A case of stalking or a property dispute?
In August came the knock on 64-year-old Milo Denham's door. A uniformed sheriff's deputy handed him official papers. A stalking order blocked him from going to his favorite local park for seven months. A lawyer charged him $20,000 to fight it.
All these things, for the Milwaukie resident, were the reward for his love of birds and nature after he and his neighbors clashed with a Portland jeweler and her family over a simple question: What is city park land, and what is the jeweler's backyard?
For decades, the Milwaukie home of Judith Arnell, due south of the Spring Park nature area, has enjoyed a stupendous view of the Willamette River and Elk Rock Island, a 15-acre wooded isle just south of the Portland city limits that the Portland City Council two years ago deeded to the city of Milwaukie.
Perhaps the best view of it comes from the top of a rocky little ridge at the edge of the large, well-manicured lawn that extends from the Arnell family's back porch to the river.
That view has come with a cost. Since moving in south of the park 26 years ago, Arnell's family has battled trespassers, fire and criminals. And for more than 15 years, Arnell and her husband have jousted with members of the Island Station Neighborhood District Association — the NDA.
It's a most unusual "not in my backyard" battle — one where the two sides have disagreed over what, precisely, is the backyard.
The dispute led to Arnell filing a stalking order against Denham, one that last month a Clackamas Circuit judge dismissed while chiding Arnell's lawyer and calling the case a "misuse" of the law.
According to two legal experts told of the case, the strange tale of Denham's feud with Arnell — a woman he's never met — shows how such orders can be abused.
"It sounds like the judge knew her stuff," said Laura Appleman, a former public defender who is now a professor and associate dean at the Willamette University School of Law.
"In this case, it's just so far out of balance that I can't even believe (it)," said Daniel K.T. Brown, a University of Oregon School of Law staff attorney who provides advice to stalking and domestic violence victims for the school's Domestic Violence Clinic.
Arnell's lawyer, Shannon Kmetic, defended the case to the Portland Tribune, saying her client's fear of Denham was well-founded. "He is bizarre ... Totally bizarre behavior."
Denham responded dryly when told of the remarks. "Walking in the park is kind of bizarre," he said. "I agree that not everybody does it."
Public or private?
On a recent Friday morning, clad in waterproof boots and outdoor clothes, the 5-foot-6 Denham came to an abrupt halt in the middle of the Spring Park trail, surrounded by trees speckled with moss and lichens. "Did you hear that?" he says excitedly. "A Chinese ringneck pheasant."
Denham and his wife, Pam, moved to the neighborhood six years ago so they could be near the river and the nature along it, including Spring Park.
He joined the board of the Island Station Neighborhood District Association. Walking with his wife along the river, he noticed that at the southern edge of Spring Park access to the river was blocked by the Arnells' boat dock and no-trespassing signs.
When Denham or others in the neighborhood association would walk south along the river — a privilege that in Oregon is protected under state and federal law — sometimes neighbors to the south of the Arnells would shout at them and tell them to turn back; that it was private property.
Denham, a corporate financial analyst, began to research and found the neighborhood association had been tracking the Arnells' lot line dispute for years.
In 2005, a lawyer for the Arnells sent a letter to the city of Milwaukie asking to purchase a small chunk of the park to straighten out the unusual jagged lot line between their home and Spring Park, a line that the lawyer noted had "created the confusion" that caused the Arnells to battle invasive plants on public property.
Because of the confusing boundary, "the Arnells have experienced recurring problems with trespassers, which most of the time was no fault of the trespassers," the lawyer wrote.
The application went nowhere.
Denham and his neighbors pushed the city do a land survey to clarify the boundaries, and in early 2018 it finally happened.
The surveyors used 18-inch stakes to mark the boundary between the city park and the Arnells' yard. And it showed that much of the land the Arnells had been mowing was city park land. No-trespassing signs had been erected on city park land, including one bearing a large representation of a handgun and bore the words, "Nothing in this house is worth your life." The field stone path the Arnells installed to their dock appeared to cut across city land. The Arnells' house stood about eight feet from city park land and a line of planted evergreen trees backed by an arborvitae hedge appeared to verge into public land as well.
Denham visited as many as three times per month and took photos to document the lines, especially as, he said, it appeared the stakes were disappearing into the well-mowed yard — as if someone was pounding them in.
"I was taking photos to document the encroachment," he said. "Because when you go to the City Council meeting, a photo is so much more impressive than trying to describe it."
A public dispute
In August 2018, the Milwaukie City Council held a meeting to discuss the neighborhood association's effort to reclaim the land for the city park. A "significant portion" of the Arnells' lawn in their backyard is city property, and a piece of their front yard is county property, said the city's staff report. But the city report added that Charles Arnell and his neighbors expressed concern about "bringing the public closer to private property due to crime and fire risk."
Denham and his neighbors testified. The Arnells and their neighbors did, too.
"Everyone's saying 'well, you know, you're encroaching on the park land," said Judith Arnell's husband, Charles. "Well yeah, I guess. In a roundabout way I guess you could say that. But that's not my intention. I don't need any more land ... the point is keeping fire hazard, keeping trespass (from happening)."
