Monday, December 7, 2009

Rising Tide: The Battle for Battle Creek

Published March 2009 in Salem Monthly.

A lot of people liked the lede graphs in this article. I was uncertain about it even as we went to press, so it was huge relief to get the positive feedback.

Before reading any further, hold out your right hand.

Tilt it to the right to keep the thumb level. Spread and curl the fingers as if wrapping them around a bowl. The four fingers represent four creeks, Waln (index finger), Battle (middle finger), Powell (ring finger) and Scotch (the pinky), that flow into and merge in the basin created in the palm of your hand. The thumb is Battle Creek as it flows out of the basin.

The area surrounding the basin experienced some of the Salem area's most intense flooding in 1996 and an application currently under consideration by the city of Salem would allow it to be developed from a golf course into a senior living community.

The question to be kept in mind, if one chooses to continue reading is: What, if anything, should be constructed in that basin?

"It's a difficult case," said Lisa Anderson, an associate planner with the City of Salem, who is handling the application. "Obviously, people bought these homes because of the area surrounding them and, specifically, the golf course. But the land itself has never been public land."

While some of the homes adjacent to the course are in the most immediate danger in the event of another flood, the neighborhoods surrounding the Battle Creek area is almost otherworldly. Middle class homes, manufactured homes, condominiums, cost-efficient apartments and multi-million dollar estates are found within blocks of each other. It’s simply hard to find areas that encompass such a broad range of socioeconomic diversity.

It also means that whatever happens to the property is likely to impact the entire surrounding community, and may have even broader flooding effects.

For love of a golf course

The basin was known for years as Battle Creek Golf Course.

The course was installed in the 1960s and the privately-held property it sat on transferred hands several times over the years until the late 1990s, when the owners found a potential buyer looking to turn it into a housing development.

“It was the first time the neighbors realized that the property wasn’t theirs,” said Stew Stone, the developer representing current owner Terry Kelly.

Kelly, who was approaching retirement and interested in owning a golf course, stepped in to purchase the property and announced he would continue operating Battle Creek Golf Course.

“He always realized it suffered from maintenance problems,” said Stone.

Battle Creek was never meant to be Pebble Beach. It was a blue-collar course from the start - a trip around 18 holes cost $29.

“You didn’t play Battle Creek because it was the best. You played there because you loved it,” said John Shepard, a neighbor of the property and longtime patron of the golf course.

In the dog days of the Mid-Willamette summer, it wasn’t uncommon for the greens on the course to turn brown. Irrigation was one of the problems Kelly knew he would encounter when he took ownership of the course, according to Stone.

“Some water rights to the wells feeding the irrigation system came with the property, but those weren’t enough to keep the course pristine year round,” said Stone. “Some water was pulled, with the proper permissions, from the creeks in the area, but it still wasn’t enough.”

Local geologist John Rehm claims to have visited the course as late as July and seen water overflowing an artesian well on the site, but admitted it was possible for the wells to dry up severely over the course of the next month.

Kelly’s other option for water was paying the city for additional treated water to irrigate the grounds, but the expense outweighed the benefit and would have driven the cost of a round of golf beyond what customers would be willing pay for a course like Battle Creek, Stone said.

Meanwhile, the restaurant and lounge building that once stood on the property was slowly deteriorating and Kelly began a string of “band-aid” fixes rather than a much-needed overhaul, Stone explained.

Still, the surroundings had their appeal, said Sydney Brewster, a local attorney.

“I had breakfast at the restaurant there for a decade after church every Sunday,” said Brewster, who now acts as legal counsel for the Comprehensive Plan Supporters (CoPS), a citizen group fighting the current application for rezoning and development of the Battle Creek property. Brewster’s late parents lived in a home off the golf course and she moved to a townhouse in nearby Battle Creek Commons about five years ago.

Complicating the continued life of the golf course further were new regulations requiring changes to the wells that were used for irrigation, Stone said.

“Some of the wells that fed the property were no longer even on the property itself. When attempts at drilling new wells were made, we discovered that the wells weren’t recharging at the levels needed to sustain the property,” Stone said.

Stone estimates total losses amounted to about $100,000 a year between the time Kelly took ownership of the property and 2006. The final tee in the course’s coffin was the mix of needed repairs and the uncertainty of access to water rights in the future.

“The estimated cost to increase the level of play, between the course itself and the restaurant and lounge, was about $5 million. The tricky thing about water rights is that they’re revocable if water levels drop below a certain threshold. We could have made all the changes and then lost access to the water, which would increase regular upkeep costs exponentially,” Stone explained.

Moreover, it was doubtful that Battle Creek regulars would be willing or able to bear the brunt of such expenditures through increased greens fees. Stone estimated that the cost of a round of golf would have at least doubled, possibly tripled. In December 2006, the announcement was made that 2007 would be the last year of operation for Battle Creek Golf Course.

The announcement sparked efforts to save the course. A petition circulated around the neighborhood and area garnered nearly 4,000 signatures.

In an act of support, Shepard and Brewster, along with others, organized a “golf-in.” About 75 participants met at the transit station downtown and rode the bus to Battle Creek for a round of golf. They were met at the course by newly-hired security guards, but got in the round of play anyway.

“We were just trying to figure out the best way to get our message across to the city,” Shepard said.

Zoned out

According to Stone, the diversity of the community surrounding Battle Creek Golf Course was one of the considerations when Kelly began looking to repurpose the golf course property.

“We wanted something low impact,” Stone said. “A senior living community, by our estimation, would have the lowest possible impact on traffic and a variety of other concerns.”

