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Society asks state Supreme Court to keep historic designation intact

Ruling will affect Carman House in Lake Oswego and 3,200 properties like it across the state of Oregon

SUBMITTED PHOTO - The Carman House, which sits on 1.25 acres at 3811 Carman Drive, was built in 1857 by pioneer couple Waters and Lucretia Carman. It is the oldest home in Lake Oswego, but it has been significantly altered over the years.What will become of the oldest house in Lake Oswego?

That’s the question before the state Supreme Court, where attorneys for the Lake Oswego Preservation Society asked justices Tuesday to keep the Carman House’s historic designation intact. Two dozen spectators gathered to hear the oral arguments in Salem.

The case, Lake Oswego Preservation Society v. City of Lake Oswego, has been working its way through the court system for the better part of two years. The state Land Use Board of Appeals ruled in the society’s favor, but the state Court of Appeals overturned that ruling in February in a decision that could ultimately impact more than 3,200 historic properties across the state.

The city and a trustee for the Mary Caldwell Wilmot Trust, which owns the property, argued to the court that current owners have the right to remove historic designations. Ten organizations, municipalities and state agencies have disagreed, signing on to the case as “friends of the court.” The National Trust for Historic Preservation, the State Historic Preservation Office, Restore Oregon and the City of Portland are among those who have filed amicus curiae briefs on the society’s behalf.

In the end, it may all come down to semantics.

Attorney Daniel Kearns, who represented the society Tuesday, told the court that under state statute, only the original property owner may opt out of the property’s historic designation. Subsequent owners may not make that decision, he said.

Kearns argued that LUBA was correct in ruling that a state statute implements Oregon’s Goal 5, a state planning goal that in part covers historic preservation. Kearns said ORS 197.772 specifies that “a local government shall allow a property owner to refuse to consent to any form of historic property designation at any point during the designation process.”

In that context, Kearns argued, “property owner” means the owner at the time the historical listing is proposed — which, for the Carman House, was in 1990.

But attorney Christopher Koback, who argued on behalf of the City of Lake Oswego and Marjorie Hanson, the trustee for the Mary Wilmot Caldwell Trust, said the statute in question was actually meant “to assure that private property was not subjected to nonconsensual local historic designations that restricted the use of private property with no local benefits.”

Koback said the Court of Appeals was correct in reversing LUBA’s decision, and that the court had concluded that “the text and legislative history revealed that the Legislature was concerned about correcting impositions of unwanted designations and not (with) the identity of the property owner.”

Koback said LUBA erred in ignoring the “plain language.”

“When they got to legislative history,” he said, “they drew the wrong inference. The whole purpose of this law was to eliminate involuntary designations, which provide virtually no incentives.”

Justice Jack Landau told Kearns the issue of “definite and indefinite articles” left him “a bit cold” — referring to alternating uses of “a property owner” and “the property owner” in legislation. Landau later quizzed Koback on what Landau called the “latent ambiguity” of the statute’s language.

“It’s ambiguous, and subject to statutory interpretation,” Kearns agreed in his rebuttal.

The court was asked to consider whether state statute allows for subsequent owners to opt out of the program, or if they are only allowed to do so if the owner at the time of the property’s listing failed to consent to the historic designation. Additionally, the court will consider whether local government has the responsibility to investigate claims when a current owner requests the property be delisted.

The implications of the court’s decision could be far-reaching, according to Marylou Colver, president of the Lake Oswego Preservation Society. The two-story Carman House, which was built in 1857 by pioneer couple Waters and Lucretia Carmen on a land claim signed by President Andrew Jackson, is one of 43 such properties in Lake Oswego — and more than 3,200 across the state — that have been designated as an historic resource.

A 2013 Restore Oregon survey found that only 5 percent of the historic houses and homesteads that existed in 1865 are still standing today. After Tuesday’s arguments, Colver told The Review, the state Supreme Court will have the final say on whether all of those properties retain their local landmark status and the associated protections that come with designation.

Kearns emphasized the importance of that decision Tuesday, telling the court that since the end of the recession, development has been growing at a fast clip.

“You see (the urban growth boundary) matters,” he said. “Over time, every one of these properties will be delisted.”

Contact Saundra Sorenson at 503-636-1281 ext. 107 or ssorenson@lakeoswegoreview.com.


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