CLAIMED AGAINST PROPOSED DEVELOPMENT OF THE PROPERTY

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1 Roger F. Dierking Attorney at Law NE Beech Street Portland, OR March 10, 2012 Sean M. Williams City of Portland Bureau of Development Services 1900 SW Fourth Ave, Site 5000 Portland, OR Case File Number: LU LDS PUBLIC RIGHTS AND INTERESTS CLAIMED AGAINST PROPOSED DEVELOPMENT OF THE PROPERTY Dear Mr. Williams: The Argay Neighborhood Association has employed me, a resident of Argay Terrace for over 40 years, as their attorney to represent the Association, adjoining property owners, and members of the public who claimed public or adjoining property owners rights against the proposed development and are listed in an Association s attachment to its March 10, 2012 letter. The Property Is Unsuited for Development The following statements are based on my personal knowledge or information and belief and are supplemented by the Association s letter to you. The proposed development involves property often referred to as open land. The property abuts the east side of 141 st Avenue. Argay Park is owned by the City of Portland and the west side of the Park abuts 141 st Avenue parallel to the property proposed to be developed. The property has been continuously open and used by the public for over 40 years. Scenic values have become a significant public use and right in the property proposed to be developed. During that time, the subdivision s open property park landscaping concept has neutralized and harmonized Argay Park uses with the homes constructed under the subdivision plan. Other public rights have attached to the property. One or more persons have used the 1

2 property for sports activities, relaxation, and many other purposes. Persons have even used the property to obtain signatures on petitions concerning public matters. An extended street parking space on both sides of 141 st Avenue is a significant public right affecting the public and neighborhood. The subdivision plan eliminated risks presented to vehicle drivers resulting from residents backing out of driveways into traffic along 141 st Avenue as contemplated by the proposed development. Occasionally, park users have exceeded parking capacity and must park in front of residents properties some distance from the park. At these times, the proposed development of the property would obstruct traffic, park users and the residents of the property proposed to be developed. Despite the value of the property for these public and neighborhood uses, the applicant requests that Oregon s land use and subdivision laws be stretched for an infill development. The infill development would end the public uses that were planned to eliminate problems resulting from developing the property. You may readily agree with the Association and deny the application for this reason. The Property is Appropriated and Dedicated to Public Park Purposes If you find the property is suited for development, the Association would contest your decision based on Oregon s land use and subdivision laws and claim there is need to first determine the applicant s and the public s rights in the property.. Under ORS , there are several methods by which certain land may be provided for public purposes. (1) Land for property dedicated for public purposes may be provided to the city or county having jurisdiction over the land by any of the following methods: (a) By dedication on the land subdivision plat; (b) By dedication on the partition plat, provided that the city or county indicates acceptance of the dedication on the face of the plat; or (c) By a separate dedication or donation document on the form provided by the city or county having jurisdiction over the area of land to be dedicated. (2) Notwithstanding subsection (1) of this section, utility easements in partition and condominium plats may be granted for public, private and other regulated utility purposes without an acceptance from the governing body having jurisdiction. [1989 c.772 3; 1997 c.489 7; 2007 c.652 4] 2

The subdivision plan eliminated risks presented to vehicle drivers resulting from residents backing out of driveways into traffic along 141 st Avenue as contemplated by the proposed development.

