Unfortunately, this is not the statue.........
Posted on 10/03/2012 6:57:07 AM PDT by hiho hiho
One West Linn family may be soaking up the last warm days of the year in their backyard pool for the last time.
A municipal judge has ruled Sept. 24 that Troy and Gina Bundy must pay $72,000 in fines or remove their pool and restore their property within 90 days for the fine to be reduced to $18,000.
If the Bundys do not agree to removal the pool and restore the property, the city still has a couple of options it could pursue, such as nuisance abatement.
The Bundys first appeared in municipal court Sept. 4 and 5. The couple has been battling over the pool with the city of West Linn for several years. The pool — along with a patio, tiki torches, footbridges and a brick wall — was installed without a permit in a sensitive water resources area.
The city wants the pool removed and the backyard restored.
In a Sept. 10 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.
In court Sept. 20, the city attorney Rhett Bernstein recommended two options.
The first option was a reduction of the fine to $180,000. The second option was if the Bundys agreed to remove the pool and restore their property within 90 days, to further reduce the fine to $90,000.
Although the Bundys have been in violation of city code since the pool was installed in 2009, the statute of limitations restricts the fines to six months prior to the issuance of the citations. The citations were issued May 25.
Troy Bundy, an attorney represented his wife and himself, filed a motion to dismiss the case, alleging fraud on the court.
“This fraud had been perpetrated for nearly three years. Defendants have been labeled as liars and cheats in the press, they have incurred tens of thousands of dollars in attorneys fees and have had their lives turned upside down for a backyard improvement,” he wrote in a memo received Sept. 17.
Bundy contested that a document admitted in court as an exhibit was a permit application marked approved and dated Oct. 20, 2009. He said they have never been in violation because they had a permit the whole time.
Bernstein argued, however, that the document approved just the schematics of the pool, not the location of the pool.
Since the document was not new evidence, the judge determined it was not cause enough for a retrial. “I’m somewhat stymied by my options,” Karabeika said.
“This is such an irregular situation,” Bernstein said. “He’s had that document in all its glory since Aug. 6, 2012.”
Since May, the city has fined the couple $1,000 each per day, citing an ongoing code violation, which is retroactive to the time the pool was built in 2009, adding up to $2 million. However, due to statue of limitations, only six months worth of violations count.
The couple have been battling over the pool with the city of West Linn for several years. The pool and a patio were installed without a permit in a sensitive 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 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 negotiating a timeline for the pool’s removal and remediation without any resolution. Because there was no progress in the negotiations, city attorney Tim Ramis recommended pursuing a different route — thus, the hefty daily citations and court date.
During more than 11 hours of court testimony, the Bundys contended the city made the pool installation process confusing, tricky and cumbersome. They also argued that the area behind their home, which is owned by Portland General Electric, is not a wetland by the city’s definition and that it is a manmade wetland. They also laid blame on city staff as well as a former mayor for misinformation and discrimination.
The judge found all of those claims to be without warrant.
The court found that the Bundy’s home falls within a water resource area and that a special permit is needed to build a pool. The judge also found the Bundys were aware of the need for the permit before construction started.
Bundy brought up several concerns about the trial and how it was conducted during the disposition Sept. 20. Some of those the judge called “outrageous allegations.”
He fought against what he saw as excessive fines, comparing the proposed $360,000 fine to that of the $250,000 fine for kidnapping and the $10,000 fine for a three-time drunken driver.
“City’s belief that a permit violation should be fined at an amount that originally exceeded by four times the value of defendants’ home and a capital murder offense is absurd,” he wrote in his memo.
“It is a sad acknowledgement of this city’s connection with residents and families in West Linn when they believe a family of five’s backyard is more problematic than an individual who takes lives in his own hands by getting behind the wheel drunk and getting caught doing so not once, but three times. That the city attorneys and the city manager believe this permit violation is worth something between the fine for capital murder and human trafficking is incredibly disappointing. If this court honestly believes that such an amount is not unconstitutionally excessive, then may God help us all.”
