Residents of Gunther Acres lean toward legal action on lots

by: TRIBUNE PHOTO BY JAIME VALDEZ - Attorney Nick Merrill stands outside a large home in Southwest Portland that a developer wants to replace with three smaller ones.It’s a common tale: A citizen hears that changes have been proposed for his neighborhood, changes he doesn’t like and feels are unlawful. He finds out that he is not alone in his disapproval, so he and his neighbors band together to try to stop the development in its tracks. Rarely does such a grassroots group make any headway.

Yet for one tiny Portland community, that seems to be exactly what’s happening.

In the Far Southwest Portland neighborhood is a subdivision known as Gunther Acres. One of the houses in Gunther Acres, 6122 S.W. Haines St., built in 1945, was marked for demolition a few months ago to make way for three infill properties. Much to their chagrin, neighbors later learned that a fourth lot had been added to the original proposal.

“The neighbors felt that dividing that large lot into three parcels was maybe not what they wanted to see happen, but wasn’t highly objectionable,” says Nick Merrill, an attorney who lives near Gunther Acres and heads up the Far Southwest Neighborhood Association Land Use Committee. “We didn’t know until Dec. 6, when we received the notice of completed application from the Bureau of Development Services, that the plans had been changed to four lots.”

This incited the neighbors, who felt that the developer, Eugene Labonsky, should have had to start from square one in the process of seeking approval. One reason was that the new number of proposed lots technically did not adhere to the requirements of the type of land-use proposal that Labonsky originally had submitted with applicant Bruce Goldson. They also take umbrage at what they say is a violation of Gunther Acres’ original covenant, which Merrill said was designed to limit development in the subdivision.

“It’s a single contract with multiple covenants, which represent the promises that the original landowners made to each other ... and that they recorded so that every future purchaser of properties in the neighborhood would be put on notice that development is limited in these specific ways,” he said.

On Jan. 7, however, Far Southwest Neighborhood Association Chairwoman Marcia Leslie described in an email message to the Tribune an exchange between Merrill and Shawn Burgett, city planner with BDS Land Use Services:

“Nick had emailed Shawn Burgett Monday afternoon about the review process. Shawn replied early this morning to say he had caught the error, that the applicant was going back to a three-lot split ... that new Land Use notices would be sent out and a new public comment period would begin.”

Even so, Leslie wrote, “Nick forwarded Shawn’s message to everyone involved and the consensus was to continue pursuing enforcement of the CC&Rs on Gunther Acres, which would further reduce from three lots to two lots, restrict the height and style, and street setbacks.”

“I think they’re partially trying to work with the neighbors,” Burgett says. “The neighbors are upset with the project.” And “I think ... that one of the other reasons is they want to keep it in the same process.”

Burgett said that various city bureaus, including the Portland Bureau of Environmental Services, are looking at the original proposal. Once Burgett receives feedback from them, he said, the BDS will share those comments with Goldson, who will be expected to revise his original proposal.

Possible legal action

Some neighbors, however, feel that three lots are still too many. Merrill had previously agreed to represent the neighbors at a reduced rate if they wanted to form a legal front.

“Two lots would be fine,” Merrill says. “So long as those lots meet the conditions that are spelled out in the restrictive covenants.”

For that reason, Leslie said in her email: “Nick forwarded Shawn’s message to everyone involved and the consensus was to continue pursuing enforcement of the CC&Rs on Gunther Acres which would further reduce from three lots to two lots, restrict the height and style, and street setbacks.”

“Our position is that these development conditions and restrictions, recorded with the Multnomah County Recorder’s Office in 1952 and still in effect, allow only two lots at the proposed development site,” Merrill told the Tribune via email.

Developer Labonsky of West Coast Real Estate Holdings LLC has retained attorney Dorothy Cofield and the neighborhood is waiting for a response on the convenants issue, he says.

Neighbors are considering legal action to enforce the covenants limiting development, Merrill says. Some neighbors, however, would prefer that not even two lots be approved, opposing the infill not just on legal grounds, but for another reason: It just would not look good.

“We moved into our house for our backyard, and our backyard is completely private,” says Elizabeth Ranta, whose property abuts the one under contention. “That will change if I have somebody 10 feet off my property line.”

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