In an unusual turn of events, a longstanding, complex legal battle over a boundary line in Murdock was tentatively settled just before dual appeals were to be heard by the Gorge Commission.
Several Gorge commissioners took the unusual step at their Jan. 14 meeting in The Dalles of bluntly warning the row of attorneys ready to begin the first appeal hearing that they wouldn’t like the outcome and a settlement was the better option.
“You’re about to go through a door you don’t really want to go through,” warned Rodger Nichols, the Gorge Commissioner representing Wasco County.
He warned there was no way to predict how the commission would rule and it would lead to a “freefall” with another seven to eight years of litigation ahead in a case that already has a 1,600-page court record. “If you go through this process, you’ll lose,” he told all parties.
In the case, Murdock property owner Keith Arndt has sought, since 2008, to divide his five-acre parcel into three, then later two, smaller lots. The parcel is bisected by the boundary line between the Dallesport Urban Area, which would allow the creation of smaller lots, and the more restrictive general management area of the Columbia River Gorge National Scenic Area, which would not allow the smaller lots.
The precise location of that boundary line is the central issue of the case, which highlights the poorly defined boundaries of the scenic area’s 13 urban areas. The commission is working now to get them more closely defined.
Multnomah County’s Gorge Commissioner, Jim Middaugh, in his first meeting as commission chair, opened the hearing by saying “all sides are going to walk away unhappy. We’ll see you again and we’ll see you again and we’ll see you again,” he said, referring to repeated appeals to the commission.
Middaugh called for a 15-minute recess to allow the parties to talk. The break stretched to an hour, and the parties returned to the table to announce a tentative settlement.
John M. Groen, attorney for Arndt, told the commission, “I’m very pleased we reached an agreement. Thank you for your encouragement. Sometimes that’s what’s needed.”
The settlement details couldn’t be disclosed, said Gary Kahn, attorney for the Friends of the Columbia Gorge, the conservation group which filed the appeals, since they still had to be approved by the Friends board and another party to the appeal, Columbia Gorge Estates.
Kahn said later it was the first time a Friends appeal to the commission had been settled on the day of the hearing.
The commission loudly and unanimously granted the parties’ request for a 60-day stay of the appeals, and was rewarded with a round of applause from the sizeable audience, a novelty at commission meetings.
Before the settlement talks, Gorge Commissioner Dan Ericksen, an Oregon governor’s appointee from The Dalles, said any settlement would be agreeable to the Gorge Commission.
In talking to the commission after the settlement was announced, Groen said his understanding was the commission would approve a “creative line drawing” of the urban area boundary.
Kahn, the attorney for Friends, said the line was creative in that it wasn’t necessarily coincident with any current boundary line.
Nichols said the commission did indeed agree to approve the settlement. “[We said,] ‘Let’s settle it.’ We will settle it too.”
Later, to a question from an audience member about whether the commission would honor a settlement it hadn’t even seen, Commission Executive Director Darren Nichols said the commission only voted to agree to put the appeals on hold for 60 days.
Nathan Baker, staff attorney for Friends, said Wednesday the settlement allows two building sites, with restrictions on development.
Arndt first sought Klickitat County approval for a three-lot preliminary short plat in 2008. It granted approval under the assurance given by the Gorge Commission that all of the relevant land fell within the urban area, a position the commission later moderated.
That county decision was appealed by the Friends to the Gorge Commission.
It was the first of seven such appeals over six years by the Friends, which a December 2013 Klickitat County court brief called an abuse of litigation and said it improperly denied “finality” for the landowner, who thought the issue was resolved.
In 2010, the Gorge Commission ruled Arndt didn’t have substantial evidence of where the urban area line was, and suggested Arndt do a survey.
The Gorge Commission’s ruling was appealed by all parties, and resulted in a 2012 settlement that the Friends didn’t participate in.
In 2011 Arndt had his property surveyed. The survey was approved by the U.S. Forest Service, on behalf of the Gorge Commission. The Friends appealed, contending the Forest Service lacked authority to approve the survey, and further contending the survey itself was flawed.
Friends claimed the survey line was in the wrong place and improperly tripled or even quadrupled the amount of Arndt’s land that fell within the urban area, and therefore outside Gorge Commission jurisdiction.
Arndt and Klickitat County contended the 2012 settlement, which accepted the survey results, made moot any debate about the accuracy of the survey. Arndt’s attorney further stated if the commission ruled against Arndt, it could face litigation for breach of settlement.
In addition to appealing the survey itself, Friends appealed Klickitat County’s short plat approval that was based on the survey. The county, however, contended the appeal was moot based on the settlement, and should have been filed in state court anyway, not with the commission.
Then, in 2013, Klickitat County sued the Friends and the Gorge Commission, seeking a court ruling to stop those two appeals from proceeding.
With the tentative settlement, the two appeals and the lawsuit will go away.
“Given the long history of conflict over land uses on their property, it was a surprise,” Baker said of the settlement.
“The Gorge Commission really exhibited good leadership, they’re acting almost as a judge in this situation, and that’s what a judge would say, to go settle it,” he said.