Bundy also questioned why the case has become national news. He said it wasn’t because the pool was built, but the way the city has reacted to it with the hefty initial $2 million fine.
However, Bernstein accused Bundy for “orchestrating” behind the scenes, having received a phone call from a radio station reporter just hours before the disposition asking about the Oct. 20, 2009, document.
He also questioned the double citations, one against him and one against his wife, when there was only one violation. Bundy also said due process was not followed and that they were denied a jury trial.
The Bundys have poured a large sum of money into the pool installation and its aftermath. Bundy listed past and future expenses at $100,000 for pool installation for which he took out a loan, a planting plan and permits for revision at about $3,500, a DSL fine of $3,000, the purchase of $2,500 in mitigation credits from the wetland bank, a projected cost of $15,000-$20,000 to remove the pool and restore the property, an estimated $65,000 in attorney fees.
“How am I supposed to restore the land if you take all my money?” Bundy asked.
“The impact of the Bundys’ endeavors certainly has given the appearance that the process has been unnecessarily perpetuated and time-consuming and it would appear that a substantial amount of resources were expended on both sides attempting to resolve this situation,” wrote Karabeika in her ruling.
At this time, it is unknown what the Bundys will decide to do.
Journalism majors are *so* smart.
I thought it rained every other day in Portland?
Bad values result in bad laws.
Bad laws result in bad judgements.
This is why Christian values have been such an historical advantage for the US.
And why the ‘progress’ we have made away from those principles over the past 50 years has caused so much distress in our nation.
If the city has such an easement on “his” property, it’s not really his property. Legally it is, unfortunately.
Your private property is not yours. The king only lets you live on it for as long as it pleases him. Now you must pay for damaging the king's property......
Unfortunately, this is not the statue.........
“Wetlands” one of the major reasons the EPA is looking to hire only people with Pistol permits.
My former facilities engineer (who handled all the EPA and DEC crappola) was looking to the EPA for a job and they had over 200 positions available but she needed a pistol permit to qualify.
So Troy, $65,000 in attorney's fees... your charging yourself a pretty hefty fee there.
“If the Bundys do not agree to removal the pool...”
Someone in Portland needs to stop smoking pot and proofread her article.
Usually it does rain incessantly. Having enough water isn’t a problem here.
However, we’ve had a great summer this year!
I would fault him in purchasing a property with a easement on it. Never do that. It will only lead to a headache. Let this be a lesson for all.
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$65,000 in fees to an attorney who doesn’t understand the significance of an easement does seem a little excessive.
Rule #1 - get approval in writing from local government before building pools or structures on your land. I.e., get appropriate permits and authorizations. This is not a new concept in how local governments govern.
The kids will need jobs to pay dad back, lol.
“Your private property is not yours. The king only lets you live on it for as long as it pleases him. Now you must pay for damaging the king’s property......”
From the perspective of the elites of academia, the media world, and government we are all serfs in bondage.
Construction permits and inspections are something everybody has to deal with. The process can be a major pain.
But I’m more than a little dubious when an attorney claims the law is too confusing for him to have understood what he needed to do before building.
I assume he didn’t do all the work personally. Most contractors will require a copy of the approved permit before starting work.
I have no sympathy for these people whatsoever. Regardless of what I think of "wet-land" laws, the restrictions and permit requirements are a matter of public record and therefore, they knew or should have known about the restrictions and limitations upon the real property and the requirements for installing a pool before they brought the place. A standard title search should have disclosed the information and if they didn't understand the title report, then I'm willing to bet that they closed on the propery without an attorney.
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.
They took a chance and lost and now they are whining about the consequences. I have been practicing land use litigation for almost thirty years and municipalities often hire me to prosecute code violations. I deal with these type of people all the time: They think the law doesn't apply to them; they do what they want when they want without concern for the law, their neighbors, public safety, or anyone but themselves; and they refuse to negotiate in good faith; and when the municipality finally decidesd to enfoce the law, they cry and whine and complain about how they are being unfairly targeted. Cry me a river.
You didn’t build that.
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