HomeMy WebLinkAbout2007-106 Findings - Nevada St LID
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
June 19, 2007
IN THE MATTER OF RESOLUTION LEVYING SPECIAL
BENEFIT ASSESSMENTS FOR THE NEV ADA STREET
LOCAL IMPROVEMENT DISTRICT FOR SIDEWALKS,
CURB EXTENSIONS, PLANTER AREAS, PEDESTRIAN
SAFETY AND DRAINAGE IMPROVMENTS AND
ASSOCIATED IMPROVEMENTS ON WEST NEVADA
STREET FROM HELMAN STREET WEST TO THE
BILLINGS RANCH SUBDIVISION
APPLICANT: City of Ashland
I. NATURE OF PROCEEDINGS
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) FINDINGS OF FACT
) CONCLUSIONS OF LAW
) AND ORDER
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This matter comes before the City Council for the City of Ashland pursuant to Section
13.20.060.E, for a final benefit assessment for the Nevada Street Local Improvement District for
Sidewalks, Curb Extensions, Planter Areas, Pedestrian Safety and Drainage Improvements and
Associated Improvements located on Nevada Street from Helman Street west to the Billings
Ranch Subdivision. This final quasi-judicial decision [Resolution and supporting findings]
incorporates prior preliminary quasi-judicial decisions, which were subjected to judicial review
in several Circuit Court proceedings identified herein.
On August 3, 2004, Council approved Resolution No. 04-30 to set a public hearing with intent to
form a local improvement district for sidewalk and traffic calming improvements to West
Nevada Street.
The Nevada Street LID boundary was approved by Council as being all those lots with frontage
on Nevada Street from Helman Street west to the Billings Ranch Subdivision (53 lots) and all of
those lots within the Billings Ranch Subdivision (72 lots).
The Council, following proper public notice held a public hearing on September 7, 2004 at
which time a staff presentation was made, citizen testimony received and exhibits presented.
Council approved Resolution No. 04-31 authorizing and ordering the improvements to Nevada
Street consisting of sidewalks, curb extensions, planter areas, pedestrian safety improvements
and drainage and associated improvements.
As authorized under Resolution No. 2004-31, the City of Ashland solicited bids and awarded a
contract to LTM Inc. for the construction of the Nevada Street LID.
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On May 17, 2006, in Bullock v. City of Ashland, Case No. 06-1000-Z4(7), Circuit Court Judge
Mark Schively dismissed with prejudice Petitioner Bullock's attempt to challenge by writ of
review the decision to award the construction contract for the Nevada LID improvements.
On May 17, 2006, Circuit Court Judge Mark Schiveley issued an Opinion in Art Bullock v. City
of Ashland Case No.04-3971Z3(7) (attached hereto and incorporated herein by this reference)
finding against Petitioner Bullock and for the Respondent City, on every allegation of error
concerning the Nevada Street LID, excepting that the City was directed to make and return
findings to the Court to support its decision in certain respects and excepting a calculation issue
in which petitioner was not harmed.
The Findings, Conclusions and Orders adopted by City Council on June 5, 2006 in response to
the Circuit Court directive are attached hereto and made a part of these findings by this
reference.
On July 28,2006, after review ofthe City's June 5, 2006 findings, Circuit Court Judge Mark
Schiveley issued a second Opinion in Art Bullock v. City of Ashland Case No.04-3971Z3(7)
(attached hereto and incorporated herein by this reference) again finding against Petitioner
Bullock and for the Respondent City, on every remaining allegation of error concerning the
Nevada Street LID, including specifically a rejection of Petitioner's allegation that the
boundaries of the LID were arbitrary and accepting the City's finding that Paula Brown did not
benefit because of her position as Public Works Director for the City of Ashland.
The Court's independent review of the Council's actions and findings in favor of the Council and
against Petitioner on virtually every allegation of error, supports the Council's final findings and
determinations in this case.
On March 23,2007, Council adopted Resolution No. 2007-09 setting a date of May 1,2007 for a
public hearing to consider objections to the proposed final assessments to be levied against
owners within the Nevada Street Local Improvement District. The final cost for the project was
$295,837.63 of which $79,090.00 will be paid by assessment based upon a rate of$632.72 per
assessment unit.
On May 1, 2007 a public hearing was opened and immediately continued to May 15,2007;
thereafter, on May 15, 2007 a public hearing was held at the Ashland City Council Chambers at
1175 East Main Street. The Council first considered and dispensed with written challenges for
bias and prejudgment by Mr. Bullock. Following the hearing Council adopted Resolution No.
2007- 17 Levying Special Benefit Assessments for the construction of the Nevada Street Local
Improvement District; however, the effectiveness of the Resolution was delayed and continued
to June 5,2007 and subsequently continued to June 19,2007 to facilitate revision to these
Findings to address, inter alia, challenges made at the hearing. On June 19, 2007, the Council
adopted the Findings of Fact, Conclusions of Law and Order set forth herein and re-affirmed and
readopted Resolution 2007- 17.
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II. FINDINGS OF FACT
1) The Nature of Proceedings set forth above are true and correct and are incorporated
herein by this reference.
2) The City Council finds and determines that it has received all information necessary to
form the Local Improvement District and allocate the assessment based on the entire record of
this proceeding, including but not limited to the Council Communications dated August 3, 2004
and September 7, 2004, March 20,2007 and May 1,2007, as well as the public hearing
testimony and the exhibits received at the public hearings on September 7, 2004, and on May 15,
2007.
3) The record of this final quasi-judicial decision includes the official City Recorder's
Office Record of proceedings before the Council and Circuit Court record of this matter,
including preliminary quasi-judicial decisions and excluding legislative maters, as determined by
the Circuit Court in Circuit Court Case No. 043971Z3(7); this Court record includes all the
filings and opinions in the consolidated cases and is supplemented by the record of the City
Council hearing on May 15,2007, including but not limited to the Exhibits and documents
referenced herein:
Exhibit 1 - Council Communication dated August 3, 2004
Exhibit 2 - Minutes of the August 3, 2004 Council meeting
Exhibit 3 - Resolution No. 04-30 setting a public hearing
Exhibit 4 - Council Communication dated September 7, 2004
Exhibit 5 - Minutes of the September 7, 2004 Council meeting
Exhibit 6 - Resolution No. 04-31 authorizing and ordering the improvement of
Nevada Street under the Nevada Street LID No. 85
Exhibit 7 - Council Communication dated March 20, 2007
Exhibit 8 - Minutes of the March 20, 2007 Council meeting
Exhibit 9 - Council Communication dated May 1, 2007
Exhibit 10- Minutes of May 15,2007 Council meeting, including
Exhibits entered.
4) At the hearing on May 15,2007 Mr. Art Bullock asked to include in the record of this
proceeding the minutes of various neighborhood meetings which he attended in early 2004,
purportedly to obtain full disclosure of the substance of ex parte communications received by
City Councilors who attended. These "minutes" also further his argument that certain
Councilors had prejudged or were biased toward the LID application; The Council will allow
such minutes (those already in possession ofthe City) to be included in the record but finds and
determines that: (1) the minutes concern early stages in the LID development process prior to
initiation of any formal proceedings, including quasi-judicial proceedings; (2) Mr. Bullock is the
author of such minutes, making the substance of any ex parte communications known to him,
and the accuracy of such minutes were disputed by participants and by the Council members
who participated; (3) the referenced minutes are not official public records or business records
but rather represent hearsay documents prepared by an interested party in litigation with the City;
(4) the Council finds and determines that Mr. Bullock's "minutes" are not reliable or
independently verifiable evidence of bias or prejudgment on the part of any City Councilor or the
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Mayor as it relates to the quasi-judicial decisions herein involved in the formation and allocation
of costs under the LID. The findings set forth below concerning bias and prejudgment
challenges are specifically incorporated herein by this reference.
III. FINDINGS REGARDING BOUNDARY DETERMINATION
The June 5, 2006 Findings ofthe City Council, and the supporting evidence in the record,
concerning the basis and rationale for the determination of the LID boundary were reviewed and
accepted by the Circuit Court in Art Bullock v. City of Ashland, Case No.04-3971Z3(7). The
Court found the City chose the boundaries purposefully and the City articulated a rational basis
for its choices both in the findings and earlier in the staff memos in the record upon which the
Council based its decision. The June 5, 2006 findings, approved by the Court, are repeated and
readopted verbatim here, except that minor tense changes are noted to reflect the completed
status:
The City Council finds that it has received all information necessary to make a decision
based on the Council Communication dated August 3, 2004 and September 7, 2004,
public hearing testimony and the exhibits received.
The proposed LID is in the best interest of the City. Evidence presented indicated that
average traffic speeds along Nevada were in excess of posted speed limits. With the
anticipated increases in traffic volume resulting from the construction of the Billings
Ranch Subdivision, there would be an increased chance for pedestrian, vehicular conflict.
Nevada Street did not have any sidewalks between Helman Street and the Billings Ranch
Subdivision. The pedestrian improvement project was in the City's best interest as it
[provided for] improved pedestrian safety by reducing overall vehicular traffic speeds
through traffic calming and provided sidewalks for pedestrian use in an area along a
pedestrian route used by school children where none [previously] exist.
