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Remember how few people tipped the vote with thousands of trusts? A court has ruled trusts out

PHOTO ILLUSTRATION BY DAVID ASHTON - Will the latest ruling be appealed to the Oregon Supreme Court, or will it stand? Either way - what next? An Oregon Court of Appeals ruling filed April 3 – in the case of Eastmoreland resident, and opponent of the Eastmoreland Historic District application, Tom Brown vs. Oregon Parks and Recreation Department – settled little, except that the court decided that the Oregon State Historical Preservation Office (SHPO) had improperly created a "rule", and disqualified counting "trusts" as owners.

At the end of the court's ten-page opinion, the justices made their findings clear:

In sum, we conclude that the part of the ownership counting standard published on SHPO's website that adds trusts to the list of eligible owners for the purpose of voting on nominations of districts for inclusion in the National Register of Historic Places constitutes a rule.

Because SHPO promulgated the standard without complying with rulemaking procedures, see ORS 183.400(4)(c), the provision of the standard that designates trusts as eligible owners is invalid.

Provision of State Historic Preservation Office's ownership counting standard that designates trusts as eligible owners held invalid.

This invalidated the SHPO's ruling, reported in a headline story last July, that it had determined the opponents of the proposed Historic District had indeed submitted enough objections to prevent listing Eastmoreland as an Historic District in the National Register of Historic Places. That, as a result of a handful of neighbors having created many modified trusts to "own" their properties, by which they could cast 5,000 votes in opposition, thus massively defeating the proposed District.

Now, once again, there is the contested matter of establishing whether those in favor of the District have, or have not, obtained a majority vote in favor of establishing the Historic District. Presumably the previous vote can be recounted without those trusts.

But, immediate action of any sort seems unlikely. When we asked for a status update on that Eastmoreland Historic District nomination, Oregon Parks & Recreation Department Associate Director Chris Havel told THE BEE, "The Oregon State Historic Preservation Office staff has been working to apply state and federal provisions, to resubmit the proposed Eastmoreland Historic District nomination for potential listing in the National Register of Historic Places – and will incorporate the recent court decision into the process.

"Because the Eastmoreland nomination presents several unusual characteristics, we cannot predict how long the final preparation will take, other than to say the staff is working consistently to ready it for submission to the U.S. National Park Service," Havel said.

Eastmoreland Neighborhood Association Chair Rod Merrick, making it clear he was speaking only for himself, issued a brief statement headlined, "Eastmoreland HD moves a notch closer". In it he wrote, "This decision moves, or certainly should move, the Eastmoreland Historic District approval forward. The question of who is manipulating this process behind the scenes remains of interest."

The organizer of "Historic Eastmoreland Achieving Results Together" (HEART), Derek Blum, himself a proponent of the Historic District nomination, spoke with THE BEE about ruling: "This has been an interesting development; however, it's inconclusive, as far as the next steps for the neighborhood and the Historic District nomination will take.

"I don't know the implication of the latest ruling; SHPO and the Department of Justice will determine what comes next," Blum said. "It's somewhat ironic that the lawsuit was brought by someone opposed to the district. The way I read the ruling and understand it, SHPO did not go through proper rulemaking process, which would prevent them from counting [votes from] any trusts.

"SHPO needs to follow a process of rules, and not make them up as they go. Both sides agree that there needs to be transparency about what the rules are," Blum said. "Until we find out more, HEART is in 'wait and see' mode."

Meantime, the Eastmoreland neighbor who brought the lawsuit, Tom Brown, commented to THE BEE that his understanding is that SHPO can appeal the decision to the Supreme Court, or let the ruling stand.

"The court ruled in my favor, but nothing was won!" Brown said. "SHPO knew two years ago they needed to do rulemaking, because as far as I know they never have done rulemaking for this program. SHPO seemed to tell us that they'd work on rulemaking, but do it after the Eastmoreland nomination was finished. . . SHPO should have stopped this process almost two years ago, when the National Park Service sent it back the first time."

Whether or not Eastmoreland is designated an Historic District could now take some time, he observed.

Explaining his position, Brown said, "Those opposed to the Historic District just want Eastmoreland to be part of the city and change over time, like the rest of the city. We are not special, but we are fortunate; and we should not try to be more of an exclusive enclave than we already are."


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