Judge orders West Linn family to pay fine for pool (Government out of control)

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.

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.

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 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.

true.

many cities just “declare” easements and figure everything is legal until a judge says otherwise. The thought is the peons never have enough money for real law suits and if there is one pro se suit, it never goes into class action status.

It is the ford pinto analysis the suits used to calculate the deaths were cheeper than the repairs.

Here in California they had a law ( the brown act i think) thay rural property owners could enter into to save on property taxes. It had reasonable restrictions on future development and a clear path to withdraw. Over the years they have made changes that are quit different from what people originally signed on to. The county has spent big bucks trying to enforce their onesided changes to an entirely different agreement.

I believe the proper constitutional interpretation of all “conservation easements” should be that they are a “taking”, and as a taking it requires the government to purchase ALL the property along the “easement”.

If “the people” actually want an area of land “protected” they are in effect declaring they want the land for “public use” and to deny the full and unobstructed private use of the land.

That constitutes a “taking” for “public use” and if that’s what the people demand of government then government is obligated to buy the land, and to buy it at fair market value, not fire sale value.

I think that if voters realized that it should be their tax dollars that pay for the full cost of “conservation easements”, they would authorize fewer of them and would restrict them to undeveloped lots not in demand by developers; reducing the costs they would incur in any “eminent domain” proceeding.

Who in the world sold them a pool without installation?

The installers know enough to check on permits.

Looks like they get to sue the pool company for proceeding with an illegal installation ...

Actually, most “water conservation “ districts never conserve a drop, nor do they actually protect anything except the district supervisors’ paycheck.

Yes, how foolish to think if they bought property they could improve it to suit their needs.

They knew about the restrictions when they brought the property and if the property was unsuitable for their needs, thne they should (a) brought another property someplace else that did nothave the restrictions: (b) work to legally change the law; or (c) comply with the code to obtain the required permit before installing the pool in violation of the code.

From reading your posts, I have the impression that you are against any property use restrictions of any kind even if one person's use of their property impair's the use of value of neighboring properties. Many suburban municipalities, for example, have a code provision that prohibits a landowner form installing a pool or deck within a certain distance of a common boundry with another residential property. The obvious reason is so that one neighbors' use of their pool and deck does not disturb another neighbor's good night sleep. Based upon your comments, however, I'm sure you wouldn't mind if your neighbor put a 24' above ground pool and deck with bright lights for all night parties, a 12 speaker sound system, kegalator, and a smokey fire pit six inches from the boundry line, right under your bedroom window.

Yes, how foolish to think if they bought property they could improve it to suit their needs.

Based upon your comments, however, I'm sure you wouldn't mind if your neighbor put a 24' above ground pool and deck with bright lights for all night parties, a 12 speaker sound system, kegalator, and a smokey fire pit six inches from the boundry line, right under your bedroom window.

Absurd. That would be a real detriment to the neighbor. So would running a commercial enterprise in a residential area. As I stated before, what was the harm to the neighbors or community in this case? Half million dollar fines? For a so-called wet land? This is government run amok. That you support it says more about you than my objection does about me. I can distinguish between the reasonable and the absurd.

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