The proposed LID boundary included lots fronting on Nevada Street (53 properties) from
Helman Street west to and including the new Billings Ranch Subdivision as depicted on
the map attached to Resolution No. 04-30. This boundary was selected as these 53
properties would be directly benefited by the improvements along Nevada Street. Helman
Street marks the beginning of the residential district and since sidewalks are already in
place between Helman Street and Oak Street, that block was not considered for inclusion.
The Billings Ranch Subdivision (72 properties) was included as a condition of their
planning approval in accordance with the requirements of AMC 18.80.060 B.2. which
reads:
B. Improvements requirements.
Improvements to be installed at the expense of the land divider are as
follows: . . . 2. Exterior unimproved streets. When part of a proposed
subdivision or major land partition abuts an existing unimproved street, the
property owner, or a representative, shall satisfy the minor lands partition
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improvements requirements and sign an agreement in favor of improving
said street in the future to full City standards as outlined in this Section.
The proposed boundary was consistent with other neighborhood sidewalk and traffic
calming LIDs (Helman, Penny/Palmer) as only those properties directly on the affected
streets or within subdivisions for which participation was required pursuant to AMC
18.80.060 B.2. were included in the LID boundary area.
There had been some discussion that all of the Quiet Village Neighborhood or at least all
ofthe homes north of Nevada Street should be included in the LID boundary as all will
be affected by the improvements as most all residents travel some part of Nevada Street
to access their homes. The only LID in recent years that went beyond the immediate
street improvement area was Tolman Creek Road. Tolman Creek Road is considered a
major collector / arterial street and the improvements were full street improvements
(street reconstruction and overlay, new storm drain system, sidewalks on both sides,
traffic calming planters, etc.). In that case, the boundary was extended to include all
homes that directly and indirectly accessed Tolman Creek Road. This requirement was
further reinforced by the fact that nearly all subdivisions were required to participate in
the LID as a condition of the planning approval pursuant to the requirements of AMC
18.80.060 B.2.
It was necessary that the Nevada Street Sidewalk and Traffic Calming LID be formed by
Council initiative in accordance with AMC Section 13.20.020. Although staff has worked
with the neighbors and has received general consensus for the formation of the LID,
actual signed petitions in favor of the LID had not been collected by staff. However, in
August, 2004 Staff sent a letter to each of the property owners within the LID boundary
and requested they return a postcard marking their choice regarding formation ofthe LID.
A clear majority of the respondents were in favor of the LID. This information was
presented at the public hearing.
The proposed Nevada Street Local Improvement District is consistent with the 2002-
2003 Capital Improvement Plan and identified in the 2002-2003 budget adopted by
Council in June, 2001.
The City Council did not receive a remonstrance sufficient to postpone the construction
ofthis project.
The City Council finds and determines that the boundaries of the Nevada Street LID, as it was
found in the original 2004 decision and clarified in June 2006, reflect the properties to be
benefited by the assessment and such determination was purposeful and rationally based, and not
subject to attack as being arbitrary. No change to the boundary is proposed with this final
determination to allocate the assessment and no new evidence concerning the basis for
determination of the boundary has been submitted. The Council accepts the Circuit Court's
independent determination of the defensibility of such boundary determination. Further, the
Council accepts that the prior adjudication of this issue in Circuit Court precludes re-litigation of
the defensibility of the boundary determination after this final decision. There being no change
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in the boundaries, nor any new evidence contradictory of the determination, the Council finds
and determines the LID boundary is established as set forth and described in the approval
Resolution and supporting documents.
IV. FINDINGS REGARDING CONFLICT OF INTEREST
The June 5,2006 Findings ofthe City Council, and the supporting evidence in the record,
concerning the decision to proceed with the LID on September 7, 2004, notwithstanding the
disclosed conflict of interest of Paula Brown, the City Public Works Director, were reviewed and
accepted by the Circuit Court in Art Bullock v. City of Ashland, Case No.04-3971Z3(7). The
Court found that the Council's findings, i.e. that Paula Brown did not benefit because of her
position, were adequate to dispose of the issue. The Court had earlier noted that record reflected
evidence of disclosure and that Bullock failed to exhaust his administrative remedies under ORS
244. Mr. Bullock has not submitted any new evidence concerning this matter, but has repeated
prior unsuccessful allegations. The Court noted that even if Ms. Brown's disclosure of Conflict
was inadequate, the Court cannot void the City's decision to proceed solely because ofthat
inadequacy [referencing ORS 244.130(2)]. Accordingly, the June 5, 2006 findings, approved by
the Court as adequately disposing of this issue, are repeated and readopted verbatim here, except
that minor tense changes are noted and the findings are elaborated upon below the quotation:
The City Council finds that it received all information necessary to form the Local
Improvement District based on the Council Communications dated August 3, 2004 and
September 7, 2004, public hearing testimony and the exhibits received.
At the September 7, 2004 Council meeting Public Works Director Paula Brown verbally
declared a conflict of interest as she and her husband owned property at the corner of
Nevada Street and Cambridge Street (800 Cambridge Street) which is located within the
assessment district boundary and property which is located at 810 Cambridge which is
immediately outside the LID boundary proposed by staff and adopted by the City
Council. When Ms. Brown was initially assigned the task of putting together the LID,
Ms. Brown notified then City Administrator, Gino Grimaldi, of her property ownership
on Cambridge Street. Ms. Brown took efforts to mitigate any conflict by relegating all
decisions regarding the formation of the assessment boundary, the allocation of the
assessment to each benefited property and other similar issues to Project Manager James
Olson.
Council determined that Ms. Brown did not benefit financially from her ownership of the
property resulting from her position within the City and that she had taken the steps to
ensure that any conflict was mitigated. Any defect in not following state law precisely
was insignificant and had no bearing on the validity of the proposed formation of the
Local Improvement District. It was further determined that Ms. Brown did not receive
any benefits or considerations beyond that which would have been available to any other
citizen. Council determined that the conflict should not stop the proposed formation of
the local improvement district as nothing relating to the conflict would change the
proposed boundary, the needed improvements, nor the proposed assessments.
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The City Council finds and determines that there is no allegation or evidence of any actual or
potential conflict of interest under ORS Chapter 244 on the part of the final decision makers in
this matter, the Ashland City Council. The decision to proceed with the allocation and
imposition of the final assessment pursuant to Chapter 13 is unaffected and unchanged from the
earlier decision to proceed as the Council found in the original 2004 decision and clarified in
June 2006 in the findings. No new evidence concerning this staff conflict matter has been
submitted. The Council finds and determines that the Council's 2004 action based on the
disclosures in the record and the 2006 Findings adequately disposed of and removed Ms.
Brown's conflict situation. While Mr. Bullock refers to this as a "key issue," he fails to
demonstrate the required 'fatal link' [citation omitted] between the allegations of error by Ms.
Brown (unproven via required ORS 244 processes) and this the final decision for assessment of
the LID. The Council further accepts the Circuit Court's independent determination of the
defensibility of the Council's decision to proceed in light of the disclosed conflicts; said
determination is equally applicable to this final decision. Further, the Council accepts that the
prior adjudication ofthis issue in Circuit Court precludes re-litigation of the defensibility of the
conflict issue after this final decision. (New allegations by Mr. Bullock regarding bias and
prejudgment are addressed below). There being no change in the pertinent facts, nor any new
evidence contradictory of the prior determination, the Council finds and determines the decision
to proceed with this final decision in light of the disclosed conflict is appropriate and defensible.
V. FINDINGS REGARDING QUALIFICATIONS OF
MEMBERS OF DECISION MAKING BODY
Mr. Art Bullock submitted extensive written bias and prejudgement challenges to the
qualifications of Councillors David Chapman, Cate Hartzell, and Kate Jackson, together with a
challenge to Mayor Morrison. (The City's speaker request form provides that bias and
prejudgement challenges must be made in writing with supporting documentation and that
interruptions and oral presentations will not be permitted.)
Mr. Bullock's written challenges identify the following legal standard for bias and prejudgement:
Supreme Court: "The public interest in appearance of propriety over public interest in
efficiency is so great in judicial proceedings that readjudication is required regardless of
whether decisions were fair when appearance of impropriety is present" 1000 Friends of
Oregon v. Wasco County Court, 304 Or. 76, 742 P.2d 39, 1987.
The Council finds and determines that the standard identified by Mr. Bullock, the "appearance
test" is erroneous. The quotation is not the holding (or even a quote) found in the Supreme
Court's opinion in the Wasco County case. This LID final assessment Resolution is a final
quasi-judicial decision, not a judicial decision. In a quasi-judicial decision, a local decision
maker must follow the procedures applicable to the matter before it in a manner that does not
prejudice the substantial rights' of the parties. The substantial rights of the parties include 'the
rights to an adequate opportunity to prepare and submit their case and a full and fair hearing.'
Muller v. Polk Countv. 16 Or LUBA 771. 775 (1988). For example, in quasi-judicial land use
decisions, an allegation of decision maker bias, accompanied by evidence of that bias, may be
the basis for a remand under ORS 197.835(9)(a)(B). Halvorson Mason Corp. v. City of Depoe
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Bay, 39 Or LUBA 702, 710 (2001) Bias as discussed herein includes both prejudgment and
personal bias.
