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s N Hammitt, Bob From: Medlin, Johnny To: Hammitt, Bob Subject: Meeting with Attorney re: Hunter / Bardwell illegal Tree Penalty Date: Tuesday, February 15, 1994 11:22AM Yesterday, John Etter, Jan Staszewski, myself and Jens Schmidt of the City Attorney's office met with Bart Bardwell and Pat Rauber ( the principals of the Hunter / Bardwell development). 1. The stand they are taking is that they only did what was required to construct a safe haul road and feel they have documentation from BLM and OSHA to support their case. Jan feels he has information from OSHA to the contrary. 2. Bardwell and Rauber are upset about the tie of the approval of the PUD to the alleged illegal tree removal. They are awaiting the decision of the hearings official, but plan to take legal action if that condition stands. Jens stated that he and Glenn Klien feel Planning's inclusion of that provision is weak. 3. Bardwell and Rauber contend and state they can provide documents which show the cost of removing the timber was greater than the revenue from its sales. (Of course then the question becomes: Why then did they remove it? I suspect the answer is to facilitate the Engineering and Surveying for the PUD, but it would be hard to prove this.) Jan's calculation using timber value charts from the Oregon Department of Revenue suggest we could claim a timber value of up to $7,462. Using standard logging overhead values, the cost to remove this timber would have been $1,934. These two figures suggest a profit may of been made up to $5,528. Of course, since we no longer have the specific trees to look at, everything is an estimate. 4. Bardwell and Rauber state they have spent over $5,000 on Engineering and associated costs due to this alleged illegal tree removal and feel that in itself should be sufficient penalty. They did indicate they would be open to hear an offer of negotiated settlement from the City, but they wouldn't offer one.. 5. Jens feels if we take this to Municipal Court the whole case is hinged on what Jan said in a telephone conference with the permittee (5 people in attendance on their end) prior to the cutting taking place. In this telephone conversation Jan said he would allow some "wiggle" room outside the 12 foot permit limit. He states he also said they generally had to remain in the 12 foot. Bart Bardwell states they asked Jan if they would be allowed necessary cut and fill slopes to build a "safe" road and alleges Jan agreed to this. Bart states that all five people present would be willing to testify to this. 6. Jens feels the judge will end up making a decision on a "swearing match" between Jan and the 5 people listening to the telephone conference. The judge will look at Jan and the other 5 all as responsible people. 5 to 1 odds are not real good here. He stated that he would think the odds of a win would be 50/50. 7. Jens has stated he would be more comfortable taking this through the Administrative Civil Penalty process, however the low maximum fine ($3,990) may be politically unacceptable. He stated that the option of taking this through State Court still exists. However, he has been unable to come up with a theory of law in which he could sue them under to allow this option. 8. Jens estimated their legal expense to contest a Municipal Court Fine would be $2,000 - $3,000. Their expense to contest the PUD tie to LUBA (assuming the Hearing Official rules the tie is valid and that the Planning Commission didn't overturn the Hearings Official) could be $5,000 - $10,000. However, the Municipal Court process is fairly quick and the alleged illegal removal issue could be decided prior to their having to expend any money on a LUBA appeal. DISCUSSION: Page 1