3 While the public s use of the property for park purposes for 40 years would seem to be undisputed, the ownership of the property and dedication of the property for park purposes is clouded. These clouds create uncertainty with ownership and dedication of the property that require determination in appropriate hearing proceedings. On May 1,1969 Commonwealth Properties deeded the Argay Park property (Lot 15, Block 23, Strathmore) to Multnomah County. The property to be developed was not included in the conveyance. Apparently, no notation was made on the plat that the property proposed to be developed was dedicated to public purposes as provided in ORS (1)(a). Based on information and belief Multnomah County maintained the property for two years and then in 1973, the Parks and Memorials Division, Multnomah County gave notice to at least one of the owners of adjoining properties that the property had been donated by the developer for park purposes. Exhibit No. 1. The Association asserts that the Multnomah County notice combined with continuous use of the land for park purposes constitutes dedication of the land for park purposes. On March 1, 1984 Multnomah County transferred Argay Park to the City of Portland by Bargain Sale Deed recorded at Book 1730 Page 1495, Multnomah County Records. Based on information and belief, the property was foreclosed in Multnomah County property tax foreclosure proceedings and thereafter sold to a purchaser. Based on information and belief, the property was sold in 1992 and a deed conveyed the property to the purchasers in Further investigation is necessary to determine the reason that Multnomah County foreclosed and sold property that was openly used and dedicated to subdivision and public park purposes. In these circumstances, due to the public rights attached the property, there are serious questions concerning the sale and of conveyances of the property. No notice was posted and maintained on the property to inform the public of a change of ownership and to discontinue use of the property. No notice was posted or given by Multnomah County or the City of Portland that the land was no longer dedicated to park uses. At a minimum, the actions of Multnomah County and the land owner and their inaction provide basis for the Association, members of the public and parties having an interest to invoke equitable estoppel in appropriate hearing proceedings for establishing public 3

On May 1,1969 Commonwealth Properties deeded the Argay Park property (Lot 15, Block 23, Strathmore) to Multnomah County. The property to be developed was not included in the conveyance.

4 rights in the property. The Association asserts the above information as reasons for denial of the application with opportunity for the applicant to initiate appropriate proceedings to determine title and rights in the property. The approval of the application without proceedings to determine the public rights in the property would deny interested parties of their rights to due process notice and a hearing under Oregon laws in violation of the 5 th Amendment as incorporated into the 14 th Amendment of the Constitution of the United States. The Public s Ownership or Interests by Adverse Possession Adverse possession is another way that lands or interests can be acquired in properties for public purposes. Under ORS a person may acquire fee simple title to real property by adverse possession only if: (1)(a) The person and the predecessors in interest of the person have maintained actual, open, notorious, exclusive, hostile and continuous possession of the property for a period of 10 years; (b) At the time the person claiming by adverse possession or the person s predecessors in interest, first entered into possession of the property, the person entering into possession had the honest belief that the person was the actual owner of the property and that belief: (A) By the person and the person s predecessor in interest, continued throughout the vesting period; (B) Had an objective basis; and (C) Was reasonable under the particular circumstances; and (c) The person proves each of the elements set out in this section by clear and convincing evidence. (2)(a) A person maintains hostile possession of property if the possession is under claim of right or with color of title. Color of title means the adverse possessor claims under a written conveyance of the property or by operation of law from one claiming under a written conveyance. (b) Absent additional supporting facts, the grazing of livestock is insufficient to satisfy the requirements of subsection (1)(a) of this section. (3) As used in this section and ORS and , person includes, but is not limited to, the state and its political subdivisions as created by statute. [1989 c ; 1991 c.109 2; 1999 c.950 1] The public s use and possession of the property for 40 years is likely undisputable. However, there are questions as to whether the public could acquire fee title where they 4

the application without proceedings to determine the public rights in the property would deny interested parties of their rights to due process notice and a hearing under Oregon laws in violation of

5 lacked knowledge that the applicant was the owner of the property as required under ORS (1)(b). A further question is whether a dedication of the property as claimed in this case constituted color of title as required to meet the hostile possession requirements of ORS (2)(a). In any event, the public and Association is entitled to a determination in appropriate hearing proceedings as to the applicant s title and rights and the public s title and rights to the property or whether the public has established lesser title and interests to use the property for public purposes. The application should be denied with opportunity for the applicant to initiate proceedings to establish the applicant s and the public s rights in the property. Other Rights of the Public and Adjoining Property Owners Are Reserved The public and adjoining property owners reserve all other rights under the laws for assertion in appropriate hearing proceedings. For these reasons you are respectfully requested to deny the application with opportunity for the applicant to establish title and rights to develop the property. Enclosure: Exhibit 1 Sincerely, s/ Roger F. Dierking 5

In any event, the public and Association is entitled to a determination in appropriate hearing proceedings as to the applicant s title and rights and the public s title and rights to the property or

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