In Oref!on Entertainment Corvo v. Citv of Beaver ton , 38 Or LUBA 440, 445 (2000), affd 172 Or
App 361, 19 P3d 918 (2001), LUBA set out the standard for establishing decision maker bias in
quasi-judicial land use cases. The standard is instructive here:
"To demonstrate actual bias, 'petitioner has the burden of showing the decision maker
was biased, or prejudged the application, and did not reach a decision by applying
relevant standards based on the evidence and argument presented [during the quasi-
judicial proceedings].'" (quoting Spiering v. Yamhill Countv, 25 Or LUBA 695, 702
(1993)).
In addition, this burden is significant. That is:
In order to succeed in a bias claim, petitioner must establish that the decision maker was
incapable of making a decision based on the evidence and arguments of the parties.
Sparks v. City of Band on. 30 Or LUBA 69. 74 (1995). Further, bias must be
demonstrated in a clear and unmistakable manner. Schneider v. Umatilla Countv. 13 Or
LUBA 281.284 (1985). See also Lovejov v. City of Depoe Bav, 17 Or LUBA 51,66
(1988).
Also, LUBA recently reviewed the impartiality expectations of quasi-judicial decision makers:
As we have explained on many occasions, local quasi-judicial decision makers, who
frequently are also elected officials, are not expected to be entirely free of any bias.
Friends of Jacksonville v. City of Jacksonville, 42 Or LUBA 137,141-44, affd 183 Or
App 581, 54 P3d 636 (2002),' Halvorson-Mason Corp. v. City of Depoe Bay, 39 Or LUBA
702, 710 (2001); Oregon Entertainment Corp. v. City of Beaverton, 38 Or LUBA 440,
445-47 (2000), affd 172 Or App 361, 19 P3d 918 (2001). To the contrary, local officials
frequently are elected or appointed in part because they favor or oppose certain types of
development. 1000 Friends of Oregon v. Wasco Co. Court, 304 Or 76, 82-83, 742 P2d
39 (1987); Eastgate Theatre v. Bd. of County Comm'rs, 37 Or App 745, 750-52,588 P2d
640 (1978). Local decision makers are only expected to (1) put whatever bias they may
have to the side when deciding individual permit applications and (2) engage in the
necessary fact finding and attempt to interpret and apply the law to the facts as they find
them so that the ultimate decision is a reflection oftheir view of the facts and law rather
than a product of any positive or negative bias the decision maker may bring to the
process. Wal-Mart Stores, Inc. v. City of Central Point, 49 Or LUBA 697, 709-10 (2005),
appeal pending. Heiller v. Josephine County (LUBA 2005)
Procedurally, after the enumerated bias challenges by Mr. Bullock were summarized by Legal
Counsel, the challenged members made and/or agreed to the following statement of impartiality:
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"I have not prejudged this application and I am not prejudiced or biased by my prior
contacts or involvement; I will make this decision based solely on the application of the
relevant criteria and standards to the facts and evidence in the record of this proceeding."
Other members of the Council were asked if they accepted the statement and all members did in
fact accept the impartiality of the challenged members. No member requested removal of any
other member. The Council finds and determines based on the record of this proceeding, that the
Mayor, Councilor Chapman, Councilor Hartzell and Councilor Jackson are capable of making
this decision and did make their decisions on this LID, including the subject final assessments,
based upon the application of the facts in the record as applied to the relevant standards in the
Code. Any bias, if any exists at all, that the Mayor or Councilors may have had against Mr.
Bullock or his position on the LID was placed to the side while the Mayor and Council
performed the duties of their office as related to this quasi-judicial decision. Roberts v. Clatsop
County (While alleged statements may indicate a certain predisposition, that is not enough to
provide a basis for reversal or remand, in light of his assertions that decision maker would
consider the application on its merits and vote with an open mind.)
The Council finds and determines that Mr. Bullock has not demonstrated bias or prejudgement
on the part of the Mayor or the other Councilors in a clear and unmistakable manner. The
allegations were not individually addressed one by one by the members at the hearing, but the
Mayor and other Councilors generally stated the allegations were false and misleading. Several
other members of the Council noted the allegations were inappropriate to the proceedings.
For the most part, the allegations submitted by Mr. Bullock are unsupported with reliable
verifiable evidence, although certainly verifiable evidence in the form of City video or audio
. recordings, findings and minutes could have been submitted, such evidence was not provided. In
the case where evidence was provided, Mr. Bullock's allegations are clearly exaggerations or
simply erroneous. For example, Mr. Bullock provided a DVD of the 4-3-07 City Council
meeting concerning the Schofield/Monte Vista LID hearing. As regards the allegations against
the Mayor: (1) Mr. Bullock asserts personal attacks against him during the hearing on the
Schofield/Monte Vista LID. Mr. Bullock makes factual assertions and characterizations (e.g.
"viciously attacked") in his challenge; the video record shows no vicious attack, rather it shows
Mr. Bullock failing to follow the directions ofthe presiding officer. (2) Similarly, Mr. Bullock
alleges that his bias challenge in the same proceeding was arbitrarily limited to three minutes;
what the video record shows is that Bullock refused to submit his bias challenge in writing as
clearly stated on the speaker request form; Mr. Bullock and all other participants in the
controversial LID proceeding were given 3 minutes to present their oral testimony (with no limit
on written submissions). (3) Mr. Bullock also alleges in the same hearing that he was denied a
right to speak on the merits. Again, Mr. Bullock refused to submit his bias challenges in writing
and used his three minutes to address such challenges; then demanded to be treated specially,
that is to receive 3 more minutes than every one else. Mr. Bullock is not an owner of property
which would be subject to assessment in the Schofield LID, yet he demanded more time to
present oral testimony than owners were provided. Again no limitation was placed on written
objections. (4) Again, Mr. Bullock alleges he was denied a right to make oral presentations of
bias and denied his right to speak. He alleges an unannounced new procedure. The Mayor read
from the speaker request form, which all participants are required to complete prior to addressing
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the Council. The form clearly states that such requests must be submitted in writing. The Mayor
indicated such forms were in the back of the room. (5) Mr. Bullock attributes certain statements
to the mayor, including public pressure to stop him from speaking and "shut him up". No
verifiable evidence supports this allegation. (6) Again Mr. Bullock asserts another personal
attack by the Mayor after the close of the record in the Schofield LID project, and further (7)
asserts he had no right to rebut the statements of the mayor made during deliberations in that
proceeding. Mr. Bullock is not a member of the Council and has no right to participate in
deliberations and no right to rebut the debate by Council during deliberations. The video record
shows no vicious attack., it does show the mayor stating clearly that Mr. Bullock is treated with
respect, but that he is expected to follow procedures as are all participants. (8) Mr. Bullock also
alleged denial of an opportunity to make oral Conflict of Interest challenges from the floor
during the Helman Bath hearing before the City Council in 2006. No evidence to verify this
allegation was submitted, despite the existence of written findings, minutes and DVD records of
the unappealed land use decision. (9) Mr. Bullock alleges the Council and not the mayor has the
authority to control his conduct at meetings in making oral challenges from the floor. (Despite
the Council's adoption of Roberts Rules of Order and the clear authority of the Presiding Officer
under Roberts Rules to control the conduct of non-members) (10) Mr. Bullock again asserts the
Mayor denied his right to orally make a conflict of interest challenge in the Helman Baths
project. (11) Mr. Bullock identifies an alleged error in the Helman Bath project related to his
alleged right to point out alleged errors from the floor -regarding repeating disclosure of
potential conflict of interest at every meeting. (12) Mr. Bullock alleges inter alia the mayor
conspired to violate the 120 day rule in the Park Street Condo case and to blame him [Bullock]
for the delay which led to the mandamus proceeding. These allegations are completely
unsupported. (13) Mr. Bullock alleges he reported misconduct by City employees in 2004 and
was subjected to verbal assaults. His allegations are unsupported by verifiable evidence. (14)
Mr. Bullock alleges the Mayor prevented him from presenting audio-visual matters in a 2006
meeting. This allegation is not supported with verifiable evidence. (15) Mr. Bullock asserts
failure ofthe Mayor to supervise the Public Works Director, Paula Brown, concerning the
conflict of interest issues which were already litigated adverse to Bullock in the Circuit Court
cases. The allegation is irrelevant and unsubstantiated. (16) Mr. Bullock alleges the Mayor is
responsible for opposition to Mr. Bullock's position on the City list serve on the proposed
Charter amendment. This allegation is unsubstantiated.
As regards Councilor Jackson, Mr. Bullock makes several allegations, without verifiable
supporting evidence, that Councilor Jackson (1) yelled at him, "viciously and personally
attack[ing]" Bullock during an encounter while Mr. Bullock was campaigning against the
proposed Charter amendment, a measure Councilor Jackson supported. Councilor Jackson
acknowledged that they had contact and that she was concerned for her safety given Mr.
