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Legislation may help SWTrails work resume after three-year hiatus

Neighbors' privacy concerns still to be addressed

HILLSDALE - For more than three years, homeowner concerns about legal liability have stopped neighborhood volunteers from building and improving trails in Southwest Portland on public rights of way.

Now House Bill 2865, recently signed into state law by Gov. John Kitzhaber, frees homeowners living next to the trails of liability for accidents on the paths. Trails advocates hope the legislation will lead to the resumption of trails work.

The bill passed overwhelming in both the House (53 'yes' votes, six 'no' votes and one abstention) and the Senate (27 'yes' votes, two 'no' votes and one abstention).

The origins of the problem date back to March 2008, when some Hillsdale homeowners on Southwest Seymour Drive expressed concerns about being held liable for potential trails injuries on a public right of way next to their houses. They called on the city to block trails improvement work, tore out a new volunteer-constructed, unapproved set of stairs and closed access to a trail.

The path had served as a shortcut for pedestrians headed to schools and the commercial town center from northwest Hillsdale.

Since the issue arose on Seymour Drive, the city of Portland has sought the consent of abutting property owners before trails work can be done. This requirement brought trails work to a halt.

The Seymour work, which was abandoned in 2008, had been done by SWTrails, a volunteer organization headed by Don Baack.

Baack testified twice in Salem during the legislative session, advocating for liability immunity for property owners. He told the House Agriculture and Natural Resources Committee and the Senate Judiciary Committee about the need for trails in Southwest Portland, where 45 percent of arterial streets lack sidewalks.

SWTrails has laid out a system for building and maintaining 44 miles of trails in the area.

Representatives of the Portland City Attorney's office testified that they knew of no claims brought against homeowners over trails mishaps on adjacent public rights of way. The homeowners' concerns and opposition to adjacent trails on public property were mostly a matter of 'perception' of vulnerability to lawsuits, the representatives said.

In the hearings, no one testified against the legislation, which applies only to Portland.

In Senate Judiciary Committee testimony, Portland Deputy City Attorney Mark Moline conceded that the legislation's constitutionality might be challenged. If challenges succeeded, the city would be held liable, but that was, he said, 'a risk the city is willing to accept because we think it is minimal.' He added that there is case precedent supporting the immunity.

A separate issue that arose three years ago was that of privacy, with residents worrying about these trails attracting intrusive strangers. The legislation did not address the privacy issue, but in an interview Baack said that residents should have learned about the rights of way before buying their homes.

The question remains whether or not, once the liability issue is resolved, the city will still seek property owners' consent before trails work can proceed. And if it is sought, whether or not the new lack of liability will, in the words of State Sen. Ginny Burdick - a Hillsdale resident and a co-sponsor of the legislation - 'make it easier to gain their approval for public paths in the right of way.'

Two phone messages were left for homeowner David Barberis, who lives next to the public right of way on Seymour Drive and objected to the Seymour trail. Both were unreturned. The messages sought his comment on whether the legislation fully addresses his concerns.

Dan Anderson, a spokesperson for the Portland Bureau of Transportation, said that the city would be 'contacting Southwest Neighborhoods Incorporated (SWNI) leadership to discuss 'next steps.'' SWNI is the coalition of Southwest Portland's neighborhoods in which SWTrails operates as a committee. Baack described the next step in restarting SWTrails' improvement efforts as finding agreement on a process for resuming work.

'We still have to work out the details of permits, what standards will apply and many other details,' he said. 'It will still be a long time before we are moving dirt. The key is to develop a simple way of going about this with minimum bureaucracy.'