Salem City Council reverses itself and approves Meyer Farm subdivision

Some Salem progressives are deeply irritated at fellow progressives on the City Council after Monday night's 4-3 approval of a revised Meyer Farm subdivision application , which followed a 5-2 denial of the application on February 28.

The Friends of The Meyer Farm Facebook page has an image that sums up how opponents of the subdivision are feeling today.

They're justified in feeling this way. 

One reason is how City of Salem staff turned a subdivision denial into an approval by working with the applicant on a revised application, even though opponents figured that what staff should have been doing is preparing a Final Order of the denial.

This gave the developer, Portland based Kehoe Northwest Properties, time to turn a loss into a win. Opponents of the subdivision likely are wondering what occurred outside of public view to result in a City Council vote against the development becoming a vote for the development.

However, when we look at how the votes changed between February 28 and March 28, there's less room for anger at city councilors altering their position on the subdivision -- while still providing considerable justification for outrage.

Particularly at several progressive members of the City Council.

On February 28 there were eight members of the council, conservative Jim Lewis having resigned his seat. Those voting to approve the subdivision were Chuck Bennett and Jose Gonzalez. Those voting to deny the subdivision were Tom Andersen, Trevor Phillips, Jackie Leung, Chris Hoy, and Vanessa Nordyke. Virginia Stapleton was absent.

But prior to the denial, at the February 28 meeting there was a motion to approve the subdivision with some conditions. Hoy, Bennett, and Nordyke were in favor of the motion. Andersen, Leung, Phillips, and Gonzalez opposed the motion.

Yesterday, March 28, all nine City Council positions were filled, since Micki Varney, a progressive, had been selected to fill Jim Lewis' seat. This time Jackie Leung was absent, a crucial absence, because there were only four votes to approve the subdivision application: Bennett, Gonzalez, Stapleton, Hoy. Three councilors voted to deny the application: Nordyke, Andersen, Phillips. 

Varney abstained. A Salem Reporter story says:

Councilor Micki Varney, who was appointed to the council last week to serve the remainder of Jim Lewis’ term, abstained because she hadn’t had a chance to review testimony, City Attorney Dan Atchison said at the meeting. Councilor Jackie Leung was not in attendance.

Wow. Micki Varney didn't start off her council appointment at all positively.

It's mind-boggling that Varney didn't take the time to review testimony on probably the most important land use decision that will come before the City Council this year. It also doesn't look good that the City Attorney apparently was the one to explain why Varney abstained, not Varney herself. 

So if opponents of the Meyer Farm subdivision are looking for someone to blame for the subdivision's approval, Micki Varney would be Culprit #1. If she had voted against the revised application, the motion to approve it would have failed on a 4-4 tie. 

Culprit #2 has to be Jackie Leung, another progressive, who voted against the subdivision on February 28. Unless Leung has a really good explanation for why she missed Monday's meeting, the ire of subdivision opponents should be focused on Leung, along with Varney. 

(I like both Leung and Varney. I've supported their City Council campaigns. But I've got to call them out on this issue, because to me failing to vote on an important issue is worse than voting in a way I disagree with. Democracy belongs only to those who show up.)

NOTE: Initially I had it as Leung and Nordyke rather than Leung and Varney. I wrote this post late at night and my proof-reading obviously was lacking, being excessively focused on turning on our TV and starting to watch the 4th season of "Yellowstone." Great series by the way.

Virginia Stapleton was absent on February 28, so her position on the Meyer Farm subdivision wasn't known, making it not much of a surprise when she voted to approve it yesterday. Chris Hoy was in favor of a modified subdivision plan on February 28, so it wasn't a huge shock when he voted in favor of a modified plan on March 28. The Salem Reporter story says:

Hoy previously made a motion during a March 1 meeting [actually, it was February 28] to modify the planning administrator’s decision, telling the applicant to preserve significant trees on 10 lots by dedicating them as open space or incorporating them into the homestead lot. He also called for relocating a pedestrian path on Hilfiker Lane to ensure it didn’t impact trees. That motion failed.

