The June 17 Wallowa County Board of Commissioners meeting spelled at least the temporary end of the Joseph Branch Rails with Trails quest for a Conditional Use Permit.
The meeting concerned the appeal of the County Planning Commission’s decision to deny the CUP to the RWT group. The Board of Commissioners consists of board chair, Susan Roberts, and commissioners Todd Nash and John Hillock.
Roberts opened the meeting by asking if the board had any possible conflicts of interest that might influence their vote.
Nash said that the main conflict he heard about is the fact that his sister, Ramona Phillips, chairs the Planning Commission. For that reason, he does not attend Planning Commission meetings or discuss any planning commission business with her.
The commissioner added that he’d had ex parte conversations at different times with members on each side of the issue.
Hillock declared that he owned four pieces of property that abut the proposed trail along the rail line. He added that he also had controlling interest in the Chief Joseph Days Rodeo grounds as a board member and that he’d had conversations with the trail group regarding the possibility of building an RV park adjacent to the rail.
Roberts said that she serves as the co-chair of the Wallowa Union Rail Authority that owns the track and right-of-way and that WURA has given the group permission to proceed with the due diligence required of them by WURA; for example, to apply for and receive the CUP from Wallowa County, because it’s zoned differently than Union County.
“I have not been opposed to it, that’s been quite clear all along,” Roberts said, “to proceeding with the plans that we laid out for the Joseph Branch Trail group to do through the rail authority board, not from my position with the county.” She added that she had no personal property involved and that she’s spoken with a number of people over the years from both sides of the issue.
Roberts then asked if anyone in the audience or any of the commissioners would like any of the commissioners to recuse themselves.
Ranch owner Annette Lathrop, who is an outspoken opponent of the trail, said that after the Planning Commission’s February denial of the CUP, she had spoken with Roberts in the commissioner’s office ... “Where you told me you had looked at the evidence, and you thought the evidence to deny was weak and that you had advised the (trail) consortium to appeal and that gives me a concern at that point that you had looked at the evidence and already made a judgment. So, I just wanted that out.”
Roberts asked if anyone else had comments and a landowner whose name was unintelligible on the recording said that he thought Roberts’ position on the WURA board and as a commissioner represented a conflict of interest as did Hillock’s background.
Trail group member, Ron Polk, said that he hadn’t spoken to any of the commissioners in detail about it, but his wife had spoken with Nash about the matter, and Polk’s understanding about the conversation was that Nash had made up his mind about the matter months ago, although Polk didn’t say which direction Nash had leaned.
Another audience member also said that he owned property along the railroad and expressed concern about trail maintenance. He also wondered if he would be responsible if his electric fence shocked a child walking along the trail. Roberts asked if he had any bias concerns about any of the commissioners hearing the appeal. He did not.
Roberts then addressed Lathrop’s concerns. The commissioner said that Lathrop had visited her office and Roberts said that she had told Lathrop she thought on the portion of the proceeding she had read, the evidence to deny the CUP was weak, and if someone from the trail group had asked her, she would have recommended they appeal it.
“No one asked me from the trail consortium,” Roberts said. They (the trail group) knew they were not to talk to us,” Roberts said. “They did not ask me, and I did not give them information on whether or not they should appeal or not.”
Roberts also addressed the question of her sitting on the WURA board as well as the board of commissioners. She stated that she was one of nine WURA board members that approved the trail group’s request to pursue a CUP.
Lathrop then said she needed clarification on whether Roberts had told the trail group to appeal through the person of Kim Metlen, co-owner of Joseph Branch Railrider Cycling.
“You’re telling me now that I misunderstood you,” Lathrop asked.
“I did not tell them to appeal,” Roberts reiterated. She also repeated that no one from the trail group asked her opinion about the appeal. She then stated the purpose of the meeting: To determine, if the panel stays in place, to hear the case as already on the record, or to hear it de novo, which means to allow new evidence into the record. She added that the burden lay on the shoulders of the trail group.
At that point, Nash addressed an issue one of the audience members spoke of: That his son had recently bought property near Marr Pond and the railroad tracks (although not in the disputed section of the CUP) and Nash’s wife, Angie Nash had said her stepson was against the trail. The commissioner said that his son and wife had reconsidered his opinion and was neutral on the matter.
“As far as my decision making on this, I’ve been pretty public in that I haven’t made up my mind on that,” Nash said. ... “It’s an issue that divides our community, and I don’t take it lightly.”
La Grande attorney, Charles Gillis, who appeared as a stand-in for JBRWT attorney, Garrett Stephenson, addressed the question of recusal. He read from a case from the Land Use Board of Appeals, LUBA 2016-045, which states no specific case establishes what is necessary for a party to prove actual bias by an elected official in quasi-judicial hearings. Gillis quoted the case as saying, “the bar for disqualification is high” and went on to cite several examples, such as intense involvement in the affairs of the community or political predisposition that did not qualify a public official for disqualification.
“Thanks you, sir,” Roberts said. “I’ve read that one multiple times.”
Roberts also reminded the audience that despite personal opinions and other interests, the commissioners had sworn they would put these aside and weigh the evidence on its own merits before rendering a decision. She asked the other two commissioners if they could render an impartial decision, and Hillock took the opportunity to recuse himself. He reiterated his RV park conversations with Penny Arentsen (who had resigned her position by this time) and also said his reading of case law allowed him to recuse himself from a vote.
“That’s been my decision all along,” he said.
“Are you telling me you’re not going to hear it,” Roberts asked.
“Yes,” Hillock said. “That’s what I said.”
Roberts directed the question at Nash.
“I’d rather not hear it,” he said. “But I will.” He also motioned to hear testimony de novo on the matter.
Roberts seconded the motion and said she’d like to hear new and compelling information — as long as it was new. Hillock attempted to vote on the motion and Roberts reminded him he’d recused himself. He attempted to argue the point, but Roberts remained steadfast. The motion passed.
An audience member brought up Hillock’s self-recusal and asked if the reasoning given behind the recusal actually met the bar for a conflict of interest.
Roberts replied that the question had already been put to the county’s land-use attorney, Dominic Carollo, who also said Hillock’s activities did not constitute a conflict of interest.
“However, Mr. Hillock thinks it does,” Roberts said. Hillock defended his position by saying that his reading of “case work” indicated differently and a vote could lead to an ethics violation.
Wallowa County Planning Director, Franz Goebel, explained that the major criteria under consideration is whether a trail would substantially change adjacent farm use or create a substantial increase in costs for famers adjacent to the trail. The appellants had to prove that wasn’t the case.
Lathrop asked to have until July 1 to present evidence because ranchers had only just heard about how the case would be heard and the kind of evidence to submit.
After consultation with the county’s land use attorney, Roberts announced that any written evidence be submitted to the commissioners by 5 p.m. on July 1.
A commissioners meeting slated for 6 p.m. on July 9 would examine and hear the new evidence and either make a decision or save the decision for a later date.
Gillis said it appeared to him that the ranching group would have more time to present evidence that the trail group would have to respond to it. Roberts said any party could submit evidence within the time frame. Gillis still registered a pro forma objection.
Roberts added that after July 1, either side could examine any of the submitted evidence for rebuttal. She repeated that only new evidence or old evidence for clarification would be heard at the July 9 meeting.