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Pool battle sees its day in court

The water is not quite settled over the swimming pool dispute between the city of West Linn and Troy and Gina Bundy.

The Bundys appeared in municipal court Tuesday and Wednesday for a hearing concerning their swimming pool. The hearing was initially scheduled for Aug. 16 but was delayed. A decision on the case is pending.

The couple has been battling over the pool with the city of West Linn for several years. The pool — along with a patio, tiki torches, footbridges and a brick wall — was installed without a permit in a sensitive water resources area.

The city wants the pool removed and the backyard restored. Officials also hope to recoup legal costs associated with the case.

Since May, the city has been fining the couple $1,000 each per day, citing an ongoing code violation, which is retroactive to the time the pool was built in 2009, adding up to $2 million. They both pleaded not guilty to the violations.

During more than eight hours of testimony on Tuesday and three hours on Wednesday, the Bundys contended the city made the pool installation process confusing, tricky and cumbersome. They also argued that the area behind their home, which is owned by Portland General Electric, is not a wetland by the city’s definition and that it is a manmade wetland.

Their house, located at 1215 Ninth St., is sandwiched between two wetland areas. Since 2001 — before the Bundys moved in — the city has had a conservation easement on the property that limits its use. The city acquired a conservation easement on the property in 2001, two years before the Bundys moved in. This easement limits how the Bundys use their backyard.

Troy Bundy, representing himself and his wife during the trial, said former West Linn Mayor Patti Galle told them it was OK to install a pool, which would have required a special permit to build near wetlands. They believed the mayor had authority to grant exceptions to code restrictions. As a result, the pool and patio were built before the permitting process was complete.

West Linn Planning Director John Sonnen denied their subsequent application to build in the sensitive water resources area. When the couple appealed, the city council upheld Sonnen’s decision.

The Bundys then took their case to the Oregon Land Use Board of Appeals, which has authority to review governmental land-use decisions. LUBA supported the city’s denial.

After the denials, the city and the Bundys continued to negotiate.

Since June 2011, the city and the Bundys have been negotiating a timeline for pool removal and remediation without any resolution. Because there was no progress in the negotiations, city attorney Tim Ramis recommended pursuing a different route — thus, the hefty daily citations and court date.

“After 12 months, we were so far apart it didn’t seem likely that we’d close the gap,” Ramis said Tuesday.

The Bundys did have success, however, negotiating with the state. When the pool was dug out, the contractors dumped the fill into the area owned by PGE. As the result of a visit from the Oregon Department of State Lands in January 2010, the Bundys were fined $3,000 and told to restore the wetland areas on the PGE property. Since that time, the Bundys have worked to restore that wetland area.

During testimony, Troy Bundy outlined the extensive ordeal the couple went through trying to install their pool. He said they were fed misinformation and alleged that Associate Planner Peter Spir had a personal vendetta against the couple. He went as far as to accuse Spir of forging documents and purposefully messing with documents sent to the couple and their lawyer.

City attorney Rhett Bernstein argued, however, that the couple knew from the onset that the property had restrictions and proceeded with installation despite that knowledge.

“They chose to ignore the facts,” Bernstein said. “They knew in the city’s opinion it was a water resource area. ... They are just as subject to the rules of the city as anybody else. They must be found in violation.”

Even the pool contractor, Anderson Poolworks, was apprehensive about installing the pool without the proper permits in place. As a result, the contractor asked for an addendum to the contract signed by the Bundys that would not hold Anderson Poolworks responsible if things went awry — which they did.

Troy Bundy’s main argument was that the land behind his home is not a true wetland by city definition, despite an expert witness from Oregon Department of State Lands testifying it was. He claimed the area was created when the city installed a drainage system for the nearby ballparks at Willamette Park. He brought in several neighbors who testified that their properties are now plagued with standing water since a ditch and culvert were put in.

“This is where the key to the case lays,” he said. “This area behind our property is an artificially created area.”

He also argued that the wetland was not properly designated, not having been delineated through the 1987 U.S. Army Corps of Engineers Wetlands Delineation Manual. The delineation process outlines exactly where wetlands begin and end.

In his closing argument, Bundy questioned why the city did not start an abatement process long ago to address the pool. He accused the city of extortion, harassment and depriving his wife and him of due process.

“I’m tired of playing this city game in a city bureaucracy,” he said. “They (the city) are playing fast and loose with the rules they wrote.

“If the city intends to come in and take from a family, their home, their livelihood, their bank account ... they’d better have their ducks in a row. ... This is our family.”

At the end of closing arguments, Municipal Court Judge Heather Karabeika announced that she had hundreds of submitted documents to examine before she could reach a decision and that she would notify the attorneys when she reaches a decision.