Bullock's behavior. Mr. Bullock also alleges that Councilor Jackson is incapable of making the
decision based on prejudgment because she ignores the law and on several key issues in the
Nevada LID she avoided direct application of the applicable law. This allegation is
unsubstantiated and extraordinarily vague. As with the Mayor, Bullock also alleges (against
Councilors Jackson, Chapman and Hartzell) failure of the Councilors to supervise the Public
Works Director, Paula Brown, concerning the conflict of interest issues. As stated, the Circuit
Court previously found the City's findings on such issues were adequate to dispose of the
underlying conflict and that no member of the decision making body had such a conflict of
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interest. The allegation is prejudicial. Bullock also states that Jackson specifically 'was angry at
those who attacked stafP the implication being that because Bullock attacked Brown, she could
not be impartial in the Nevada LID. The Councilor, like the other challenged members agreed to
make the decision based on the application of the facts in the record to the applicable law,
Bullock's allegations are mere speculation. Similarly, the allegations common to many
members, that prior "personal involvement" such as attendance at early meetings with citizens,
attempts to facilitate public input or avoid conflicts, or defense of staff, are defeated by
commitment of the Council and Mayor to keep an open mind and make the decision based upon
the facts in the record as applied to the applicable law.
Finally, as regards Councilors Jackson, Hartzell and Chapman, Bullock alleges undisclosed ex
parte communications with Brown, Olson and Knox (City employees) and a failure to allow
rebuttal of such ex parte communications. Bullock makes similar allegations of undisclosed staff
contacts in another submission against the Mayor relative to Brown. [Bullock imports here the
land use hearing announcement of ex parte contacts and right to rebut from Oregon Planning
Law, Chapter 227, ORS 227.180(3)]. Ifthis planning statute directly applies to this quasi-
judicial LID assessment, the first and obvious exclusion from the rule is that staff contacts are
not ex parte contacts under the law. Further, there is no right to rebut advice from staff or legal
counsel for that matter regarding interpretative issues and the application of the facts to the law.
[citation omitted]. The Council finds and determines that Bullock has had a full and fair
opportunity to present contrary evidence to rebut the substance of any and all alleged ex parte
communications he has identified in the three year record of this LID proceeding, including
emails and other communications or contacts he has referenced in his litigation or in his
numerous communications with the City.
Further many ofthe allegations concerning unrelated or irrelevant matters are mere surplusage to
this quasi-judicial decision. A quasi-judicial decision is reached by application ofthe facts to the
applicable law. The quasi-judicial decision makers have committed to this task. They have also
committed to set aside irrelevant and prejudicial matters. Bullock makes prejudicial and
inflammatory claims that staff acted improperly, specifically attacking the conduct of the Ms.
Brown and former employee Mark Knox. These allegations were made previously in the Circuit
Court litigation. The Court had noted Bullock failed to exhaust administrative remedies available
under ORS 244 as regards the alleged conduct of both individuals. Mr. Bullock continues in his
submittal to make inflammatory comments regarding the conduct of Mark Knox alleging that
Knox's conduct biased councilors and prejudiced the decision. These continuing allegations are
in direct conflict with the Court's May 17,2006 opinion which specifically found:
Alleged Errors 24-27 concerning employee Mark Knox are without merit. There is no
evidence in the record that Mr. Knox played any role that improperly influenced the City
Council in its September 7,2004 deliberations. To the extent the allegations concern Mr.
Knox's actions related to the Nevada LID apart from the City Council's deliberations,
they must be addressed, if at all, pursuant to ORS 244.260.
The key finding is that such prejudicial matters, even if they exist, did not influence the
Council's decision in this matter. It is extraordinarily difficult to invalidate the final decision
maker's decision based upon the conduct oflower level decision-makers. E.g.. Nez Perce Tribe
Page ] ] of] 5
v. Wallowa County, 47 Or LUBA 419, 432, affd 196 Or App 787,106 P3d 699 (2004); Utah
Int'l v. Wallowa County, 7 Or LUBA 77, 83 (1982) (it is necessary to show a 'fatal link' between
the alleged lack of fairness at the planning commission level and the decision of the final
decision maker). The Council finds and determines that Mr. Bullock has not demonstrated such
a "fatal link" concerning any alleged misconduct by staff, prior preliminary decisions in this
matter and this final decision.
Mr. Bullock's opposition to the LID formation and assessment of property owner by the "791
Glendower Trust" (for which he asserts he is Trustee) has been evident since early on in the over
three year process to establish the LID, contract for, and construct the improvement, and finally
assess the benefited properties a little over $600. His position in his bias and prejudgement
challenges appears to be, at least in part, that because the Mayor, Councilor Jackson, Councilor
Chapman and Councilor Hartzell have taken or have political positions (some completely
unrelated to the LID improvements) which are contrary to his positions, they should be
disqualified from participation in any matter in which he chooses to participate. In the case of
the Mayor, Mr. Bullock's disagreement appears to be primarily in the area of the proper manner
for the conduct of quasi-judicial proceedings, specifically in allowing him to speak when he
deems it appropriate. The Council finds and determines that the Mayor and City Councilors are
expected to have political positions as elected public officers. That their positions may at times
be contrary to political positions taken by Mr. Bullock or other citizens, and that this fact does
not demonstrate in a clear and unmistakable manner an inability on the part of these elected
officials to apply the facts to the law in a quasi-judicial matter before the City Council. All the
City Councilors and Mayor declared their intent to apply the law to the evidence in the record
and performed their duty. As regards the conduct of public meetings, the Mayor, as presiding
officer, has clear authority to control the conduct of non-members. Non-members who disrupt
public meeting may be removed pursuant to Roberts Rules of Order or criminal statutes. Mr.
Bullock is not a member of the governing body, and must comply with the directions of the
presiding officer. That Mr. Bullock feels he should have more opportunity to participate in
quasi-judicial proceedings, specifically to orally making challenges to members for bias or
conflict of interest or "points of order" from the floor, or question members of the Council, is
not personal bias against Mr. Bullock but simply the normal conduct of a public meeting by the
Presiding Officer. Mr. Bullock, as a non-member, cannot assert bias and prejudice based on
denial ofthe rights and powers to him which are afforded only to duly elected members of the
governing body. The Council finds and determines that these challenges to the qualifications of
Councilors Jackson, Chapman, Hartzell and Mayor Morrison are not well founded.
It is unfortunate that at times prejudicial or inflammatory material is introduced into the record of
quasi-judicial proceedings and other government proceedings. Quasi-judicial decision makers,
being human, may be tempted to react to such material or base the decision on improper matters.
Accordingly, it is important that decision makers exercise discipline and set aside such
inflammatory or prejudicial matters and exercise their quasi-judicial duties properly. This can be
especially difficult for volunteer Council members in public service, when, as in the challenges
and litigation attributed to Mr. Bullock, attacks are personal or prejudicial, not just for the
Council members and the Mayor but as regards staff. As the Court noted, the remedy for
inappropriate conduct by staff may be proceedings under ORS 244; but to import mere
accusations of such conduct into this quasi-judicial decision is an attempt to introduce prejudicial
Page 12 of 15
matters - to cause the decision makers to make a decision for improper reasons. Accordingly,
the Council expressly finds and determines that although Mr. Bullock's written materials are
inflammatory, the Council expressly rejects such improper considerations in applying the facts in
the record to the applicable standards in Chapter 13. More precisely, the Council's action in
making the final assessment by Resolution is mostly a matter of mathematical calculation as set
forth in the staff analysis regarding the assessment unit and the decision to use other sources of
funds to address the remaining funding of the improvements. These routine matters are
adequately and fully supported by the staff analysis and are in the best interest of the City to
proceed with the assessment. This final decision also incorporates prior preliminary quasi-
judicial decisions which were unsuccessfully challenged in Circuit Court by Mr. Bullock.
VI. FINDINGS REGARDING THE FINAL ASSESSMENT COST AND
ADOPTION OF A RESOLUTION LEVYING SPECIAL BENEFITS FOR THE
NEVADA STREET LOCAL IMPROVEMENT DISTRICT NO. 85
The City Council finds and determines that it has received all information necessary to form the
Local Improvement District and allocate and impose the final assessment based on the entire
record of this proceeding, including but not limited to the Council Communications dated August
3,2004 and September 7,2004, March 20, 2007 and May 1,2007, as well as the public hearing
testimony and the exhibits received at the public hearings on September 7, 2004, and on May 15,
2007.
On March 20, 2007 Council heard a staff report and public comment on the final completed
project and the cost associated therewith and, based on the evidence presented adopted
Resolution 2007-07 setting the date of May 1, 2007 for a public hearing to levy special benefit
assessment costs. On May 1, 2007 Council opened the hearing and continued the matter to May
15,2007. On May 15,2007 the Council heard a staff report and public comment regarding the
final assessments to be levied against properties within the Nevada Street Local Improvement
District. Following the hearing Council adopted Resolution No. 2007- 17 Levying Special
Benefit Assessments for the construction ofthe Nevada Street Local Improvement District;
however, the effectiveness ofthe Resolution was delayed and continued to June 5, 2007 and
subsequently continued to June 19,2007 to facilitate revision to these Findings to address, inter
alia, challenges made at the hearing. On June 19,2007, the Council adopted the Findings of
Fact, Conclusions of Law and Order set forth herein and re-affirmed and readopted Resolution
2007- 17.
