Monday, February 16, 2015

Reservoir debrief - HLC hearing #4, Decision

The Decision
At the fourth and final hearing before the Historic Landmarks Commission February 9th, the volunteer Commissioners continued to push for protections for Tabor’s historic resources.  A revised Staff Report was presented by BDS, with a new Approval Condition to mandate historic-preservation work for the reservoir structures.  While the language of this Approval Condition was not as specific (and therefore, not as easily enforceable) as we’d like it to be, its inclusion was a significant win.

A seventh commissioner joined the proceedings for the first time, and as it was immediately clear she would break the tie-vote in favor of an approval, the no-voters worked to strengthen the proposed Approval Conditions so as to afford the best protections available within this approval.  The Commission approved the Water Bureau application with significant Approval Conditions, you can see that decision here:  (the Approval Conditions are summarized on pages 30-31). 

Documentary filmmaker Brad Yazzolino offers his footage of the hearing here:

While we have won significant improvements to this construction plan, the Approval Conditions in this decision do have two significant flaws.

1) A massive factual error, caused by BDS.  As the Commissioners tried to pen stronger Approval Conditions on the fly at the hearing, they asked BDS employee Hillary Adam to clarify what the record stated were the historic fill levels for these reservoirs.  Without referencing the actual case record, Adam incorrectly and inappropriately answered from memory that fill levels were between 50% and 75%.  In fact, the December 23, 2014 letter from Portland Water Bureau to the Historic Landmarks Commission specifically answers this question, it is Exhibit H-51 in the case record, and on page 3 this letter states the historic fill levels are between 65% and 85%. 

As the Historic Landmarks Commissioners clearly intended to include accurate historic fill-levels in their Approval Condition, and as the record provides the accurate data point, MTNA immediately raised this mistake with the Hearings Clerk at the hearing, citing the exhibit number.  The Hearings Clerk carried the error to the BDS employee running the hearing, Tim Heron, and he refused to bring the mistake forward to the floor.  MTNA again addressed the mistake with these BDS employees at the close of the hearing, and again in writing within a few hours of the hearing.  MTNA also alerted the Landmarks Commissioners to this mistake, and the Chair initially responded with confidence that the error could be corrected because their intention to quote accurate historic fill levels was clear.  Yet, the official decision was published 4 days later with the significant fill-level error.  This error should have, and could have been corrected by now. 

2) It’s missing quantifiable metrics.  The language in the Approval Criteria could be more specific, such that compliance was easy to verify.  We are concerned that the existing language will lead to future compliance and enforcement disputes.

Is it over yet?
Nope.  Your water bureau, funded by you, in service to your community, directed by a Commissioner you elected, opposes mandates to care for Tabor’s historic resources, even those mandates set forth by Portland’s respected Historic Landmarks Commissioners.  We are disheartened to report that there is a high likelihood the Portland Water Bureau will file an appeal to have those mandates overturned.  BUT, the decision to appeal is one the Water Bureau will make in concert with the Commissioner in charge = Nick Fish.  And Commissioners are politicians, and politicians notice when the community calls in.

You can help NOW!
We need 1,000 phone calls or emails to Nick Fish’s office between now and February 27th.  Have everyone in your house make a separate call!  Tell Nick Fish to direct the Portland Water Bureau to accept the Landmarks Commission decision from February 9th – “Do not appeal!”  Spread the word widely about this call campaign, and track progress by logging your calls here:                

Nick Fish’s office: 503-823-3589

And while you are at it, call Amanda Fritz’s office and urge her staff to fix the mistake BDS staff Hillary Adam made at the hearing on February 9th, which resulted in a factual error in the Approval Condition, regarding historic fill levels.  “Fix the fill numbers!” 

Amanda Fritz’s office: 503-823-3008

The reservoirs need your financial support!
While the volunteers at MTNA would prefer not to litigate this case through an appeal, we are committed to doing what is necessary to protect water as an essential feature for the Tabor site, and to secure preservation work and planning for Tabor’s historic resources.  If Portland Water Bureau continues to reject their duties as stewards of the public’s historic resources, and they appeal the HLC decision, we will enter an expensive appeal process.  Additionally, if we can’t get corrected through less-litigious means, that significant error BDS staffers made in the Approval Condition language (regarding the historic fill-levels of Tabor’s reservoirs), then we may have to litigate the point.  And, it is likely that the community will have to litigate to get any of the mandates enforced going forward.  It is time to raise money.  Send a check of any size, it’s tax-deductible!

Make checks payable to “SE Uplift” and include “MTNA-reservoirs” in the memo line . 
Mail checks to:
SE Uplift
3534 SE Main St.
Portland, OR 97214

Tuesday, February 3, 2015

Reservoir debrief - HLC hearing #3

On January 26, the Tabor Reservoir Disconnect project had its third public hearing in front of the Historic Landmarks Commission (HLC).  Documentary filmmaker Brad Yazzolino makes his full video of the hearing available here:

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.

Documentary filmmaker Brad Yazzolino’s video of the Jan 26th hearing is here:               

To see all written comments from MTNA to the Historic Landmarks Commission for this case, click here