Friday, December 17, 2010

..Gravel foes ask Lewis to bow out..

Published: December 15, 2010

Of the News-Register

Yamhill County Commissioner Leslie Lewis will be facing a new controversy when the Baker Rock hearing re-opens Jan. 6. Opponents of the company's application to mine gravel on 175 acres on Grand Island have filed a letter - now part of the official record - asking Lewis to recuse herself in the case.

Portland lawyer Ralph Bloemers of the Crag Law Center filed the letter Thursday. He cited Lewis' Dec. 2 admission that she had independently visited some reclaimed gravel sites in Salem, which he equated to potentially prejudicial ex parte contact.

In the letter, he wrote, "While I would like to give Ms. Lewis the benefit of the doubt, her testimony on behalf of the applicant plainly demonstrates that she is either unable or unwilling to objectively evaluate this proposal.

"For this reason, I see no alternative but to respectfully request that Ms. Lewis step down from deciding this matter before a decision is reached ... that prejudices the substantial rights of the local residents, farmers and property owners who will be significantly and negatively affected by the proposed quarry on Grand Island."

While he termed Lewis' comments "testimony," they were not offered as such. She made them during a part of the hearing reserved for commissioners to disclose any ex parte contact they might have had.

For example, Commissioner Kathy George noted that she had received an e-mail after an earlier installment of the hearing from opponent Kris Bledsoe.

George said she did not reply. She said she simply forwarded the message to County Counsel Rick Sanai.

Lewis' disclosure went this way:

At the first installment in the hearing in November, wetlands biologist Craig Markham testified that mine sites reclaimed as wetlands, proposed for this one at the end of its projected 30-year life, don't always turn out as well as companies promise. He cited a set on Highway 22, near Salem's Oregon State Correctional Institution, as an example.

Lewis disclosed at the Dec. 2 continuation that she had since driven to the site to get a first-hand look. But she actually ended up at another reclamation site, near Lowe's Home Improvement Store, that the Salem Chamber of Commerce had helped turn into a park.

She described the scene as a pleasant natural setting hosting a wide variety of activities.

Lewis did not offer a direct opinion of her own, but her description left the audience with a positive impression and served to introduce information into the hearing record that neither side had introduced on its own.

Bloemers latched onto that aspect, saying, "The opponents of this application are entitled to a hearing before an impartial tribunal. This means county commissioners should not be conducting their own investigation in support of or in opposition to either party."

He cited a 2007 Land Use Board of Appeals case that dealt with the issue. In that case, a city council member independently investigated the case before him, as well as attacking opponents in the newspaper and elsewhere.

The state Land Use Board of Appeals found that with one of the arbiters of the issue collecting evidence and drawing opinions from it, opponents had not gotten a fair and impartial hearing.

However, in that case, the conduct was much more extreme that anything Lewis has been accused of.

In an attempt to remain impartial, Lewis said, she has gone so far as to avoid reading any newspaper coverage of the issue. However, she said on the advice of the county counsel's office, she could not comment on the merits of the recusal request itself.

Bledsoe submitted a letter of concern of her own. Though she stopped short of joining in the call for recusal, she took a sharply critical approach.

"It appeared that she was attempting to discredit the testimony by looking for errors," Bledsoe said of Lewis' Dec. 2 remarks. "She spent an entire afternoon looking at former rock quarries in an effort to testify on behalf of Baker Rock."

Bledsoe closed by saying, "I sincerely hope that Commissioner Lewis can rise above her biases and give this application hearing the true quasi-judicial review that is appropriate."

Under Oregon land use law, Bloemers can use his request for Lewis to recuse herself and the precedent of the 2007 case in an appeal to LUBA if the commissioners ultimately vote to approve the Baker Rock application.

Oregon law requires parties to raise any such legal issues prior to the decision, and Bloemer's letter serves that end.