The Council finds and determines that the final assessment as set forth in the Resolution and
supporting documents is consistent with the requirements of AMC Chapter 13. Specifically, on
September 7, 2004 Council, in accordance with AMC Section 13.20.060 (B), passed Resolution
No. 2004-31 and determined the assessment rate to be $575.20 per equivalent dwelling unit. A
public bidding process for construction of the Nevada Street Local Improvement Project was
completed on December 14,2005 with a single bid received from LTM, Inc. On January 17,
2006, Council accepted the construction bid and entered into a contract with L TM, Inc. for
$249,050.50 to construct the Nevada Street LID improvement project. The improvements were
completed in September of2006 for a total cost of$295,837.63. Further, on January 17, 2006,
Page 13 of 15
Council modified the unit assessment cost by the maximum amount allowed (ten percent) under
AMC Section 13.20.060 (B).
The 1999-09 Resolution calculation of the assessment amount using construction costs would be
$1347.08. Since the Council elected not to discontinue the project but to proceed with "other
sources" of funds, as expressly permitted by AMC Section 13.20.060 (B), (i.e. funds other than
assessment funds), the actual LID assessment is limited to the 110% figure or $632.72. The
Council could have, but chose not to modify the assessment to $1347.08, re-advertise and rework
the assessment. The Council let the decision - to use other sources of funds, stand. Mr. Bullock
argues and speculates that the reduced assessment was not the Council's decision but Paula
Brown's early involvement in the project and coercion of her own staff to use incorrect
percentages to benefit a private developer - Billings Ranch Subdivision. (A percentage error is
identified in the Circuit Court proceeding as an error not injuring Petitioner Bullock for which he
was not entitled to a remedy.) The Council finds and determines that contrary to Mr. Bullock's
assertions the inclusion of Billings Ranch substantially reduced the LID assessment cost;
speculation about aiding a developer are rejected. (Similarly, Mr. Bullocks unsupported
allegations that the improvement costs for the Nevada LID were illegally inflated to absorb
other projects is false and inflammatory and based on his apparent misunderstanding of the
contract documents discussed in Council Communications). The City Council is expressly
authorized to use other sources of funds, not merely assessments, in making the final assessment
in the Nevada LID. (The Council could have abandoned the LID assessment and fully funded
this traffic and pedestrian safety project from other appropriate transportation funds.). The
Council could have but choose not to re-advertise and impose the full assessment of$1347.08 on
all property owners benefited by the LID project.
Based on the forgoing, the Council finds and determines that the final assessment, as reflected in
the whole record of this proceeding, including specifically the Resolution and supporting
documents and these findings, is consistent with Chapter 13 of the Ashland Municipal Code and
Oregon Law and meets or exceeds all applicable approval criteria.
v. ORDER AND DECISION
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the
evidence in the whole record, the City Council hereby APPROVES the Final LID Assessment as
set forth in Resolution 2007-17. Based on evidence contained within the whole record on this
matter, the City Council concludes that the establishment of the LID boundary is in the City's
best interest, is justified as presented by staff and is supported by evidence contained within the
record. Council further concludes that the conflict of interests as stated by Paula Brown have
been fully mitigated and had no impact upon the formation of the LID, and further the stated
conflicts do not have any impact on the allocation of the final assessment for the improvement.
Further the Bias and Prejudgment challenges fail to demonstrate the Council is incapable of
making this decision based on application of the facts in the record to the applicable law. The
Council finds and determines that based upon evidence in the whole record, the LID was bid and
constructed in accordance with City of Ashland standards and that the final construction costs
represent the actual costs. Therefore, the City Council finds and concludes that the assessment
rate is found to be fair and equitable and instruct $632.72 to be levied against each assessment
Page 14 of15
unit within the Nevada Street Local Improvement District. The City Recorder and staff is
directed to send Notice of Assessments pursuant to Ashland Municipal Code.
CITY OF ASHLAND, OREGON
B
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~
Date
Page 15 of 15
BEFORE mE ASHLAND CITY COUNCIL
JACKSON COUNTY, OREGON
June 5, 2006
IN THE MATIER OF RESOLUTION SETTING A PUBLIC
HEARING AND ORDERING THE FORMATION OF THE
WEST NEVADA STREET LOCAL IMPROVEMENT
DISTRICT FOR SIDEWALK AND TRAFFIC CALMING
IMPROVEMENTS ON WEST NEVADA STREET FROM
HELMAN STREET WEST TO THE BILLINGS RANCH
SUBDIVISION
APPLICANT: City of Ashland
RECITALS:
)
) FINDINGS.
) CONCLUSIONS
) ANDORDERS
)
)
)
)
)
)
1) On August 3,2004, Council approved Resolution No. 04-30 to set a public
hearing with intent to form a local improvement district for sidewalk and traffic
calming improvements to West Nevada Street.
2) The Nevada Street LID boundary was approved by Council as being all those lots
with frontage on Nevada Street from Helman Street west to the Billings Ranch
Subdivision (53 lots) and all of those lots within the Billings Ranch Subdivision
(72 lots).
3) The Council, following proper public notice held a public hearing on September
7,2004 at which time a staff presentation was made, citizen testimony received
and exhibits presented Council approved Resolution No. 04-31 authorizing and
ordering the improvements to Nevada Street consisting of sidewalks, curb
extensions, planter areas, pedestrian safety improvements and drainage and
associated improvements.
Now, therefore, the City Council of the City of Ashland finds, concludes and
recommends as follows:
SECTION 1. EXHIBITS
For the purposes of reference to these Findings, the following exhibits will be used:
Exhibit 1 - Council Communication dated August 3, 2004
Exhibit 2 - Minutes of the August 3,2004 Council meeting
Exhibit 3 - Resolution No. 04-30 setting a public hearing
Exhibit 4 - Council Communication dated September 7, 2004
Exhibit 5 - Minutes of the September 7, 2004 Council meeting
Exhibit 6 - Resolution No. 04-31 authorizing and ordering the improvement of
Nevada Street under the Nevada Street LID No. 85
SECfION 2. CONCLUSORY FINDINGS REGARDING BOUNDARY DETERMINATION
2.1 The City Council finds that it has received all infonnation necessary to make a
decision based on the Council Communication dated August 3, 2004 and
September 7, 2004, public hearing testimony and the exhibits received.
2.2 The proposed LID is in the best interest of 1I1e City. Evidence presented indicated
that average traffic speeds along Nevada were in excess of posted speed limits.
With the anticipated increases in traffic volume resulting from the construction of
the Billings Ranch Subdivision, there would be an increased chance for
pedestrian, vehicular conflict. Nevada Street does not have any sidewalks
between Helman Street and the Billings Ranch Subdivision. The proposed
pedestrian improvement project will be in the City's best interest as it will
provide for improved pedestrian safety by reducing overall vehicular traffic
speeds through traffic calming and providing sidewalks for pedestrian use in an
area along a pedestrian route used by school children. where none currently exist.
2.3 The proposed LID boundary included lots fronting on Nevada Street (53
properties) from Helman Street west to and including the new Billings Ranch
Subdivision as depicted on the map attached to Resolution No. 04-30. This
boundary was selected as these 53 properties would be directly benefited by the
improvements along Nevada Street. Helman Street marks the beginning of the
residential district and since sidewalks are already in place between Helman
Street and Oak Street, that block was not considered for inclusion The Billings
Ranch Subdivision (72 properties) was included as a condition of their planning
approval in accordance with the requirements of AMC 18.80.060 B.2. which
reads:
B. Improvements requirements.
Improvements to be installed at the expense of the land divider are as
follows: . . . 2. Exterior unimproved streets. When part of a proposed
subdivision or major land partition abuts an existing unimproved street,
the property owner, or a representative, shall satisfy the minor lands
partition improvements requirements and sign an agreement in favor of
improving said street in the future to full City standards as outlined in
this Section
The proposed boundary was consistent with other neighborhood sidewalk and
traffic calming LIDs (Helman, Penny/Palmer) as only those properties directly on
the affected streets or within subdivisions for which participation was required
pursuant to AMC 18.80.060 B.2. were included in the LID boundary area
There had been some discussion that all of the Quiet Village Neighborhood or at
least all of the homes north of Nevada Street should be included in the LID
boundary as all will be affected by the improvements as most all residents travel
some part of Nevada Street to access their homes. The only LID in recent years
that went beyond the immediate street improvement area was Tolman Creek
Road. Tolman Creek Road is considered a major collector I arterial street and the
improvements were full street improvements (street reconstruction and overlay,
new storm drain system, sidewalks on both sides, traffic calming planters, etc.). In
that case, the boundary was extended to include all homes that directly and
indirectly accessed Tolman Creek Road. This requirement was further reinforced
by the fact that nearly all subdivisions were required to participate in the LID as a
condition of the planning approval pursuant to the requirements of AMC
18.80.060 B.2.
2.4 It was necessary that the Nevada Street Sidewalk and Traffic Calming LID be
formed by Council initiative in accordance with AMC Section 13.20.020.
Although staffhas worked with the neighbors and has received general consensus
for the formation of the LID, actual signed petitions in favor of the LID had not
been collected by staff However, in August, 2004 Staff sent a letter to each of the
property owners within the LID boundary and requested they return a postcard
marking their choice regardIng formation of the LID. A clear majority of the
respondents were in favor of the LID. This information was presented at the
public hearing.
2.5 The proposed Nevada Street Local Improvement District is consistent with the
2002-2003 Capital Improvement Plan and identified in the 2002-2003 budget
adopted by Council in June, 2001.