At Monday’s meeting, he said he believed the new application got “very close” to his previous motion.

“I think it's the best outcome we can hope for given the difficult situation,” Hoy said.

Likely this isn't the final word on the Meyer Farm subdivision. Members of the Meyer family who don't want to see the farm turned into a housing development are engaged in a legal challenge regarding ownership with the family members who do favor development. 

That's one way the subdivision could be stopped. An appeal to LUBA, Land Use Board of Appeals, is another way. There appears to be some valid grounds for appeal.

Comments

[E.M.]

Nicely explained, Blogger Brian. Yes, it is clear, part of the community wants to preserve the land as public open space in south Salem, but that wish does not provide a legal basis for not approving a proposed subdivision.

The missing ingredients are the legal issues upon which a decision was or was not made. Your posts have yet to identify which legal elements were missed by Council and could be challenged by the Friends of Myer's Farm. The Salem tree ordinance is the only legal theme you cite.

Just what are the valid grounds for a LUBA appeal that you suggest at the end of the blog?

[Brian Hines]

E.M., as I noted in this post, one seemingly valid basis for appeal is the contested ownership of the Meyer Farm property. This is being argued in court between two factions of the Meyer family, to my understanding. I recall that an attorney appointed as a temporary trustee is the person who agreed to develop the land. It seems wrong that a subdivision can be built on the authority of a temporary trustee when the ownership of the property the subdivision is to be built on hasn't been legally decided yet.

Here's how an opponent of the subdivision responded to Whitney Woodworth of the Statesman Journal, which was shared in a Facebook post today. Note the final paragraph..
----------------------------
“Hi Whitney,

I recognize and appreciate that the City Councilors are volunteers who have a tremendous amount on their plates. There have also been some incredibly tragic events that have happened over the past weekend, and I refuse to pretend that land use issues are at all more significant than true life-or-death situations. I was moved to tears by some of the statements made by Councilors which honored and recognized the preventable and tragic loss of human lives downtown this past weekend. What is obvious to me is that we have a Council full of people who genuinely care about the citizens of Salem. That is a comforting thought when considering who we want to have making decisions that affect us all.

It was also apparent to me that while this application to develop the Meyer Farm may not impact everyone in this city, the majority of the Councilors were not happy about this vote. What concerned me most about what I saw last night was whether or not the correct facts were considered. There was a lot of discussion over how this application related to the past Costco debate, what a "reasonable design alternative" means, and whether Councilors felt they even had any other option than to approve this application. It appears they feel that they did not.

But the fact is, they did have the option to legally deny it, and the method to do so was clearly outlined for them in public testimony. I’m not sure everyone reviewed that fact though, because it was not mentioned last night at all.

This is a complicated situation for many reasons, but what it boiled down to last night was whether or not this application met all of the required approval criteria.

It did not.

(If you want to, you can review exactly how and why this is true in the last round of submitted public testimony. It’s too long to insert here.)

I also found it incredibly contradictory that this whole thing appears to hinge on the protection of trees when Mayor Bennett proclaimed next month to be Arbor Month, celebrating Salem’s 46th consecutive year as an Arbor Day Foundation Nationally-Recognized Tree City. Especially biting was hearing how the City Arborist’s personal motto is “Saving the city, one tree at a time.”

I know that many people reading the articles written about this farm believe all of this fuss is “just a NIMBY issue”. I get it--saving trees is not everyone's priority. And while the trees are genuine concern of mine, they are honestly not the biggest problem with this situation; They are just the means to make the situation right, which the Friends of the Meyer Farm group still intends to see happen. We are not done with this fight.

The fact is, this land does not belong to this applicant, and possibly never will. Until the legal dispute over the trust case involving this land has been resolved, there should not be any action taken that would essentially destroy it. The fact that our city’s code is so flawed that someone who does not have a vested legal right to a piece of property can be allowed to submit an application to develop that property, is something that every citizen should be concerned about.

It could be your property next.”