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Scott and Debra Stevens have a close-up view of what they call a “truck stop” next door to their home. For years they have been fighting to have the trucking company relocated out of the residential zone. Now the case heads to the Oregon Court of Appeals, where the Stevenses hope a court order will remove the company from its Buchanan Lane location. (PHIL BULLOCK/The Observer)
Dispute over home occupation permit for Buchanan Lane trucking company has cost Island City taxpayers more than $18,000, but the issue goes before Oregon Court of Appeals on Wednesday
ISLAND CITY — Island City’s controversial approval of a home occupation permit for Jon Fregulia’s trucking company, Oregon Trail Transport, failed recently to pass muster with the state Land Use Boards of Appeals, and now the case is headed for the Oregon Court of Appeals.
The Court of Appeals will hear the case Wednesday in Salem and despite thousands of dollars spent fighting the matter, Island City will not be represented at the hearing. A record request shows the city has spent more than $18,000 of taxpayer money on attorney fees for the case.
The hearing follows LUBA’s decision to remand Fregulia’s permit to Island City, meaning the city must re-write the permit to fit local development code or rescind it.
In a letter dated Aug. 19, Island City’s Karen Howton, an administrative assistant in the city office, informed Fregulia that he no longer has a home occupation permit and that use of land in violation of city code is subject to enforcement.
Debra and Scott Stevens, who have been trying for years to have the trucking company removed from Fregulia’s Buchanan Lane property, say that hasn’t stopped trucking activity and there have been no signs of enforcement from Island City.
“We want the appeals court to look at LUBA’s decision and make a ruling. Maybe we can get a court order,” Debra Stevens said.
Island City, meanwhile, is keeping mum on the subject.
“We’ve been told by our legal counsel not to make any comment on it,” Howton said.
Island City Mayor Dale De Long declined to comment for this story.
LUBA remanded Fregulia’s permit for his trucking company in August. The board agreed with the Stevenses on some key points, among them a contention that 600 square feet in an accessory building is not enough space from which to operate a commercial trucking operations and another that too many employees work on the site.
Both issues are addressed in Island City Development Code 10.07 for home occupations. Adopted in 2001, the code requires the home occupation be no larger than 600 square feet of floor area in an accessory structure and have a maximum of one employee, other than the immediate family residing in the dwelling. Fregulia has argued that his six trucks are 8 feet wide and 75 feet long, meaning a single truck will occupy exactly 600 square feet in the workshop on his property.
LUBA disagrees, saying, “Given the undisputed evidence that each truck occupies 600 square feet and the truck maintenance operation requires additional space for storage, tools, machinery and the space to use them in, no reasonable person could conclude that it is possible for the truck maintenance operation, as proposed, to comply with the 600 foot limitation in ICDC 10.07(B).”
The board also agreed with the Stevenses that “the record and conditions are insufficient to ensure that the approved home occupation will comply with the one non-resident employee limitation” of Island City code.
John Fregulia, who did not return calls for comment, built his 4,500-square-foot shop building in 2008, but did not apply with the city for a home occupation permit until 2010, following a complaint brought to the council by the Stevenses and other residents.
The Stevenses say their quality of life is diminished by noise, dust, glare and other disturbances. The neighborhood situated outside the Island City city limits but within the city’s urban growth boundary is zoned Residential Environmental under Union County zoning laws.
When Island City granted the permit in December 2010, the Stevenses appealed the decision to Union County.
The county board of commissioners ruled in spring 2011 that the business did not meet requirements for the permit. Scott and Debra Stevens hoped the ordeal would end there.
“When (Fregulia) got the letter from the county commissioners (saying his operation did not meet permit requirements), within 12 days (the Fregulias) applied to annex,” Scott Stevens said.
By process of annexation in fall 2011, the jurisdiction of the land-use issue was out of the hands of Union County. Island City gave Fregulia the chance to apply again for his permit, and a new one, with conditions, was granted in April of this year. Among the conditions was one that said only one truck at a time will be allowed on the property and another that none shall be stored outdoors.
Scott and Debra Stevens took the case to LUBA, saying that even with the 10 conditions, the April permit was issued in violation of the city’s own development code. The couple have been represented throughout the case by La Grande attorney Phil Wasley.
Debra Stevens said she and her husband have spent “tens of thousands” of dollars on legal fees.
“You know this is costing the city a lot of money in legal expenses, and it’s a shame the citizens are paying for it,” she said.
A record request sent to Island City revealed the city has spent more than $18,000 in attorney fees on the case. The city spent $17,582.21 for the LUBA appeal, and as of the start of October, $909.50 was billed for the Court of Appeals hearing.