2.6 The City Council did not receive a remonstrance sufficient to postpone the
construction of this project.
SECfION 3. CONCLUSORY FINDINGS REGARDING CONFLICf OF INTEREST
3.1 The City Council finds that it has received all information necessary to make.a
decision based on the Council Communications dated August 3, 2004 and September
7, 2004, public hearing testimony and the exhibits received.
3.2 At the September 7, 2004 Council meeting Public Works Director Paula Brown
verbally declared a conflict of interest as she and her husband owned property at the
comer of Nevada Street and Cambridge Street (800 Cambridge Street) which is
located within the assessment district boundary and property which is located at 810
Cambridge which is immediately outside the LID boundary proposed by staff and
adopted by the City Council. When Ms. Brown was initi~ly assigned the task of
putting together the LID, Ms. Brown notified City Administrator, Gino Grimaldi, of
her property ownership on Cambridge Street. Ms. Brown took efforts to mitigate any
conflict by relegating all decisions regarding the formation of the assessment
boWldary,.1he allocation of the assessment to each benefited property and other
similar issues to Project Manager James Olson.
3.3 COWlcil determine41hat Ms. Brown did not benefit financially from her ownership of
the property resulting from her position wi1hin 1he City and that she had taken the
steps to ensure that any conflict was mitigated. Any defect in not following state law
precisely was insignificant and had no bearing on the validity of the proposed
formation of the Local Improvement District. It was further determined that Ms.
Brown did not receive any benefits or considerations beyond that which would have
been available to any other citizen. COWlcil determined that the conflict should not
stop the proposed formation of the local improvement district as nothing relating to
the conflict would change the proposed boundary, the needed improvements, nor the
proposed assessments.
SECfION 4. DECISION
4.1 Based on evidence contained wi1hin 1he whole record on 1his matter, 1he City Council
concludes that the establishment of the LID boundary is in 1he City's best interest, is
justified as presented by staff and is supported by evidence contained within the
record.
4.2 Council further concludes that the conflict of interest as stated by Paula Brown has
been fully mitigated and has no impact upon the formation of the LID.
4.3 Therefore, based on our overall conclusions, the City Council authorizes formation of
the LID.
1
2
3
4
5
6 IN THE CIRCUIT COURT OF THE STATE OF OREGON
7 FOR THE COUNTY OF JACKSON
8 ART BULLOCK, Individually and )
as Trustee of791 Glendower Trust )
9 Dated December 25, 2003, ) Case No. 04-3971Z3(7)
)
10 Petitioner, Pro Se, ) OPINION AND ORDER
Ys. )
11 )
THE CITY OF ASHLAND, a )
12 Municipal Corporation of the State )
of Oregon, )
13 Respondent )
)
14
15 This matter came before the court upon the City of Ashland's submission of findings
16' pursuant to the court's May 18, 2006 Opinion; the Petitioner's Memorandum of Law for
17 Findings, Position Document, and 9 Motions; the City's Memorandum Responding to
18 Petitioner's Memorandum of Law for Findings; and Petitioner's Supplemental Memorandum of
19 Law. The court having considered these materials as well as the entire record in this matter, now
20 sets forth its..!l1.1~I, <>.pinion disposing of all remaining issues.
21 OPINION
22 In its May 18 order, the court ruled on all aspects of the Petition for Review with the
23 single exception of the matter of findings, and as to that issue, the court directed the City to enter
24 findings on the boundaries for the Nevada LID and Paula Brown's conflict of interest. The City
25 complied with the court's order and submitted its Findings, Conclusions and Orders on July 3,
26 2006. As the court stated in its May 18 order, there was sufficient evidence in the record to
27 support the City's ultimate decision to fonn the Nevada LID and conduct the traffic-quieting
28 street and sidewalk improvement project, but Oregon courts have made it clear that the City must
1 OPINION AND ORDER
..:..
, ! i'j'! L,~ (~.~' ." U ,
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1 also specify what it relied on to assure that the evidence actually relied on is sufficient for
2 purposes ofORS 34.040(c).
3 The City's findings are sufficient to support its decisions. Specifically, the findings are
4 sufficient to rebut Petitioner's allegation that the City acted "arbitrarily" when it chose the
5 properties to include in the Nevada LID. While Petitioner may disagree about where the
6 boundaries should have been, the City chose the boundaries purposefully and it articulated a
7 rational basis for its choices both in its findings and earlier in the staff memos on which the City
8 Council relied in making its decision. The City's rationale for not including certain properties in
9 the Nevada LID similarly disposes of Petitioner's argument that property owners not within the
10 Nevada LID should have received notice.
11 There also was evidence in the record to support the City's decision to proceed on
12 September 7,2004, notwithstanding the conflict of Paula Brown made known to the City Council
13 at or before that meeting, and the City's findings are sufficient on this point.
14 Most of Petitioner's disagreements with the City's findings fall into the category of
15 disputed evidence. The Court may not and will not weigh the evidence, nor will it choose
16 between the different conclusions drawn by the City and Petitioner on the same record. As
17 noted above, in entering its findings pursuant to the court's May 18 order, the Council was not
18 required to review the entire record; it was required to state its findings and it did so (Findings
19 2.1 and 3.1). Finding 2.3 11 sentence 4 is sufficient to indicate the City's reasons for including
20 the Billings property and in any case, the reasoning was laid out in the August 3, 2004 staff
21 memo previously before the court.
22 Many of Petitioner's other arguments also have been addressed previously, either by the
23 Council itself or by this court. For example, his complaint about Finding 2.3 12 being "new
24 evidence" is simply incorrect. The issue of the "Helman and Penny/Palmer" LIDs is specifically
25 discussed in the August 3, 2004 memorandum that is part of the record in this case, that
26 Petitioner has disputed in his filings, and that the Council relied on in making its decisions. His
27 overall arguments about why the side streets were not included duplicate his arguments against
28 the conclusions of the August 3, 2004, memo previously addressed by the court. His argument
2 OPINION AND ORDER
1 about the alleged requirement by the City to show how Billings was benefitted was not in fact in
2 his original petition, nor does he cite any provision in the Ashland Municipal Code to support his
3 argument. There also is evidence in the record, alluded to in the findings, of the benefits to
4 Billings: Nevada Street was the sole entrance to the development and the development could
5 only be built if Billings agreed to be in the Nevada LID.
6 Other arguments are based on Petitioner's picking and choosing among the findings. For
7 example, his argument that Finding 2.3 is illogical and irrational ignores the first sentence of the
8 second paragraph of Finding 2.3. His argument about "general consensus" fails because it is
9 premised on Billings not being included, but it was. His argument about Finding 2.5 erroneously
10 concludes that something "substantially different" cannot at the same time be "consistent."
11 With respect to Paula Brown's conflict of interest, the argument about whether she or
12 someone else initiated the statements on September 7 about her alleged conflict is not persuasive.
13 There is sufficient evidence ~at on September 7 the Council was aware of her conflict and
14 Petitioner has repeatedly acknowledged as much. I Although Finding 3.3 about how Paula
15 Brown benefitted from the project may be in artfully drawn, the Council found that she did not
16 benefit because of her position. To the extent Petitioner disagrees with the Council's conclusion
17 in this finding and in Finding 4.2, the court will not weigh the conflicting evidence that supports
18 each side's conclusion.
19 Buried within his Memorandum of Law, petitioner asserts nine "motions". While this
20 procedure is questionable and problematic, the court will respond to them anyway in order to
21 finalize the issues before it.
22 Motion 1. The court did have the authority to direct the City to make findings: "Upon
23 the review, the court shall have power to ... direct the [inferior court... or tribunal] to proceed in
24 the matter reviewed according to its decision." ORS 34.100. "... ORS 34.100 authorizes a
25 reviewing court to remand to an inferior court, officer, or tribunal and direct the inferior body toi
26
27
28
E.g., in his "Amended Petition" treated as a memorandum oflaw, page 29 lines 8-
9, page 37 lines 13-15, page 37 lines 24-27.
3 OPINION AND ORDER
1 proceed according to the reviewing court's decision." Home Builders Assn. v. City of West
2 Linn, 204 Or. App. 655, 662 (2006); review denied, 341 Or 80 (2006). See also, Miles v. Board
3 of Commissioners of Clackamas County. 48 Or. App. 951, 957 (1980) ("Here, the Board made
4 no finding [on a certain issue]. That defect alone would necessitate a remand to make a finding
5 on that issue"). Motion 1 is denied.
6 Motions 2 and 3. Petitioner argues that the court's order directing findings moved the
7 City's decision date from September 7,2004 to June 20, 2006, but Petitioner fails to cite any
8 authority for this position and the Court is aware afnone. The decision of September 7,2004
9 stands. The only "change" in the record is that the City has provided the findings that link its
10 decision to the evidence it relied on when it made its September 7,2004, decision. Petitioner
11 again requests that he be allowed to amend his petition, but his request is not warranted. He has
--fj 12 been allowed to present an unusually voluminous amount of argument, both written and oral, in
13 this matter, all complaining about the same core issues - boundaries, conflicts of interest, and
14 many positions about what the Nevada LID should include. He argues that the City "selected"
15 which parts of the record to put before the court. If this is a reference to his earlier attempts to
16 expand the record, it is a motion for reconsideration and is denied. If it is a reference to the
17 circumstance that the City did not submit the entire record again in support of its new findings,
18 there is nothing improper about what the City did and in fact the court directed the City to
19 identify what evidence it relied on and the City did so. This writ of review proceeding is not the
20 forum for Petitioner's continued efforts to override the City's decision to institute and proceed
21 with the Nevada LID. Motions 2 and 3 are denied.
