ONTARIO — Ontario Mayor Riley Hill’s lawsuit with the city regarding a civil penalty for violating city code against his business, Eldorado Investments, appears to be over for now. Malheur County Circuit Court Judge Lung Hung issued a general judgement in the case on Monday, which resulted in the $500 civil penalty being “vacated,” due to a technical error that occurred during the city’s appeal hearing. It is noteworthy that in his conclusion, Hung stated that he would not rule on the issue of the requested restitution, adding that if Hill wished to, he could submit a Rule 68 statement to request the fees, as the city of Ontario argues there is “no authority to do so.”
Hung denied several exhibits cited in the lawsuit, including allegations of missteps by city staff, and submissions of newspaper articles. However, in the alleged errors, he did find the city made three missteps.
Majority of exhibits were ‘irrelevant’
According to court documents Hung took into consideration all of the previous filings as well as a hearing held on Aug. 16 to make his findings. Among these were 16 exhibits submitted by Hill’s attorney, and the city had objected to all but 13-16. Hung excluded 12 of those exhibits, and allowed two to be admitted, as they were either a duplicate record or part of another.
Hung’s findings follow for some of those denied for writ of review. In exhibit 4, Hung stated that “the feelings of an officer of the petitioner” were not relevant. For exhibit 5, he stated that evidence of other proceedings were irrelevant. For exhibit 6, Hung found that evidence of statements regarding the feelings of a former ordinance officer six months after the fact “that do not specifically discuss the proceeding” were not relevant. Hung stated that fines issued to others were irrelevant for exhibit 7 and that the city’s budget was not relevant for exhibit 8.
Exhibits 9 through 15 were newspaper articles. For exhibit 9, regarding the hiring of an ordinance officer, who was later the hearings officer, Hung found the argument, which “seems to be submitted to suggest bias,” was not. For exhibit 10, an article “regarding a mayor’s race, which an officer of the petitioner was involved in is irrelevant and outside the scope of a review of the underlying proceeding. Exhibit 11, regarding the hiring of an ordinance officer was found not to be relevant. Exhibits 13 and 14, newspaper articles about Hill’s lawsuit with the city were “irrelevant and outside the scope of review.”
Finally, for exhibit 16, Hung found that the complaint “about an employee of the respondent that involves a property not involved in this case is not relevant and outside the scope” for a writ of review. Hung added that such a review “is not authorized to determine if a city’s program is a good idea or bad idea, run well or not run well, or should be supported by the public or not supported by the public.” Rather, he said, it determines whether there were legal errors made during proceedings under that code enforcement program.
Hung findings on errors
Hill’s lawsuit also included seven alleged errors made by the city. Hung found the city made the following errors: failing to post the abatement notice on the correct property (the squatter’s property), failing to discuss the magnitude and gravity of the harm in the penalty notice which did not include the amount of the penalty, and failing to cite statutes that permitted judicial review in its final order. However, he denied the other alleged errors.
The first of these was improper service regarding the penalty notice as it was sent by certified mail which may have delayed delivery, due to the signature requirement.
“While this may be true, it did not unnecessarily delay it in this case,” Hung found, adding that the notice was created on Aug. 19, 2020 and signed for five days later.
Hung denied the second alleged error which stated that notices did not include the required information, stating that the city did meet its own requirements. Additionally, by providing photos with the abatement notice and a description of the corrective actions required, the city met its requirement.
Hung found in the third allegation, that the hearing officer’s final written order was defective and that his findings and conclusions did not include a citation to the statute or statutes.
In the fourth alleged error, regarding no finding of nuisance, Hung found the city had acted in accordance to its municipal code.
Hung found in the fifth allegation regarding incorrect finding of non-compliance that even though the nuisance property belonged to a squatter, a property owner could still be held responsible. Furthermore, he found the city “did not error in whatever level of cooperation they attempted to obtain” from Hill.
The sixth error, alleging the city erred by imposing a fine under OMC 7-1-2(L), was denied, with Hung stating that the city’s abatement notice never referenced a specific section.
And in the seventh error, stating the city erred by imposing a fine under it’s 7-1-2(P) municipal code, Hung said that the city had presented substantial evidence to find Hill had violated that section of code.
“The court finds there was substantial evidence presented,” Hung wrote in the judgement.
Will Hill seek reimbursement?
In a phone call Wednesday afternoon to find out whether Hill intends to still go after the city for his costs related to the lawsuit, the mayor said he would be “putting a written statement out pretty soon,” adding that the newspaper would receive a copy of it. The newspaper had still not received that statement as of press time Friday morning.
Regardless of whether the city will have to reimburse Hill, it did have to spend $8,065 for legal services rendered in the Eldorado Investments v. City of Ontario suit, according to information provided by City Manager Adam Brown.
In his conclusion, Hung wrote that the city erred in fining Eldorado under its municipal code 7-1-2 (L), “without substantial evidence of the abatement process” in its notification. Since the fine was reduced from $600 to $500 due to the “petitioner’s efforts to remove a squatter, which is a finding not changed by this judgement, there shall be no remaining fine.”
Finding a solution
The city manager said the procedural error will be something that the newly formed ad hoc committee will have to take into consideration when it begins to meet to review the city’s civil penalties related to code enforcement.
Due to ongoing issues with the city’s civil penalty rate structure, those fines are at a halt right now, including interest that would be added on to more than $1 Million in overdue fines. Asked whether Hill’s case would change the outcome of any of those, Brown said it wasn’t likely, as only seven of them had made it to the appeals process, which is where the error is said to have taken place.
“As we look at finding a solution with the ad hoc committee, we’ll take that into account,” Brown said.
One thing he said that the council has discussed is that the city would be better off using an attorney or justice of the peace to perform appeal hearings, so the “quasi-judicial hearings could be done by someone with legal expertise.”