Mayor De Long did tell The Observer that attorney fees come out of a line item in the city’s general fund, which is primarily paid for by the city’s tax base.
According to the Union County tax assessor’s office, Fregulia’s 2013 base property tax and assessments — for the county, schools, Island City and other entities — was $2,904.39.
The Stevenses say they are not sure why Island City would fight the issue so hard.
“They’ve just turned this thing into a real neighborhood fiasco,” Scott Stevens said. “They just ignore the rules.”
Despite the long battle, a September letter from the Court of Appeals to parties of the case says the respondent, the City of Island City, “will not appear in this matter, file a brief, answering brief, or cross-appeal, nor will the City Attorney appear at oral argument.”
The city’s attorney, Portland-based Jennifer Bragar, said that instruction came from the city council.
“The city attorney takes direction from the city council,” she said. “The council did not feel it was in the city’s best interest to pursue action in this matter.”
Bragar said the council believed a ruling would come soon after Wednesday’s hearing.
The Stevenses say they would have never built their home on Buchanan Lane had they known a “truck stop” would go in next door.
“When I moved here it was great,” Debra Stevens said. “I love nature. It was just perfect for us.”
Now, though, she says disturbances from Fregulia’s truck prohibit her from hearing the bumblebees as she works in her yard.
Stevens said she doesn’t want to shut down Fregulia’s trucking company, she just wants it to follow the rules. The couple believes “it’s who you know” and that the city has played favorites with Fregulia.
“It’s really disturbing when we sit here and see city councilors over there (at Fregulia’s home),” she said.
So disturbing that when they have asked councilors to disclose ex parte contact during city council meeting on the matter, the Stevenses have been met with resistance and even hostility, Debra Stevens said.
Debra Stevens said she has been called “hateful” and “vindictive” by councilors.
“It does hurt,” she said.
On top of that, Debra Stevens was diagnosed with non-hodgkins lymphoma in June 2011, just after Union County commissioners ruled in their favor.
“It has been hard. It has added to the stress,” she said.
Her prognosis, however, is positive. Her final chemotherapy treatment is set for December.
“There is no reason I can’t spend many more years in my home,” Debra Stevens said.
So, the couple continue to work on projects and to fight.
“We’re not trying to put anybody out of a job or anyone out of business,” Debra Stevens said.
Debra and Scott Stevens say they’re fighting not only for their home, but for residential zones that could be “threatened” by the precedent of the case.
“I just know I’m tired, but I can’t give up,” Debra Stevens said. “We would love for this to be over.”
How we got to this point
Feb. 12, 2001: Island City adopts development code that sets current standards for home occupations.
2005: Jon Fregulia took over Oregon Trail Transport and expanded his trucking operation.
2008: Fregulia built a shop and storage shed on his Buchanan Lane property and on-site trucking activity increased.
May 2009: Union County officials forwarded a neighbor’s complaints about the trucking operation to Island City. The city suggested Fregulia apply for a home occupation permit.
October 2010: Island City City Council hears testimony regarding complaints about Oregon Trail Transport.
December 2010: Fregulia granted home occupation permit by Island City.
March 17, 2011: Union County Board of Commissioners first collect testimony during an appeal of the granting of a home occupational use permit.
April 20, 2011: Union County Board of Commissioners decide the Fregulia home occupation permit is in violation of county zoning rules.
May 18, 2011: Commissioners formally adopt decision to uphold appeal of Fregulia’s permit.
August 2011: Stevenses complain to commissioners that no enforcement action of the appeal has been taken and Fregulia applies for annexation into Island City.
Fall 2011: Fregulia property is annexed into Island City, strippng the county of its jurisdiction over the land-use issue. Fregulia then re-applied for a home occupation permit.
November 2012: Debra Stevens requests that the city council hold a hearing date for Fregulia’s permit.
February 11, 2013: Island City holds hearing for Fregulia’s home occupation permit.
April 8, 2013: New permit granted to Fregulia with 10 stipulations, including one that “No commercial truck trailers, parts or materials shall be stored outdoors on the site.”
April 25, 2013: A Notice of Intent to Appeal was received by the Land Use Board of Appeals regarding Stevens et al v. City of Island City.
Aug. 7, 2013: LUBA remands home occupation permit back to Island City. Stevenses subsequently appeal to the Court of Appeals.
Aug. 19, 2013: Letter informs parties that Island City will not be represented at the Court of Appeals hearing.
Nov. 6, 2013: Court of Appeals hearing.