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Judge sides with Gorge board

Court rules Measure 37 does not apply to Scenic Area lands

June 4, 2005

A small group of property rights advocates gathered outside the Hood River County Courthouse on Wednesday to advocate for implementation of Measure 37 within the National Scenic Area.

About a dozen members of Gorge Landholders United (GLU) carried signs to support arguments being waged in Circuit Court by Oregonians in Action (OIA), authors of the new law.

But three hours later, Circuit Court Judge John Kelly dashed their hopes when he ruled in favor of the Columbia River Gorge Commission. Kelly upheld the bistate entity’s challenge that the will of state voters could not force the removal of regulations set up by federal decree in 1986.

“I hope everyone understands that it is not the function of this court to have the final answer on this issue. The purpose of this hearing is really to create a record for a hearing by a higher court,” said Kelly.

Central to Kelly’s decision was the Measure 37 claim filed by Paul Mansur that is slated to be reviewed by Hood River County on June 20. But the merits of the June 1 court action did not center on the specifics of Mansur’s claim but whether the Scenic Area prohibition against dividing his .59 acre parcel along Lois Drive into two buildable lots should stand. Hood River landowner Stephen Struck is also being represented by OIA in his bid to divide 6.75 acres on Morton Road into three residential lots.

His application, like Mansur’s, was filed in January but was subsequently pulled so that Struck could make revisions before resubmitting it in April — so it is not held to the same pressing timeline.

Measure 37 grants landowners the right to have their claims addressed in court, and recoup attorney fees, if government agencies fail to act within six months of the filing date.

All of the parties on both sides of the legal issue had agreed to “fast track” arguments so Hood River officials would know how to process Mansur’s claim.

“I’m sure the landowner would have preferred to see a different ruling but I’m pleased that we all were able to work together cooperatively to get a judgment as soon as possible,” said Martha Bennett, executive director for the Commission.

Hood River County Counsel Will Carey, who also represented Wasco County, joined Ross Day, director of OIA legal affairs at the defendant’s table. However, the county board had chosen not to have Carey weigh in on the issue since it had constituents on both sides of the debate.

Instead, he was present in order to answer any questions from Kelly and preserve the county’s right to present a case, if desired, in appellate court. Multnomah County was also represented at the hearing by attorney Sandra Duffy.

After grilling both sides on the complex issue, Kelly upheld the Gorge Commission’s argument that its land-use management plan was developed in accordance with federal law and qualified for a Measure 37 exemption. Under the state statute, which went into effect on Dec. 2, regulations do not have to be waived, or compensation paid, when a federal law requires the restriction of property use. If the three Oregon counties were able to remove Scenic Area rules in lieu of payment for lost property value, Kelly said the interstate compact set up to enact the federal law would be violated. Oregon and Washington have agreed in the compact, authorized by federal law, to administer uniform standards and Kelly felt that lifting regulations from one state would not be legal.

“This whole thing today really dealt with the technicalities of the law, it didn’t deal with the people involved in this issue — and that has been the real problem in the Scenic Area all along,” said GLU activist Rita Swyers of Hood River.

However, Bennett believed the June 1 court victory protected the greater public good by ensuring fairness. Commission staff attorney Jeff Litwak was assisted in his arguments by Gary Kahn from Friends of the Columbia Gorge and Denis Fjordbeck from Attorney General Hardy Meyers’ office.

“Obviously we think its good in the long term for the Scenic Area. Our view is that people in Oregon and Washington need to be treated equally,” said Bennett.

Day said Kelly’s decision was “disappointing but not unexpected” since debate has waged for years about exactly what authority the Gorge Commission answered to — and at first glance it seemed likely it would be under federal jurisdiction.

However, Day informed Kelly that the two states funded and provided oversight for the commission. He said the management plan the bistate agency had developed far exceeded the guidelines listed in the Scenic Act and therefore did not qualify for a Measure 37 exception.

“All in all, I felt the judge was fair, had studied the issues and gave us a fair shot,” said Day.

He said the verdict was not as disturbing as the fact that Kelly allowed attorney Fjordbeck to be involved in the case.

Although Fjordbeck claimed that the chief of staff for Gov. Ted Kulongoski had requested intervention by Meyers, Day countered that there was nothing in the written briefs to show that directive. And, without an express order by the governor or legislature, he said state law prohibited Meyers and his staffers from waging arguments that could adversely affect some citizens.

“What disturbed me the most was that there were no facts in the record to support the attorney general’s office doing anything but staying on the sidelines,” said Day.

After hearing Fjordbeck assert that she was present at the behest of the governor because the “implications of the case go well beyond the issues here,” Kelly granted her standing to back up the Commission’s arguments.

“I certainly can’t imagine that you are going to sit there and put your license on the line in any way,” said the judge.

Day anticipates that his clients will give him the nod to take their case to a higher court. Meanwhile, County Administrator Dave Meriwether said, in light of the new ruling, Mansur’s claim will most likely be rejected on the grounds that it deals with federal law.

And a suggestion will be made that he return with a new application if a higher court overturns Kelly’s verdict.

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