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: http://vimeo.com/117979561

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: http://vimeo.com/117979561               

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

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