For the neighbors who prevailed against Salem Hospital in a case decided by the Oregon Court of Appeals last week, the surprise was not the victory but the direct and clear language of the prestigious court to the hospital’s attorneys.
In the July 15 decision, Presiding Judge Timothy Sercombe, Judge Erika Hadlock and Judge Douglas Tookey of the Court of Appeals of the State of Oregon described Salem Hospital’s legal reasoning as “circular” and said, “we decline to make arguments for the hospital that it has not endeavored to make for itself.”
“It is an important decision,” says Roger K. Heusser, neighbor in South Central Association of Neighbors (SCAN), “and a major accomplishment for SCAN. This hopefully means a turning point, where the hospital has to follow the rules like everyone else.”
“I call it a ‘David and Goliath’ win,” says Lorrie Walker, another neighbor “where high-profile lawyers with almost unlimited money lined up against ordinary neighborhood people who just wanted a healthy community.”
The dispute originated with community concern for pedestrian and bicycle safety at a congested Mission Street intersection, Salem Health’s intention to cut down 265 to 290 year old Douglas Firs and nine significant Oregon White Oaks and the hospital’s plan to install 264 surface parking spaces on the 8.42 acres that was formerly the Oregon School for the Blind, where the hospital is building a rehabilitation center.
The property is located within the SCAN neighborhood, an area south of downtown and next to Salem Hospital.
The hospital requested for a variance to city code so it could augment the 189 parking spots allowed by law by 75 additional spaces. It argued that the number of spaces it installed should be calculated by considering the size of the entire hospital campus, instead of just the size of the School for the Blind property alone.
In 2014, the city of Salem agreed to the hospital’s plan. SCAN appealed to a city hearings officer.
In that process, Salem Hospital was represented by Garvey Schubert Barer of Portland, a firm that operates in Beijing, New York and Washington, D.C. Curt Fisher, SCAN Land Use Chair, spoke for the neighbors.
The city hearings officer agreed with city staff, and SCAN appealed to the state Land Use Board of Appeals (LUBA).
When neighbors presented their case before LUBA in December, they were represented by Salem’s Connolly & Malstrom. Tyler Malstrom was raised in rural Oregon and graduated from Willamette University in 2009.
“Sitting in that room, seeing all those people with $400 to $500 suits, was a real eye-opener, says Walker.” “They were some of the most high-powered lawyers in the state, lined up against the people of the neighborhood.”
When LUBA sided with SCAN, the Hospital appealed to the Court of Appeals. Now the Court of Appeals has also sided with SCAN.
“This was a case of rookies against all-stars,” says Jon Christenson, a SCAN Board member.
Judge Erika Hadlock, who has served on the Oregon Court of Appeals since 2011, wrote the precise July 15 decision. Judge Hadlock found, “The hospital has not stated, or provided any support for the necessary premise of its argument. The information is not in the hospital’s brief, an appendix, or the record…” On another point Judge Hadlock wrote, “The problem with the arguments that the hospital advances… is they do not actually confront the text… [of Salem City code].”
In sum, Judge Hadlock concluded, “the hospital has advanced no reason for us to conclude that LUBA’s understanding of [city law] is incorrect.”
Malstrom describes the win as “a great example of conscientious and involved neighborhood volunteers utilizing the land use laws and procedures… for responsible urban development in their neighborhood.” The neighbors stuck together, he says, “and have been vindicated by both the Land Use Board of Appeals and the Oregon Court of Appeals.”
Christenson has studied the Court’s decision. “It is clear,” he says, “the hospital’s brief had no substance; ‘The Emperor Had No Clothes.’” The Court of Appeals” opinion “makes very clear how hollow the legal arguments of Salem Hospital were.”
The hospital has prevailed in two related matters; in one, LUBA sided with it in its wish to tear down Howard Hall, the last remaining building of the School for the Blind and in the other, the Court of Appeals rejected a brief, filed by resident Tim Cowan asking it to review LUBA’s decision.
