Deadlock vote
A year-long
land use review for the Tabor Disconnect came to a head last week with a rare,
deadlock vote before the volunteer Historic Landmarks Commission. And here’s a twist: a seventh Commissioner, absent
thus far for hearings, public testimony, and debate among the Commissioners,
will be breaking that deadlock vote at a new hearing on February 9th.
All of the
six Commissioners involved thus far consider the application unacceptable as written by the Portland
Water Bureau – they all found it needed Approval Conditions -- but three of the
six found that even with Approval Conditions, the application failed to meet
the legal requirements. A motion before
the Commissioners to support approval of the application with Approval
Conditions failed in a 3-3 tie vote at the January 26th
hearing. Commissioners will return for
another public hearing on February 9th to consider new motions with
seven Commissioners.
Debate at the Jan 26 hearing before HLC
Commissioners
who voted “no” shared the same complaint, that is, that the file did not
contain enough evidence to support Water Bureau’s assertion that they can meet
the Historic Resource Approval Criteria (this criteria establishes preservation
standards for historic sites). Commissioners
had at other hearings requested the data they needed to vote in support of the
application, and Water Bureau has not provided that data. When further pressed at this hearing, Water
Bureau asserted they would add no new information to the record.
When an
application is found to lack evidence that the approval criteria will be met,
the law offers the hearing body two options:
deny the application and send the applicant back to improve the proposal
themselves, or take on the task of improving the application yourself by
carefully writing Approval Conditions.
To see land use attorney Ty Wyman’s analysis of related case law, read Exhibit
H-63 or click here.
Commissioners specifically cited enforcement
difficulties that will arise due to the lack of evidence in the file. MTNA
shares this concern. We’d like to avoid
future compliance/enforcement disputes by setting transparent, quantifiable
metrics within the Approval Conditions.
These metrics are currently not found in the Approval Conditions drafted
by BDS.
Commissioners specifically cited a failure to
meet approval criteria related to preserving character and reversibility. MTNA
shares these concerns. We’d seek an
additional Approval Condition that mandates a mitigation plan specific to
preservation tasks, and we’ve advocated for the 2009 Mount Tabor Historic Structures Report to be rolled into this
project timeline to serve as that mitigation work plan. And again, we’d like quantifiable metrics
tied to this action. This Approval
Condition was named as a minimum-to-move-forward by the “no” voting
Commissioners at the Jan 26 hearing.
Commissioners specifically cited the lack of
evidence regarding Water Bureau’s decision to cut and remove sections of pipe. MTNA
shares this concern, and directs interested parties to correspondence between
attorney Steve Wax and City officials about this topic (Exhibits H-4 and
H-130). EPA does not require Portland to
sever the open reservoirs from the drinking water system – EPA just requires
PWB to stop serving water from them in December 2015. The Oregon Health Authority does require PWB
to sever the open reservoirs from the system, but NOT immediately. As we’ve seen with Reservoir 6, a simple
disconnection is allowed on a “temporary” basis – at Res 6 “temporary” has lasted
5 years. PWB can stop serving water from
the open reservoirs in December, using the same disconnection technology
they’ve employed at Res 6 for the last 5 years, and be in compliance with the
EPA rule. They can also then wait until
Jan 2017, when the EPA rule revision is published, before they move forward
with the forceful severing work. This
strategy meets the EPA regulation and better protects the historic resources
than what is proposed in the current application. MTNA does not know of any Approval Condition
that can address this failure of the application – the lack of evidence in the
case file on this issue, and the possibility that their might be an alternative
that better protects these resources, may give the Commissioners reason to deny
the application.
If MTNA were still allowed to speak in this
case, which we are not because the
record closed on Jan 20, we’d advocate, at a minimum, for the following
Approval Condition additions and changes (our additions to the existing BDS Staff
Report added in red).
Condition B.
Following completion of the disconnection, Reservoirs #1, #5, and #6 must
continue to hold healthy, periodically refreshed water
with fill levels maintained for each reservoir at 65%-85% of capacity (as per
historic operational norm cited in Exhibit H-51). The reservoirs must be
maintained and cleaned, and may be emptied (partially or fully) for brief
periods, as necessary, to address system operational requirements, to maintain
security, regulatory compliance, or for safety concerns. Any proposal to
permanently remove visible water from the site, as required in the preceding
sentence, will require a follow-up land use application to be reviewed by the
Historic Landmarks Commission.
…
Condition
E. Within two years of the effective approval date of this application, the
following work shall be completed:
a.
all
recommended work projects categorized as Short- and Long-term priorities in the
2009 Mount
Tabor Reservoirs Historic Structures Report (Exhibit H-17b);
b.
an Implementation Plan addressing all
recommended work projects prioritized as Maintenance in the 2009 Mount Tabor
Reservoirs Historic Structures Report (Exhibit H-17b) will be written;
c.
all of
the strip-mall lighting (as shown in Exhibit H-19, slides 3 and 4) shall be
removed and replaced with historically appropriate fixtures (as shown in
Exhibit H-19, slides 1 and 2) including, where they exist, restoration of the
original historic light fixtures; and
d.
all
paved pedestrian and bicycle paths within the boundary of the Mount Tabor Park
Reservoir Historic District shall be repaired or replaced per City regulations
enumerated in Title 17, Chapter 28.
As to
tasks c. and d., the Mt. Tabor Neighborhood Association shall be notified
before (1) publication of any RFP and (2) actual construction pursuant to such
RFP.
Any fencing
that has been in place for more than one year within the boundary of the Mount
Tabor Park Reservoirs Historic District (for boundary see Exhibit A-1, pg 18)
-- such as the existing chain link fence currently between reservoirs 5 and 6
(see Exhibit H-19, slides 8 and 9) – will be replaced with a historically
sensitive alternative.
What Next?
Attend the February 9 hearing, at 1:30 pm (1900 SW
4th Ave, Room 2500A) to
show support to the Historic Landmarks Commissioners. They have been swimming upstream and could
use to see the community support for protecting these historic resources.
MTNA members
like myself see a path to put this case to rest today and avoid a lengthy
appeal. However, our attempts to open that conversation with Portland Water
Bureau have been rebuffed since December.
If Water Bureau continues to push this application forward without more
evidence, or quantifiable Approval Conditions that make up for the lack of
evidence, we are prepared for an appeal.
You can begin advocating NOW. Call
each City Council member (Nick Fish, Amanda Fritz, Steve Novick, Dan Saltzman,
Mayor Charlie Hales) and promote 1) a delay to the pipe cutting and 2) stronger,
quantifiable Approval Conditions that address preservation concerns.
