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Voter approval would have been necessary if expansion area defined as parkland

This story has been updated

Clackamas County's Circuit Court has green-lighted Oregon City Public Works plans for an approximately $22 million expansion of a maintenance yard next to Waterboard Park without the voter approval that would be necessary if the expansion area were defined as parkland.

PHOTO BY RAYMOND RENDLEMAN - Clackamas County Circuit Judge Katherine E. Weber listens to Phyllis Gehring's tesimony during the trial.In the March 29 decision, Circuit Judge Katherine E. Weber rejected arguments from longtime residents of Oregon City who have seen the area as a park based on some of the city's own actions. The McLoughlin Neighborhood Association had sued the city in an attempt to force a vote of citizens, pointing to numerous maps that the city had produced over the years that labeled the proposed Public Works expansion area as parkland.

A McLoughlin neighborhood resident since 2005, Gordon Wilson was called to the trial as a witness to how the city has in recent years put up "No Trespassing" signs, piled more debris and revised maps of the disputed area to go from a park to a non-park.

"The actions of the city clearly show that the disputed area has not been, either impliedly or expressly, dedicated as a park," Weber wrote in the decision.

Not much longer will any part of the area be accessible to dog walkers and nature seekers. Weber's decision means that the city will now be able to fence off the entire area for the exclusive use of Public Works employees and construction of a new multi-story office building.

Never before has the city built anything for Public Works use in its "upper yard" but city officials now propose to fence off the area for exclusive use by Public Works.

Lifelong Oregon City resident Phyllis Gehring, 91, testified at the trial that the proposed fencing would be a disservice to the public. Gehring told the judge how neighborhood kids since the 1930s had used the area to ride bikes, play games, identify trees and hike around.

"We need more trails and natural areas [that] should really be appreciated rather than destroyed," she testified. "I didn't think that the city had a right to take a park without a vote of the people."

Oregon City attorney Gregory J. Minor said that the will of citizens or a group of citizen-advocates has no relevance on the city's intent to dedicate the land as a park.

"The intent is exclusively on the owner of the land," Minor said during the trial. "There was public pressure… but that is not the legal standard."

Although the city attempted to have evidence thrown out as irrelevant during the trial, Weber didn't see any reason to exclude evidence, because it wasn't a jury trial. Weber said she was confident in her ability to provide the proper weight to the historical evidence based on its reliability.

In addition to hearing testimony of longtime residents, she reviewed newspaper articles and the city's own master-planning documents discussing the city's intention to develop the disputed area as a park. Oregon City even prepared an official survey in 1935 that clearly labeled the disputed area as part of "Waterboard Park," and that survey was recorded in the Clackamas County real property records.

"Although some neighborhood residents may have used this area as a park and may have used it as such, their perception is insufficient," Weber wrote. "The labeling of the disputed area on the maps and other historical documents as part of Waterboard Park does not serve to dedicate it as a park."

Reaction from city, neighbors

Neighborhood attorney Jesse Buss said Weber's decision is an indication that citizens can't rely on official city publications and parkland designations to protect their parks.

"Instead, under Judge Weber's ruling, many of Oregon City's parks are vulnerable to development at the whim of the City Commission, without a vote of the people," Buss said. "Especially considering the increasing development pressures on Oregon City's 'free' public parkland, this is what the MNA was trying to prevent… That is, if you're looking for land to build on, it doesn't cost anything to buy parkland you already own, right? That's the misconception. When you sacrifice parkland to construct buildings, you may save a buck in the short term, but you lose the parkland forever."

MNA tried to convince the judge to make a ruling on whether the city could interpret its own charter protecting parks, but Weber decided to make her ruling limited to Waterboard Park. In 2015, City Commission adopted a resolution to "clearly designate" the disputed area as non-park land to allow for a new Public Works facility.

"And this issue isn't just limited to Oregon City; there is a disturbing statewide trend of cities sacrificing their parkland for development because it seems inexpensive to do so," Buss said. "If this statewide trend isn't nipped in the bud, the problem could become much worse."

PHOTO BY RAYMOND RENDLEMAN - Clackamas County Circuit Judge Katherine E. Weber listens to lifelong Oregon City resident Phyllis Gehring, 91, promise truthful tesimony during the Waterboard Park trial.Weber cited Oregon case law stating that a property owner must demonstrate an "unmistakable intention to permanently abandon his property to the specific public use." While the city produced maps and allowed use of the area as a park, Weber said these actions were sufficiently contradicted to prevent formal dedication of a park by its use of almost the entire disputed area for Public Works storage for nearly 50 years. Since 1969, Public Works has kept firefighting tools, heavy equipment, lumber, old desks and up to 10 truckloads of concrete for road repairs in the area.

"I appreciate the legal confirmation that the Public Works Department's use of the upper yard during the past 50-plus years was legal and appropriate," said Oregon City Public Works Director John Lewis in response to the ruling. "Unfortunately, we were forced into this lawsuit, but it is important that the judge ruled in this case so we can continue to work in the upper yard."

Mayor Dan Holladay saw the victory for Oregon City in the lawsuit as bittersweet. He considered the seven-day trial and hundreds of pages in written documents produced by each side in the case to be a waste.

"It's too bad we had to spend so much money and staff time for something that was decided by the voters in Oregon City in 1970," Holladay wrote in a recent Facebook post.

Charter at issue

In the post, Holladay referred to the 1970 charter amendment in which voters demanded that the city refer ballot measures for voter approval if the city ever wanted to develop parkland for non-park uses. The amendment included a detailed description of the "natural" area of the park excluding most of the disputed area, which has a couple of storage sheds and an armory built during World War II.

The neighborhood's attorney had pointed out that the charter amendment didn't provide an exhaustive list of city parklands in Oregon City protected by voters. Buss said that the buildings in the disputed area prevented it from being included in the 1970 ballot measure's "natural" park designation even though it has many natural features.

Weber was not convinced by the neighborhood's points in the case that would have legally defined the boundaries of Waterboard Park to include the disputed area as also protected by the city charter.

Neighborhood representatives believe that city officials fought hard to avoid a vote that would probably block Public Works' development plans. Protective of their parkland, Oregon City voters since 1970 have voted down almost every proposal to develop parkland for non-park purposes.

"Oregon City voters know that once parkland is lost, they'll never get it back," Buss said. "Considering that Lower Waterboard Park [the neighborhood name for the disputed area] was purchased for park purposes and that it's been shown as parkland on every official parks master plan since 1935, it's likely that Oregon City voters would soundly reject the city's proposal to fence off the land and remove it from the parks inventory."

Short of allowing a public vote on the project, City Attorney Bill Kabeiseman said that city officials "bent over backwards" to address citizens' concerns through the planning process.

"Throughout the course of the city's interactions with the McLoughlin Neighborhood Association, its members and with the plaintiffs, city staff worked in good faith to resolve the neighbors' concerns," Kabeiseman said during the court hearing.

It is unclear whether the neighborhood will appeal this case to the state level, and neighborhood leaders say they are still researching their options. Citizens have suggested that perhaps Public Works could be located in a different location, such as co-located at the future site of the police station. But the Public Works director says that demands of the city "necessitate modernizing the Public Works facilities currently located in the upper yard" to meet community needs.

"We continue to investigate options for making our employees more efficient, increasing the longevity of our equipment and keeping employees safe in their work environment, all of which can be accomplished by upgrading our Public Works facilities," Lewis said.

This story has been updated with the correct spelling of Phyllis Gehring's last name. We apologize for the error.

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