Gehring and Randall] affidavits exclude the city from its use of the property — there is nothing the uses identified by either declarant that could 'imply an intention' to dedicate the Upper Yard to park uses," Kabeiseman wrote.
The neighborhood's pro-bono attorney, Jesse Buss, was surprised by the city's position against Gehring and Randall. Buss told the judge that the neighborhood vehemently disagreed with the city's characterization of the testimony having little value to the area's history of being treated as a park. With the city's rationale against Gehring and Randall's testimony coming just hours before the Jan. 9 hearing, Buss asked the judge for more time to respond to the city's legal reasoning. Weber ruled that the back-and-forth between the city and neighborhood needed to end at some point, and said that the neighborhood wouldn't be able to submit anything else.
Weber did rule in the neighborhood's favor in terms of the neighborhood's standing to bring the lawsuit. The city had been fighting to have the lawsuit dismissed on the basis that the neighborhood didn't have standing to bring the case due to jurisdictional issues, but the city abandoned that line of reasoning by Jan. 9.
It wasn't the first reversal for the city on legal issues regarding park votes. In a 2002 legal memo, Kabeiseman himself recommended that the city ask voters for approval of the sale of parks identified in the 1999 Parks and Recreation Master Plan. Voters ended up rejecting — by a wide margin — the sale of the parks not protected by the 1970 charter amendment.
Now Kabeiseman's legal memos are saying that voter approval for park sales is only needed when the parks are identified in the 1970 City Charter amendment or through subsequent written descriptions approved by ordinance. Oregon City officials now say that subsequent master-plan maps showing areas as parkland are not enough to protect parks with the charter requirement to go to voters for proposed non-park uses.
After voters rejected the park sales in 2002, the neighborhood identifies a series of events, the "timing of [which] should not be ignored." In 2004, one month after the adoption of the 2004 Comprehensive Plan Map amendments that identify the disputed area as a "park," city officials directed an architecture firm to pursue public-works expansion at Waterboard Park. Up to that point, Oregon City had been considering several other areas for the expansion.
During the Jan. 9 hearing, Kabeiseman referred to the city's reversal on its legal stance as "irrelevant material." He brought up again and again the fact that when the chapter of city code providing voter protections to parks was approved in 1970, Waterboard Park was defined to exclude the areas north of the road running from John Adams Street and the extension around the armory's south side, an area that has long been used by Public Works.
Kabeiseman told Weber that the 1970 charter amendment was the "best evidence you can get" and "the only time citizens of Oregon City expressed their understanding" of the borders of Waterboard Park. Buss said that the charter amendment was designed to protect parks, not exclude parks from protection. Buss pointed out that the 1970 charter amendment was not an exhaustive list of the city's parklands and provided other methods for designating parks.
Clarification: This story has been updated from its original version to reflect that it's more likely that that the case will be a bench trial in front of Judge Weber, since there's so far been no request by either side for a jury trial.