22 Motions 4-7 seek to expand the record in various ways, none of which is either
23 appropriate or required for the court to decide the remaining issues connected with findings.
24 Motions 4-7 are denied.
25 Motions 8-9 seek to raise new allegations of ex parte contacts and bias. Petitioner
26 misconstrues the court's May 18 order, which clearly indicated that all matters concerning the
27 pending Writ of Review were disposed of other than findings indicating what the City found and
28 what they relied on in reaching their decisions. Motions 8 and 9 are denied.
4 OPINION AND ORDER
1 ORDER
2 For the reasons stated in its May 18, 2006 order and in this opinion, and the court having
3 disposed of the only remaining issue before it - findings - and having addressed all of
4 Petitioner's nine pending motions, this matter is concluded. With respect to the findings, the
5 Court finds them sufficient to rebut Petitioner's remaining allegations concerning the LID
6 boundary and Paula Brown's conflict of interest. The City's findings are supported by
7 substantial evidence in the record. With respect to the nine motions, each of them is denied for
8 the reasons stated in this opinion.
9
10
11 DATED this jt day of July, 2006.
12
13
14
15
16
17
18
19
20
21
22
23
~#'
MARK SCHIVh'E VI
Circuit Court Judge
cc:
Mr. Art Bullock
Mr. Michael Franell
24
25
26
27
28
5 OPINION AND ORDER
1
2
3
4
5
6
IN THE CIRCUIT COURT OF THE STATE OF OREGON
7 FOR THE COUNTY OF JACKSON
8 ART BULLOCK, Individually and )
as Trustee of791 Glendower Trust )
9 Dated December 25, 2003, ) Case No. 04-3971Z3(7)
)
10 Petitioner, Pro Se, ) OPINION
vs. )
11 )
THE CITY OF ASHLAND, a )
12 Municipal Corporation of the State )
of Oregon, )
13 Respondent. )
)
14
15 This matter came before the court upon the Petition for Writ of Review filed on
16 November 4,2004, and the court having reviewed the Writ, the return of Writ and supplementary
17 returns filed by the respondent City of Ashland, and the parties' memoranda, and having
18 reviewed the oral and video record of the Ashland City Council meetings of August 3, 2004,
19 August 17,2004, September 7,2004, September 21,2004, and October 5, 2004, and further
20 having conducted an oral hearing on said Writ on April 6, 2006, and having considered the
21 argument of counsel Michael Franell on behalf of the City of Ashland and petitioner, acting pro
22 se, and being otherwise fully advised in the premises, the court now sets forth its Opinion.
23 OPINION
24 Jurisdiction and Standing
25 The Court previously found that this matter is properly brought as a writ of review
26 pursuant to ORS 34.020 ff. Petitioner Bullock alleges that he is the "trustee of real property...
27 inside the Nevada Street Local Improvement District No. 85 ('Nevada LID')" that is the subject
28 of the Writ. Pet. ~ 2. In that capacity, Bullock's property is among the properties to be. "
1 OPINION
I r~: -"
,~ .' i _' ~~_~~ ~',~I ~
MAY 2 2 2006
; U "" L_____ ,__.~____
i
r.
~i
1 "benefitted" by the LID and will be assessed for a portion of the costs of the improvements.
2 Accordingly, he has standing to bring his petition.
3 The Standard and Scope of Review
4 The standards to be applied in a writ of review proceeding are set out in ORS 34.040.
5 Accordingly, the Court reviews the record before the agency making the decisions at issue, in this
6 case the Ashland City Council acting on August 3,2004, and September 7,2004, for one or more
7 of five statutory errors. It is well established law in Oregon that the scope of review under ORS
8 34.020 ff is limited. The court generally examines only the record established at the proceedings
9 in question and, with respect to the evidence before the agency, reviews only whether there was
10 substantial evidence in the whole record to support the agency's decision. The court is
11 specifically prohibited from weighing the evidence.
12 The Absence of Findin2s
13 The record before the court is devoid of findings on the part of the Ashland City Council
14 indicating what evidence they relied upon in reaching their decisions on August 3, 2004, to set
15 the public hearing that is required before the Council may form an LID, and on September 7,
16 2004 to form the LID and to direct the Ashland city staff to complete the design and move
17 forward. Petitioner correctly points to the lack of findings (and related reasoning) as an error
18 warranting relief. "An agency must issue findings which explain the basis of its decision." "If
19 there is to be any meaningful judicial review, an agency must demonstrate that it has considered
20 the factors prescribed by statute and its own regulations and has not acted in an arbitrary manner
21 or on an ad hoc basis." Feite1son v. City of Salem 46 Or. App. 815, 820, 822 (1980). There are
22 two specific respects in which the record must be supplemented to include the findings that will
23 enable the court to determine whether any of the errors set out in ORS 34.040 are present in this
24 case:
25 (A). Although there is sufficient evidence in the record to support the CounciPs overall
26 decision to institute a Local Improvement District in the area of Nevada Street, there are no
27
28
2 OPINION
1 findings or reasoning about the Council's choice of boundaries for the Nevada LID, 1 specifically,
2 the inclusion of the Billings Ranch properties but not some other single-lot properties near
3 Nevada Street, the specific basis for Petitioner's objection. "Even though [the court] can trace
4 through the record a legitimate path by which the [City Council] could have reached [its]
5 conclusion[s] our task on judicial review is not to serve as a pathfinder." Salosha. Inc. V. Lane
6 County. 201 Or. App. 138, 145 (2005), quoting Green v. Hayward, 275 Or. 693, 706 (1976)
7 ("The chances of misunderstanding and of inconsistent * * * decisions are greatly enhanced
8 when the courts are forced, because of inadequacies in the record, to undertake a search for
9 evidence to support findings ~hich were not made and reasons which were not given."). The
10 City Council is directed to enter findings on why the boundaries of the Nevada LID are where
11 they are.
12 (B). Similarly, although there is evidence in the record to support the Council's choice to
13 proceed with the formation of the Nevada LID on September 7,2004, notwithstanding the orally
14 disclosed conflicts of interest of Paula Brown and the memorandum provided to the Council at or
15 before the September 7, 2004 meeting, there are no findings to indicate why the Council decided
16 to proceed, despite the identified conflicts. The City Council is directed to enter such findings.
17 The City Council is directed to enter the findings called for by this Order within 45 days
18 of the entry of this Order and to provide such findings to the Court within 10 days thereafter.
19 Once the Court has received the City's findings, the Court will enter its further Order regarding
20 Petitioner's allegations of error concerning the Nevada LID boundary and Ms. Brown's conflicts
of interest.
21
22
23
24
Petitioner's Allegation of Error # 1 asserts that the City acted "arbitrarily" when it
25 chose the properties to include in the Nevada LID in violation of AMC 13.20.040(C)(1)(c) and
Ashland Municipal Resolution 1999-09(2) concerning "benefitted" properties. Petitioner further
26 alleges (#2) that nearby property owners should have received individual notice of the September
27 7,2004, hearing. These allegations will be addressed after the Court receives the findings called
for in this order.
28
3 OPINION
1 The Remainin~ Alle~ations of Error
2 Alleged Error #3 concerning 30-day review is without merit. Ashland Municipal Code
3 ("AMC") 13.20.040(A) does not require providing copies of the design along with the notice of
4 hearing. It only requires giving 30 days' notice of the hearing.
5 Alleged Error #4 concerning the adequacy of the improvement description is without
6 merit. AMC 13.020.040(C)(1)(a) requires only that the notice of hearing contain a "general
7 description" of the improvement, not a detailed design. The City's notice made interested
8 citizens aware of a project involving sidewalk and traffic calming improvements, which is
9 adequate to inform the public of the nature of the project, and to invite further inquiry.
10 Error #5 concerning the adequacy of the cost estimate is without merit. The cited
11 ordinance, AMC 13.20.030(A)(6) requires the cost estimate to be included in the improvement
12 resolution. In this case, section 2 of the resolution forming the Council's decision on September
13 7,2004, (Exhibit 1, page 15-16 of the return of the writ) states the cost estimate, the total amount
14 to be paid by special assessment, and the total assessment for each tax lot in the LID.
15 Alleged Error #6 asserts the City violated Resolution 1999-09 (1 )(A) by not paying "the
16 required 75% City share" on storm drainage improvements. Petitioner is correct that the City did
. 17 not follow the formula set out in the Resolution and the Court notes the language of the
18 Resolution is mandatory. The City was not at liberty to stray from the formula. However,
19 Petitioner's assessment was reduced by the City's decision, and thus he has not been financially
20 harmed. Petitioner raises non-financial damages he has allegedly suffered as a result of the
21 decisions but even if the court were able to find a direct link between the City's decision to
22 reduce the assessment per lot with Petitioner's concerns with "public safety tradeoffs", the
23 possibility of a future exchange of water rights, open and transparent government and alleged
24 design flaws, these would not give rise to a determination that the Council's decision to form the
25 LID in the first instance was flawed and must be voided, as Petitioner requests. Accordingly,
26 Petitioner is not entitled to a remedy for the City's error.
27 Alleged Error #7, alleging the Council violated AMC 13.20.020(B) when it "ignored"
28 petitions from certain Ashland residents, is without merit. Under the ordinance, the LID could
4 OPINION
1 be, and was, initiated by City Council action pursuant to AMC 13.20.020(A), as Petitioner
2 conceded in his Memorandum in Support of Motion to Expand the Record, filed October 26,
3 2005: "Council began Nevada LID." This was a proper alternative for the Council to follow.
