Pool is gone, but judge will determine if it meets conditions

The swimming pool saga continues with yet another hearing continuation.

A hearing to determine whether the removal of a private pool installed in a sensitive resources area meets judge approval was continued from Jan. 3 to Jan. 10, and yet again to today, Jan. 17, at 11 a.m. Though the pool is now gone, an environmentalist needs to deem the property viable for complete restoration.

West Linn residents Troy and Gina Bundy, under a court order, were told to remove the pool and the patio they built in 2009 and to restore the property back to its pre-2009 condition by a Dec. 20, 2012, court date.

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 Oregon’s Land Use Board of Appeals. The denial was upheld each time.

Since June 2011, the city and the Bundys have been battling over the pool’s removal and remediation without any resolution. In May 2012 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.

In a Sept. 10, 2012, decision, West Linn Municipal Court Judge Heather Karabeika found the Bundys in violation of the city’s community development code, leaving the Bundys facing a fine of up to $360,000.

Karabeika ruled Sept. 24, 2012, 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.

At the Jan. 3 hearing, Rhett Bernstein, an attorney representing West Linn, told the judge that the expert from Oregon Department of State Lands had not had a chance to inspect the property to determine if it meets the conditions. He added that since the pool was broken up and then buried, there was concern the property might not be able to grow back to pre-2009 conditions. Currently, the pool is gone and the backyard is graded dirt.

The hearing was reset to Jan. 10 at West Linn Municipal Court. However, Bernstein had yet to hear from the expert from Oregon Department of State Lands and the hearing was continued.

Along with the municipal court hearings, the Bundys filed a lawsuit against the city of West Linn on Aug. 28, 2012, in Clackamas County Circuit Court. The city of West Linn filed its response to the suit Oct. 2, 2012, and is continuing to work out negotiations with the Bundys.

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. Troy 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.

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