Judge rules on pool case
Judge offers two choices, $78,000 fine or removal of pool and a $18,000 fine
One West Linn family may be soaking up the last warm days of the year in their backyard pool for the last time.
A municipal judge has ruled Sept. 24 that Troy and Gina Bundy must pay $72,000 in fines or remove their pool and restore their property within 90 days for the fine to be reduced to $18,000.
If the Bundys do not agree to removal the pool and restore the property, the city still has a couple of options it could pursue, such as nuisance abatement.
The Bundys first appeared in municipal court Sept. 4 and 5. 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.
In a Sept. 10 decision, West Linn Municipal Court Judge Heather Karabeika found the Bundys in violation of the citys community development code, leaving the Bundys facing a fine of up to $360,000.
In court Sept. 20, the city attorney Rhett Bernstein recommended two options. The first option was a reduction of the fine to $180,000. The second option was if the Bundys agreed to remove the pool and restore their property within 90 days, to further reduce the fine to $90,000.
Although the Bundys have been in violation of city code since the pool was installed in 2009, the statute of limitations restricts the fines to six months prior to the issuance of the citations. The citations were issued May 25.
Troy Bundy, an attorney represented his wife and himself, filed a motion to dismiss the case, alleging fraud on the court.
This fraud had been perpetrated for nearly three years. Defendants have been labeled as liars and cheats in the press, they have incurred tens of thousands of dollars in attorneys fees and have had their lives turned upside down for a backyard improvement, he wrote in a memo received Sept. 17.
Bundy contested that a document admitted in court as an exhibit was a permit application marked approved and dated Oct. 20, 2009. He said they have never been in violation because they had a permit the whole time.
Bernstein argued, however, that the document approved just the schematics of the pool, not the location of the pool.
Since the document was not new evidence, the judge determined it was not cause enough for a retrial. Im somewhat stymied by my options, Karabeika said.
This is such an irregular situation, Bernstein said. Hes had that document in all its glory since Aug. 6, 2012.
Since May, the city has fined 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. However, due to statue of limitations, only six months worth of violations count.
The couple have been battling over the pool with the city of West Linn for several years. The pool and a patio were installed without a permit in a sensitive water resource area. Their house, located at 1215 Ninth St., is sandwiched between two wetland areas. Since 2001 two years before the Bundys moved in the city has had a conservation easement on the property that also limits its use.
The Bundys admitted in court that they installed the pool and the patio on their property before receiving the proper permits. After an application was submitted, city staff members denied the permit. The Bundys then took the appeal to the city council and then to Oregons Land Use Board of Appeals. The denial was upheld each time.
Since June 2011, the city and the Bundys have been negotiating a timeline for the pools 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.
During more than 11 hours of court testimony, 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 citys definition and that it is a manmade wetland. They also laid blame on city staff as well as a former mayor for misinformation and discrimination.
The judge found all of those claims to be without warrant.
The court found that the Bundys home falls within a water resource area and that a special permit is needed to build a pool. The judge also found the Bundys were aware of the need for the permit before construction started.
Bundy brought up several concerns about the trial and how it was conducted during the disposition Sept. 20. Some of those the judge called outrageous allegations.
He fought against what he saw as excessive fines, comparing the proposed $360,000 fine to that of the $250,000 fine for kidnapping and the $10,000 fine for a three-time drunken driver.
Citys belief that a permit violation should be fined at an amount that originally exceeded by four times the value of defendants home and a capital murder offense is absurd, he wrote in his memo.
It is a sad acknowledgement of this citys connection with residents and families in West Linn when they believe a family of fives backyard is more problematic than an individual who takes lives in his own hands by getting behind the wheel drunk and getting caught doing so not once, but three times. That the city attorneys and the city manager believe this permit violation is worth something between the fine for capital murder and human trafficking is incredibly disappointing. If this court honestly believes that such an amount is not unconstitutionally excessive, then may God help us all.
Bundy also questioned why the case has become national news. He said it wasnt because the pool was built, but the way the city has reacted to it with the hefty initial $2 million fine.
However, Bernstein accused Bundy for orchestrating behind the scenes, having received a phone call from a radio station reporter just hours before the disposition asking about the Oct. 20, 2009, document.
He also questioned the double citations, one against him and one against his wife, when there was only one violation. Bundy also said due process was not followed and that they were denied a jury trial.
The Bundys have poured a large sum of money into the pool installation and its aftermath. Bundy listed past and future expenses at $100,000 for pool installation for which he took out a loan, a planting plan and permits for revision at about $3,500, a DSL fine of $3,000, the purchase of $2,500 in mitigation credits from the wetland bank, a projected cost of $15,000-$20,000 to remove the pool and restore the property, an estimated $65,000 in attorney fees.
How am I supposed to restore the land if you take all my money? Bundy asked.
The impact of the Bundys endeavors certainly has given the appearance that the process has been unnecessarily perpetuated and time-consuming and it would appear that a substantial amount of resources were expended on both sides attempting to resolve this situation, wrote Karabeika in her ruling.
At this time, it is unknown what the Bundys will decide to do.