4 Had the council failed to act, AMC13.020.020(B) provided an alternative method whereby the
5 benefitted parties could have initiated the LID process. Because the City did act, that alternative
6 method was unnecessary.
7 Alleged Error #8 concerning charges to the Billings Ranch developer, is without merit.
8 There is nothing in the record to indicate that the City Council took any action on August 3,
9 2004, or September 7, 2004, regarding charges to the developer and accordingly there is no
10 decision for the Court to review pursuant to this Writ.
11 Alleged Errors #9-18, 36, 37, 47-48, although asserted under a variety of labels
12 ("conflict," "financial benefit," "abuse of power"), all concern the alleged conflicts of interest of
13 city employee Paula Brown. The Court notes at the outset that Petitioner makes no allegation
14 that any member of the City Council had a conflict of interest. Accordingly, the only issue
15 before the Court on writ of review is whether the employee's conflicts were disclosed to the City
16 Council at or before it made its decisions on September 7, 2004, and the reasoning behind the
17 Council's decision to proceed in the face of the disclosed conflict. To the extent the errors allege
18 a failure of findings on the part of the City Council, they will be addressed when the findings are
19 provided to the Court. To the extent the errors allege a failure to disclose, the record reflects that
20 Brown's conflicts were disclosed orally at the September 7,2004, meeting and that they were
21 disclosed in further detail to the Council in the form of a memorandum from city attorney
22 FranelP
23
24 other than the fact ( or absence) of disclosure, Petitioner has failed to exhaust his administrative
To the extent the errors about conflicts of interest concern Brown's actions and status
25
26 2 Even if the Court determines that there was inadequate disclosure of Paula
27 Brown's conflicts at or before the September 7,2004, meeting, the Court cannot void the City's
actions solely because of that inadequacy. ORS 244.130(2).
28
5 OPINION
1 remedies and his recourse is to the appropriate enforcement agency pursuant to ORS 244.260.
2 Alleged Error #19, which alleges an improper delegation oflegislative authority, is
3 without merit. Petitioner fails to specify any respect in which the requirements of the statutes
4 and resolutions on which he relies were violated by the City Council's actions. AMC 13.20.030
5 specifically contemplates that the initial resolution creating the LID will be based upon
6 "estimated" costs. To the extent Petitioner intended to allege that the impropriety was in
7 allowing Brown, rather than someone else from the department, to make these determinations,
8 Petitioner failed to exhaust his administrative remedies. To the extent Petitioner intended to
9 allege that the impropriety was in allowing Brown to make further determinations after
10 disclosure of any conflicts of interest, that will be addressed when the findings are provided to
the court.
11
12
13 failures have been addressed either by the order requiring findings, or by the document
14 submissions and prior court orders in this writ of review proceeding.
15 Alleged Errors 24-27 concerning employee Mark Knox are without merit. There is no
16 evidence in the record that Mr. Knox played any role that improperly influenced the City Council
17 in its September 7,2004, deliberations. To the extent the allegations concern Mr. Knox's actions
18 related to the Nevada LID apart from the City Council's deliberations, they must be addressed, if
19 at all, pursuant to ORS 244.260.
20 Alleged Errors 28-30 concerning city employee Barbara Christensen are without merit.
21 Allegations #28 and 29 concern actions taken after the September 7, 2004 meeting at which the
22 City Council decision at issue in this proceeding was taken. The issue of the accuracy of the
23 City Council minutes (#30) was resolved by prior orders ofthis court.
24 Alleged Errors 31-35, 45-46, all concern design issues and each is without merit. First,
25 there is no evidence that the City Council acted on any of these design issues at the September 7,
26 2004 meeting. As far as the record appears, the decisions about these design aspects were
27 finalized after the September 7,2004 meeting and never were the subject of a quasi-judicial
28 decision by the City Council. Moreover, certain of the design issues, including delayed
Alleged Errors #20-23 concerning documentation are without merit. These alleged
6 OPINION
1 emergency response time and the pros and cons of textured crosswalks, were specifically
2 addressed and discussed at the public hearing on September 7,2004, and to the extent Petitioner
3 reaches different conclusions about the import of that evidence than the City does, the Court is
4 not allowed to weigh and "vote" on this evidence. To the extent there are aspects of the sidewalk
5 improvement design that may violate federal or state laws, that is not a matter properly before the
6 Court on writ of review. To the extent the references to Brown in allegations in #45 and 46 are
7 intended to suggest conflicts of interest, they have been addressed elsewhere in this opinion.
8 Alleged Errors #38-41, each of which alleges a failure on the part of the City to
9 adequately take into account the "majority" viewpoint at various meetings, is without merit.
10 Neither AMC 13.20.020(B) nor Resolution 1999-09 (4) requires the City to take the actions
11 urged by Petitioner. Moreover, the record is replete with evidence of community involvement in
12 meetings, presentations, and other activities related to the formulation of the ideas and plans that
13 preceded the resolution forming the Nevada LID. To the extent the focus on Paula Brown's
14 actions in these alleged errors is another way of alleging conflict of interest, it is without merit
15 for the reasons previously stated.
16 Alleged Error #42 alleges a violation of AMC 13.20.02O(B) for Brown's use of a post
17 card survey. This allegation is without merit. Irrespective of how the City has surveyed its
18 residents in the past, there is nothing in 13.20.020(B) which requires the use of formal petitions
19 to determine residents' views for a project which the City itself initiated pursuant to AMC
20 13.20.020(A).
21 Alleged Error #43 asserts that the "City's last-minute change gave Developer 69 of 125
22 votes" and thus deprived Petitioner and others of a majority vote, is without merit. The only
23 effect of a majority vote against the project (called "remonstrance" in the ordinances) would have
24 been to effect a six-month delay in action on the improvement. AMC 13.02.050(C). The flaw in
25 Petitioner's argument is that even if the developer had not been given a vote, Petitioner and his
26 colleagues would not have been able to produce votes against the project by "two-thirds of the
27 property to be specially assessed." Whether or not the developer voted, the most votes Petitioner
28 could muster against the improvement would be 53 out of the 125 lots to be assessed. The
7 OPINION
I I
1 ordinance says nothing about two-thirds of the properties actually voting on the improvement.
2 Additionally, assuming arguendo that the 30 petitions Petitioner presented to the City Council at
3 the September 7th public hearing were in fact proper remonstrances3 and assuming, further, that
4 the Developer was given only one remonstrance vote, instead of 69, petitioners 30 remonstrances
5 still did not constitute 2/3 of the eligible "votes". By any definition, those affected by the LID
6 were given their opportunity for remonstrance, as set out in the ordinances, but failed to muster
7 the required number of remonstrances to suspend the project, regardless of the Developer's
8 involvement in the process.
9 Alleged Errors #44, 49 concern allegations of "intimidation" and "penalizing" by city
1 0 employees, and are without merit. These allegations are not properly the subject of this writ of
11 review proceeding. To the extent they are another way of alleging Paula Brown's conflict of
12 interest, they have been dealt with elsewhere in this opinion. Petitioner's remedy, if at all, is
13 through the disciplinary ann of the human resources department of the City of Ashland.
14 Petitioner's Requests for Relief
15 The relief available to a petitioner upon writ of review is set out in the governing statute,
16 ORS 34.100. As set forth elsewhere in this order, the court has ordered one such form of relief,
17 direction to the agency to enter findings on certain issues in the case. Petitioner's remaining
18 requests for relief are disposed of as follows:
19
20
21
22
23
1.
Petitioner asks that the City provide him with certain transcripts and other
documents. As to these requests, the documents have been made part of the
record and/or the Court has disposed of them by prior orders in the case.
III
24 III
25
26
3 At the September hearing, City Attorney Franell stated that the petitions constituted
remonstrances. The Mayor questioned that determination, at that same hearing. The court's
27 review of the petitions raises serious doubts as to their validity as "remonstrances", but the court
will accept the City Attorney's public statement that they were, for purposes of the practical point
being made here.
28
8 OPINION
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10
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cc:
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2. Petitioner asks that the Court declare "that City improperly created the Nevada
LID and to declare it void" and to "order Respondent to make no assessment" on
the LID or to ''void any assessment heretofore made." Although the Court cannot
finally determine these requests until it receives the City Council's findings, to the
extent the remaining errors have been dealt with in this order, petitioner's requests
are denied.
3. Petitioner previously asked the Court to enjoin further work on the project and his
request was denied by prior order of the Court.
DATED this n day of May, 2006
Pc~d-.A.~
MARK SCHIVEL Y
Circuit Court Judge
Mr. Art Bullock
Mr. Michael Franell
9 OPINION