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Sandy wins one in land-use case

LUBA denies motion to dismiss Sandy's appeal of county action


The Oregon Land Use Board of Appeals (LUBA) recently denied Clackamas County’s motion to dismiss the city of Sandy’s appeal of a previous county action.

In that earlier action, approved several months ago, the Board of County Commissioners voted to withdraw from a 1998 agreement with the city of Sandy and Metro — a pact that would guarantee there always would be a tree buffer, 200 feet wide, along Highway 26 from Gresham to Sandy. That buffer is called a “green corridor.”

When Boring residents complained they would be responsible for the planting and giving up use of their land, the commissioners withdrew from the old pact.

County Commission Chairman John Ludlow says the commission was standing up for the rights of its residents.

“I have been a real estate broker for nearly 40 years,” Ludlow said, “and I have fought for private property rights. All that the residents in the Boring area want are autonomy and self-direction. This green corridor process, I feel, was an infringement on their rights — and the majority of the commission felt that way, too.”

In its disagreement with Clackamas County and indirectly with members of the Boring Community Planning Organization (CPO), the city of Sandy’s appeal of that withdrawal is showing signs of a victory because LUBA denied the county’s motion to dismiss the city’s appeal.

“I was disappointed with LUBA’s ruling,” said Steve Bates, chairman of the Boring CPO. “We thought we had a slam dunk, but we obviously didn’t. Hopefully county attorneys will proceed and get the job done right.”

But Ludlow says the ruling against the county’s motion “is no big loss.”

Instead, LUBA will continue to review the city’s appeal of the county’s withdrawal.

Although Sandy City Attorney David Doughman, of Beery Elsner & Hammond in Portland, does not believe the city has won its case yet, he says the county has some explaining to do if it hopes to prevail.

The LUBA ruling is only on the motion to dismiss the appeal, Doughman said, and not on the merits of the appeal.

But if LUBA’s denial of the county’s motion is any indication of the board’s attitude, Doughman says it is a small victory.

“The county was convinced that this (appeal) was not a land use matter,” he said, “and we (Sandy) showed that it was.

“We still scratch our heads about why the county is taking such a strident position, when it comes to these agreements.”

The city of Sandy is likely going to just sit and wait until the courts are finished ruling on the merits of two cases.

The second agreement, in 2011, was written because some of the provisions of the 1998 pact were violated when Metro issued its urban reserve plan. The county also has voted to withdraw from that agreement.

But the urban reserve plan is now on appeal in the Oregon Court of Appeals, which temporarily suspends the effect of the 2011 agreement.

“So what we are likely going to ask for in the interim,” Doughman said, “is to just put the appeal on the shelf and see what happens in the coming weeks and months with the 2011 agreement.

“This LUBA order (deny the dismissal motion) doesn’t get to the merits (of the case). It doesn’t evaluate whether the county had the right to terminate this (pact).”

Doughman said at least one of the county’s reasons for withdrawing was “novel.”

The county told LUBA the agreement was never in effect because, of the four parties, only three signed the document. The Oregon Department of Transportation chose not to sign.

Even though the county considered the agreement not to be a valid document, it still went through a legal process of withdrawing.

“That’s what’s bizarre about the county’s argument,” Doughman said. “Why would you terminate an agreement if you don’t think it exists in the first place?”

Sandy Mayor Bill King agreed with the city attorney, saying he was confused by the county’s actions.

“The county claimed that the agreement was invalid because it wasn’t signed by ODOT,” King said, “and yet, since its adoption, the county has gone

by that agreement and even went so far as to fulfill the termination requirement. So if it wasn’t in force, why are they doing that?”

In addition, Doughman said, there is language in the county’s comprehensive plan that is similar to language in the agreement.

“That’s why we were scratching our heads about why the county didn’t consider it to be a land use matter, when one of their main land-use documents — the county comprehensive plan — speaks specifically to this agreement.”

If the city asks for a delay in this appeal, Doughman said, it would be just to save the city attorney fees until a decision is reached on the 2011 agreement.

“If we go forward with this appeal,” Doughman said, “the county would have to show (in an analysis) that in terminating the agreement it’s doing so in accordance with relevant portions of its comprehensive plan.”

“(Protecting private property rights) is not over yet,” Ludlow said.

According to LUBA documents, signed June 20, a brief response will be written after reviewing the case. LUBA will have to submit its final opinion on the merits of Sandy’s appeal by Sept. 5.