“Salem Hospital is pleased,” says Sherryll Hoar, Strategic Communications Administrator at Salem Hospital, “that the court rejected the appeal of Mr. Cowan and upheld those portions of the LUBA decision to which he was objecting.
The disappointment the hospital’s neighbors feel towards it extends back for years, Heusser says. It runs back to at least 2004 when the hospital was confined to what is now known as its “Building B” and wanted to expand onto the land to the east occupied by historic Bush Elementary School at Mission and University. Heusser says that hospital CEO Norman Gruber promised neighbors three modest things in return for the expansion; that a memorial pole constructed by school children to commemorate Native American Chief Quinaby, rumored to have been buried on school grounds, would be retained; that a plaque memorializing the historic 1936 Bush School would be erected and that a memorial rose garden would be planted.
“The Bush School plaque was never installed,” he says. “There isn’t even an indication that the school ever existed there, and the children’s memorial to Quinaby was taken down, never to be seen again.” Roses were planted, but not as a memorial garden.
Numerous neighbors, some of whom have lived in their homes for generations, tell Salem Weekly these repeated failures show a lack of good faith.
Another blow to relations occurred in November when a letter was drafted by hospital attorney, Keith Bauer of Parks, Bauer, Sime, Winkler & Fernety LLP, threatening the SCAN members who objected to the hospital’s development plan. Bauer’s letter stated that the Hospital “will seek and award of attorney fees in this case as the positions taken by SCAN are not founded in law.” An individualized personal letter was sent to the home of SCAN’s Land Use Chair, Fisher.
Fisher, a graduate student in urban and regional planning at Portland State University, explains Bauer’s letter saying, “I think they knew their case was weak, and they needed to do something to get the outcome they wanted.”
The “threatening” letter was a game-changer for neighbors like Walker, who had been on the fence. “When you look over the last couple years,” she says, “it all started out so nice. The hospital was nice to us, and we were a very trusting group. They said they wanted to integrate with the neighborhood, and we believed them. But they haven’t been friends of the people of Salem, and they haven’t been friends of the neighborhood.”
Neighbors’ mistrust was kept at a steady boil in 2015 when the hospital, (in all cases legally,) destroyed Historic Howard Hall over community objections, cut 32 trees on the formerly green acreage where neighbors had walked for decades, and purchased a private home in the Gaiety Hill neighborhood under an assumed name to keep the price low.
Now there is concern that, with the support of the City of Salem, the hospital will disregard the Court of Appeals’ decision as well. The hospital is grading its property, observers say, with the evident intention of removing all but about five original trees.
Last week, City Attorney Dan Atchison stated to the daily paper, that the hospital has “other avenues under city code to accomplish its original plan… and could reapply to get their parking plan approved.” Atchison told Salem Weekly that the city is required to issue a new decision on remand by mid-October.
Heusser calls Atchison’s statements “scary” and Malstrom says, “It is troubling that the city’s first response has been simply to state that, despite these clear [LUBA and Court of Appeals] rulings, they will find another way to approve the Hospital’s plans.” Malstrom hopes that the city and Salem Health “will be willing to enter into more productive dialogue with the neighbors,” rather than starting “another round of appeals.”
The hospital, Hoar says, is “reviewing the court’s decision and exploring options. Salem Health’s plan to provide parking for the adaptive playground, outpatient rehabilitation center, hospital hospitality house and school for the blind commemoration is a good one, and we believe it complied with city code. The city also believed the plan complied with its code.”
Walker reflects that the older she gets, the more she thinks “about future generations, and what they will see. I told Salem Hospital early on, the value of critters, like squirrels and historic Howard Hall, and the special trees that have grown here. Other parts of the country seem to do so well to protect these things. But when you look at the kind of money the hospital has spent just to fight this stuff – it just doesn’t seem to be part of their focus.”