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Lawsuit alleges easement is not legit

The saga continues between a West Linn family and the city over a pool built in a sensitive water resources area.

Troy and Gina Bundy submitted a lawsuit against the city of West Linn on Aug. 28 in Clackamas County Circuit Court. The city of West Linn filed its response to the suit Oct. 2 and is continuing to work out negotiations with the Bundys. In the meantime, the pool is slated for removal by the year’s end.

In their complaint, the Bundys allege that the conservation easement on their property is illegal and voidable because the city failed to follow state-required notice and public hearing procedures and the city council did not approve the easement.

This argument differs from their city code violation of building a pool in a 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 conservation easement, which spans the majority of their backyard, states nothing can happen on that property, including construction of buildings, placing sod or planting non-native vegetation.

According to the city, in 2001, the former property owner, Mark Handris, granted a permanent open space conservation easement to the city that covered the majority of the backyard. The city denies the process was not conducted properly.

The Bundys admitted in municipal court that they installed a pool and 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 Oregon’s Land Use Board of Appeals. The denial was upheld each time.

Since June 2011, the city and the Bundys have been butting heads.

In May the city cited the Bundys for an ongoing code violation, which was retroactive to the time the pool was built in 2009, adding up to $2 million. They each pleaded not guilty to the violations.

A municipal judge ruled Sept. 24 that the Bundys must pay $72,000 in fines or remove their pool and restore their property to its 2009 pre-pool condition within 90 days for the fine to be reduced to $18,000. The Bundys agreed to remove the pool for the reduced fine.

According to Troy Bundy, the pool is currently in the process of removal.

Bundy said he filed the lawsuit during the city court trial to prevent the city from claiming title of his backyard.

The Bundys have maintained a yard landscaped with grass. If the conservation easement on the property is enforced, the Bundys will have to rip it out and restore the property with native vegetation in line with city code.

The circuit court complaint requests the invalidation of the easement on their property as well as payment of the family’s costs, expenses and attorney fees.

“The judge’s ruling cleared up this issue and the restoration order was reasonable,” Troy Bundy said. “In short, we voluntarily remove the pool, and we get our backyard restored to the condition it was in back in 2009.”

Bundy said once the city court order was entered, he offered to discuss dismissing his lawsuit with the city so they could "finally end our long battle before we both ended up spending more time and money on the case.” Bundy said he will dismiss the illegal easement case if the city agrees to not enforce the conservation easement.

“No money changes hands. We both go back to the way things were in 2009, consistent with what the judge ordered last month,” Bundy said.

Bundy said although the judge gave him control over his backyard, the city is not happy with the ruling and is insisting on asserting "land-use rights" on the 1,500 square feet of his backyard.

“Exactly why city hall wants to drag this on is mystery to my family. But, we will oblige and begin setting depositions of key city witnesses and insisting on discovery now,” Bundy said. “As long as the city wishes to attack us, we will continue fighting them.”

The West Linn City Council discussed the issue during an executive session Nov. 19.

The Bundys’ final hearing in West Linn Municipal Court is slated for Dec. 20.

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