Sunday, December 7, 2014

City Council, December 8th - also LUBA update

Light Council agenda for our interests. So just bullets without commentary. Plus an update on Thursday's LUBA arguments on the Blind School property.
There didn't seem to be anything new or interesting to say about any of these. Maybe you will have something to say?

City Engages High-Powered Attorney for Blind School Hearings at LUBA

Far more interesting than the Council agenda was news that filtered out after the hearing before the Land Use Board of Appeals on Thursday.

It seems the Hospital and City brought large artillery into the field at the oral arguments over the Blind School parcel.

Plenty of room
Coming down from Portland, Edward J. Sullivan argued for the City and, apart from the fact that we disagree with his side on this, he's had it turns out quite a distinguished career.

Just this summer, as a prelude to his retirement, Sullivan was honored with the Jefferson Fordham Lifetime Achievement Award from the American Bar Association State and Local Government Section.

This is a national, not state-level, award.

From his firm's release:
Ed Sullivan’s distinguished legal career spans 45 years and has had significant impact on Land Use law in Oregon. Throughout his career, he has championed sound land use planning, the provision of affordable housing opportunities, and the protection and preservation of resource lands throughout Oregon and beyond.

Carrie Richter, co-chair of the Garvey Schubert Barer Land Use Group with Ed Sullivan, and his colleague for the past 10 years, said, “Ed's accomplishments speak for themselves. He has shaped the Oregon land use system, starting with his influence on the seminal Senate Bill 100 drafting and adoption, taken land use battles to the United States Supreme Court, and proposed innovative approaches to ensure that sufficient urban land is available for affordable housing development.”

Ed Sullivan’s accomplishments have included work with major landmark cases in the history of Oregon State Land Use Law. The most notable cases that Ed has been involved in are Fasano v. Washington County Board of County Commissioners, and Baker v. City of Milwaukie. Both are Oregon Supreme Court cases that uphold the necessity to guarantee fair, reviewable and predictable decision-making in Oregon land use.

Before entering private practice, Ed worked for the then governor of the State of Oregon, Robert W. Straub.
It goes on at some length.

Among his more recent publications, an interesting one is "Smart Growth: State Strategies in Managing Sprawl."

(Apparently, it's also worth noting, these cases at LUBA may well have been his last at LUBA before retirement.)

What does this all mean?

I'm not sure.

Here's some speculation and tea leaves. (Maybe you can discern more of the signal from noise, and will have a better reading of it all?)

It is interesting that at the Cemetery path and alley vacation that went to LUBA a couple of years ago, only local attorneys from Salem were engaged, and the City Attorney sent an Assistant City Attorney in his place.

This time, no Journeyman was sufficient, as it were, and it seemed necessary to engage the Master. Who knows whether the Hospital or City is actually paying the bill, but is there more significance here than merely wanting to prevail just on these cases?

It could be that if citizen advocates prevail over the City and Hospital there would be implications going forward. The City, in particular, may see itself as having more at stake than just having to say to the Hospital, "sorry, you've got to rework some things." Needing such a high-powered Portland attorney could indicate that the City fears it has been doing things wrongly, and that ruling here could set some kind of precedent that could require meaningful changes in the way it handles implementing policy and handles development and historic preservation.

That is to say, this is an additional sign that it is totally worth appealing these cases, because something meaningful is in play! If they were routine, and the City was confident it would prevail in each, why not just use Salem attorneys, right?

The move looks like respect and maybe fear that neighborhood objections are well warranted.

The final decisions will be interesting to read - and maybe they will have implications beyond themselves.

Early word is that LUBA expects to issue decisions on Howard Hall by December 26, 2014 and on the parking lot and transportation questions by January 6, 2015.


Curt said...

I think the City fears the precedent that will be set if they win on the parking lot. That is, the code provisions meant to curb parking sprawl could then be used to enable it.

I think City planners know they are wrong and they just succumbed to the political pressure from the hospital to deliver their parking lot to them. There is no other logical explanation as to why they would forward one policy for downtown and N. Broadway and a completely opposite position on the Blind School property.

I think the hospital suspected that the City was going to "stand down" and they had to bring in the big guns to finish the job.

If nothing else we proved that we can stand in the ring with the heavy hitters.

Susann Kaltwasser said...

I like both your analysis and Curt's! Too many people shy away from appeals to LUBA because they think that it is not worth the effort. Even a loss is worth putting the development community and the City on notice that they can't just roll over the public.

AND sometimes the little this case...little blind lady, has to be respected!

Anonymous said...

If a playground was the real desire of Salem Hospital, why don't they offer to put the playground in Pringle Park? Have they ever talked to the city about this option for their playground? I do not think there is a way to force SH to build the playground after the Blind School is demolished. They can claim they don't have the money. Why would they say they need a playground at this farthest corner of their property adjacent to busy Mission St? SH is not in the recreation business and this property is adjacent to one of our largest parks (Bush). The entire playground proposal is a red herring, who can be against a playground? Just another example of telling the public anything that will get the result they want.

Salem Breakfast on Bikes said...

Though it's not yet posted to the LUBA site, the SJ has a late-night piece with a link to their own posting of the decision (not "petition" as the url has it) from LUBA.

On a quick reading it seems like the center is this:

"In reviewing a substantial evidence challenge, LUBA's role is not to reweigh the evidence, but rather to determine if a reasonable person, viewing the whole record, could reach the conclusion that the decision maker reached."

So it was apparently not necessary to dig into the evidence, and they simply looked on the surface to see if it seemed "reasonable."

Since it did seem reasonable, they found for the City (and Hospital) on all five "assignments of error" and dismissed rather quickly the objections.

It was a slam dunk for the City, it seems.

Doesn't bode well for the other challenge, alas.

Salem Breakfast on Bikes said...

Re: Playground and Pringle Park...

See the paper today on the 1964 flood! Even in 2012, the area between Shelton Ditch and Pringle Creek was low enough that it flooded, and that's one reason why the land swap idea floated by Restore Oregon might not be such a good idea.

But as you say, the playground is indeed a red herring in general terms - part of a bait and switch, surely.