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Neighbor's lawsuits, one appealing to the Supreme Court, question state's historic designation process.

TRIBUNE PHOTO: LYNDSEY HEWITT - Eastmoreland resident Tom Brown, who works in real estate, is suing the state over the historic district process, an issue that has divided the neighborhood for more than a year.Residents of Peacock Lane, Portland's place to see homes decked out with Christmas lights, recently qualified for the National Register of Historic Places. But the hotly contested historic district nomination for Eastmoreland, 3 miles south, continues to sit in limbo.

Six months ago, the State Historic Preservation Office asked the National Park Service — the ultimate decider of places listed on the register — to send back the Eastmoreland application without approval, admitting it didn't believe the form contained accurate information about the number of owners in the proposed district boundary. That was after it had previously recommended the nomination be sent off for approval.

Since then, the state office has solicited answers from the Oregon Department of Justice on how to accurately count the number of homeowners, and the National Park Service on procedural matters. The National Park Service finally responded last week, but the Department of Justice hasn't weighed in yet and isn't commenting publicly on the matter.

"Oregon DOJ serves as the legal counsel for the State Historic Preservation Office. So any legal advice we provide them would be considered attorney-client privileged, so I am not able to share it with you," said Kristina Edmunson, communications director for Attorney General Ellen Rosenblum.

"The attorney general's office has been aware of the need to clarify the definition of owners since last spring and their lack of response to this pretty straightforward question has been unfair to opponents and proponents of the historic district," said Rod Merrick, chairman of the Eastmoreland Neighborhood Association.

Ian Johnson, associate deputy state historic preservation officer with Oregon Parks and Recreation, said there's no known time frame for a DOJ response. "They're well aware that it needs to be done. They've said it's a resource issue — they've got a lot on their plate."

Legal challenges

Meanwhile, resident Tom Brown is pursuing two lawsuits on the matter, including one appeal to the Oregon Supreme Court after his case was shot down by the Oregon Court of Appeals.

He and his lawyers are arguing that Oregon's entire historic district process is fraught with issues.

"The thing is, only wealthy neighborhoods can do this. No one's ever really challenged the whole program," said Nathan Morales, Brown's lawyer.

They say they weren't afforded due process and that the State Historic Preservation Office didn't follow the Oregon Administrative Procedures Act.

"I'd just stress the importance of these procedures as a result of the property rights at risk here," Morales said. "Whenever the state comes in to deprive an individual of his or her property rights, they have to provide sufficient process, and they haven't done so here."

Fighting infill

The Eastmoreland Neighborhood Association board started a campaign for the historic district in the spring of 2016 in response to the city's Residential Infill Project, which aims to change zoning to build more homes in neighborhoods in order to accommodate a growing population.

Many neighbors say the infill results in needless demolitions that then make way for more expensive, unaffordable housing.

Many residents turned to the historic district as a reprieve from demolitions, because it makes it harder for developers to build, as they have to build the home with a certain aesthetic posed by the district. Homeowners in the boundaries are subject to design review if they decide to alter their homes.

The entire issue split the affluent Southeast Portland neighborhood in half, some even accusing those pursuing the designation of being discriminatory in trying to keep people from moving into the neighborhood.

The other side argues that they're preserving green space and preventing demolitions.

Close vote spawned procedural questions

"Since no other historic district that has ever been proposed in Oregon has ever been this close, the State Historic Preservation Office had never been confronted with who actually are the owners of the real estate," Morales said. "They've just been going off Multnomah County tax records, which are woefully inadequate when you're talking about fee-simple ownership."

The agency ran into issues counting the number of objections in the spring. Based on county tax records, there were 2,600 properties in the historic district boundary, according to the State Historic Preservation Office. To oppose the district, residents must submit a notarized objection.

With other historic districts, officials said it was much easier to gauge popular support, so they never had to look at homeownership in such minute detail.

The preservation office said at the time that state and federal rules don't clearly answer how to resolve complications from dead property owners and trusts, which is why they're awaiting guidance from the attorney general's office.

Morales doesn't wholly blame the preservation office, although that's where the lawsuits are directed.

"I really believe they're trying to do the right thing, but at the end of the day, I don't think they know what the right thing is," Morales said.

What's next

The city's Historic Landmarks Commission will present a State of Preservation report to Portland City Council on Nov. 29.

Portland's Bureau of Planning and Sustainability is working on a code project to allow for more historic preservation options at a local level, so that neighborhoods have other avenues aside from the national register.

The Laurelhurst neighborhood is pushing ahead with a historic district nomination, while some residents there continue to oppose the effort.

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