He said his family's kayaks, canoes and surf boards have been stolen. And people keep knocking on the family's back door to be let out their home's front gate.
He added that the city's improvements to the park had increased the problems. "People coming in with their dogs, homeless people, people up to no good. These are people that are coming directly into my yard looking for opportunity. To steal, to trespass, to case the place."
Judith Arnell testified, too. "We've had Peeping Toms, we've had a homeless person bathing in my hot tub."
"When they come knocking on our door to come out our front gate ... they are casing the place out. They want to see if anybody answers the door ," she added. "You know we are the highest taxpayers in Milwaukie; we'd think we'd be protected a little bit more."
In the end, the city asked the North Clackamas Parks and Recreation District to reclaim the land the Arnells had encroached upon — marking the boundary line that traverses what appears to be the Arnells' backyard. A district spokesperson said it will "control invasive vegetation and slowly restore the area to native plants."
Stalking order served
That, however, was not the end of it.
Three weeks after the meeting, Denham was served with a temporary stalking order.
In the document, Judith Arnell noted that she is 72 and accused Denham of walking past "one or more" no-trespassing signs and "trespassing to stalk me. Photographing my backyard while trespassing ... Respondent goes out of his way to make a pass through my backyard. He stares into my home and returns often."
To support her order, she cited two police reports. One of them actually pertains to another man who didn't look like Denham, and who sat on her porch drinking a beer at 2:30 a.m., and subsequently was contacted by police.
And in the other report Arnell cited, showing a photo of Denham taken by their flagpole-mounted surveillance camera, he is clearly standing on city property although it appears to be the Arnells' yard, Denham said.
He wrote as much in a letter to the Milwaukie police chief asking for the report to be removed — marking the boundary lines graphically on the photo to show he was not trespassing.
She submitted affidavits from her neighbors. In them, her neighbors claim to have seen Denham on the Arnells' property. One claims to have seen him wearing an orange vest, digging a hole in the Arnells' yard, seemingly trying to pose as a city worker.
Two affidavits cite his testimony before the City Council, accusing him of having an unhealthy fixation with the Arnells and their backyard. One even claims he yelled, which according to a video of the meeting posted online by the city, Denham did not.
Denham laughs at the notion that he posed as a city worker. He did try to dig around a surveyor's stake that had been pounded into the dirt — but he said he never wore an orange vest.
The stalking order hearing kept getting postponed. For seven months Denham says he avoided his local park for fear he'd violate the order's restriction that he stay out of Arnell's sight.
Early this year, Arnell's lawyer, Kmetic, approached Denham with a proposed settlement that included a restriction that the Island Park Neighborhood Association support the family's attempt to buy a portion of Spring Park to straighten out their boundary.
Last month, in Clackamas Circuit Court, the stalking saga ended when Kmetic and Denham brought a proposed settlement to court for approval. The only behavior restriction it put on Denham was to not publicly oppose any effort by the Arnells to buy a piece of the park.
Judge Ulanda Watkins did not like it one bit.
She asked why Arnell was not there in person.
"It would have been important to have your client here because I would have spoken to her about the misuse of stalking orders," Watkins told Kmetic. "And I understand none of the facts that were in the original request were actually true. This man was not actually stalking her or causing her any threat of harm. And that is the basis for this being dismissed ... This is some kind of a land issue."
Watkins noted that the settlement the two agreed to was not only unconstitutional, but showed the dispute was not about fear of harm.
"The stipulated language actually confirms what is in the respondent's hearing memorandum, that this is just about a property dispute," the judge said.
Kmetic replied that, had the case gone to a full hearing, many witnesses would have vouched that Judith Arnell's fear was reasonable.
Arnell's husband, Charles, later told the Tribune the family had followed the previous landowner's advice that the family had a responsibility to protect the neighborhood from fires coming from the park, including cutting back brush and installing sprinklers. He noted that Spring Park is considered an urban wildlands interface by the government, so steps needed to be taken to reduce fire risk.
"There's all these legal statutes that are there that nobody wants to look at," he said.
Following the judge's ruling, Denham said he was pleased, showing a reporter and a photographer a ridge behind the Arnells' home; on the walk his neighbors greeted him like a conquering hero.
He showed off the ridge with a fantastic view of Elk Rock Island that appears to be part of their backyard, but is not. "This is one of the prettiest places in the park," he said.
Should we call this Denham Ridge?
"NDA ridge?" he joked. "That's the neighborhood's ridge, the citizens' ridge — the citizens of Milwaukie."
Denham said his case shows how stalking orders can be abused. He's set up a gofundme page, and a local band is planning a fundraising concert to help defray his legal costs.
He may need it.
After Denham was spotted on the city's property with the Tribune, Arnell's lawyer, Kmetic, wrote to Denham's lawyer, saying "Mr. Denham, once again, does not respect nor appreciate the situation he was in and the situation he can once again be in with reinstatement of the (stalking) order and contempt. I will proceed accordingly."
Judith Arnell, in emails to the Tribune, seemed to suggest she could pursue Denham in court again. The case "is not resolved," she wrote. "There is no story since the case is far from over."