To break ground on such a project, the current zoning of the property must be changed from public amusement to residential, multi-family residential, and commercial. Seems simple, but none of those designations jive with the property’s classification as open space in the Salem Area Comprehensive Plan.

The land has always been privately held, which makes matters that much more difficult to disentangle.

“It’s the last open space south of Bush’s Pasture Park,” Shepard said. “What good is a comprehensive plan if it’s just a tool to be changed by application?”

Brewster is concerned by the prospect of losing the public amusement zoning.

“It’s an incredibly rare designation and I can’t imagine where we’d find another space to replace it,” she said.

The public amusement designation permitted the installation of a golf course, but also allows development such as go-cart courses, amusement parks, motorcross tracks or even shooting ranges.

“We could go out and develop (the property) as any of those tomorrow without asking for approval, but we chose not to,” said Stone. “We have always tried to take into consideration the impact on the surrounding community.”

Kelly tried once already to have the property rezoned. The application was taken under consideration by the city’s planning commission in February 2008 and unanimously rejected.

Commission members cited a lack of compelling evidence that the project was needed and flooding concerns as reasons for rejecting the application.

At the time, Commissioner Jim Wiles questioned whether it was a case of “a property looking for a project or a project looking for a property” and felt that there were other locations within the city suitable for the senior living community.

After the rejection by the planning commission, Kelly pulled the application from the city before it could be considered by the city council.

“It kept it from looking like the slam dunk-rejection that it was,” said Brewster. “It seems simple, if a buyer purchases land with a certain designation they are agreeing to the uses set forth under that zoning code.”

Five months later, it was announced the city would purchase the southern portion of the property for the purposes of flood mitigation.

An opportunity seized

Salem Public Works Director Peter Fernandez first became aware of the Battle Creek property, at least more than peripherally, after Kelly filed the initial application to have the entire property rezoned.

"I saw the confluence of the four creeks and realized it would have been a great opportunity for a concerted effort at environmental stewardship," Fernandez said.

When the first rezoning application was rejected, Fernandez started talking to other city officials about his ideas and received a warm reception. He took it upon himself to call Kelly and inquire about a possible purchase. The city and Kelly worked out a deal for about 40 acres in the southern part of the property for $3.5 million, including the area where the four creeks merge into Battle Creek and flow out of the property.

"The vision is to lay out the banks of the four creeks to create additional water storage capacity and plant native species at the new edges," Fernandez said. Just as the city officials were preparing to close the deal, the bottom dropped out of the financial markets and the property purchase nearly fell through.

In the end, a deal was reached requiring the city to pay $200,000 upfront for the title to the property with no interest and no payments until 2011. At that point, the city can either walk away from the property, seek outside funding or Kelly will provide a mortgage. Should the city officials choose to walk away from the property, the city will retain the rights to property within the 50 feet of the centers of each creek for flood mitigation and environmental improvements.

For now, Fernandez intends to commence master planning the area in late summer or early fall of this year.

After the purchase was semi-finalized, Kelly reapplied to have the remaining property rezoned for the senior living community. The planning commission members unanimously approved the application in December 2008. Members cited the city's purchase of the southern property as sufficient to alleviate any flooding concerns.

Raising the spectre

Aside from the zoning conflicts, the arguments revolving around the Battle Creek property always seem to come back to water. Not enough to sustain a golf course. The potential for too much in the event of a flood.

"We've already had a lot of development in the surrounding area since the 1996 flood. By adding more impervious surfaces, like roofs and streets, we end up with that much more runoff," said Shepard.

"It's like a string of pearls," said Rehm, the geologist. "The creeks are the string connecting patches of wetland where the flood waters pool. Without (the Battle Creek basin) the water will get pushed further out into the neighborhoods."

Too much is simply unknown for area residents to feel comfortable.

The most recent Federal Emergency Management Agency data regarding flood potential around the property is more than two decades old, and vast amounts of development have occurred in the intervening years. Several residents have photos showing 1996 flood waters rose past FEMA's projections for a 100-year flooding event. The state's climatologist identified the 1996 flooding as a 25-year event.

Sara Jondahl, the city of Salem's flooding specialist, has an album of photos showing flooding throughout Salem in 1996, but none of them were taken at the locations where residents saw water go beyond FEMA projections.

"I can't say for sure whether it (went above the FEMA projections) or if it didn't, but it probably did," said Jondahl.

However, issues such as flooding weren't brought up as other areas around Battle Creek were marked for development, and disallowing the zoning change for such reasons amounts to unequal treatment, said Stone.

Studies performed by Kelly's planners demonstrated that the new development would have minimal, if any, impact on water flowing through the area, Stone added.

If the rezoning application is approved and the senior living community built, Stone and Kelly have asserted they will attempt to alleviate any runoff created by the new impervious surfaces.

"We'll be aiming for a 'zero net increase' as we plan and design the community," Stone said. "If runoff can't be alleviated at Battle Creek, we've pledged to help alleviate it further upstream at Creekside Golf Course." Kelly also owns Creekside.

Area residents are still fearful that the city will choose to walk away from the southern part of the property when the two-year window closes.

"In the meantime, the city's going to be using taxpayer dollars to improve the property that may benefit the developer if the city relinquishes ownership," said Lora Meisner, a nearby resident of the property. "All we really want is for someone - anyone - to do a hydrology study and determine the impact of further development before the application is approved."

Betty and Bill Charnholm, who own several properties close to the Battle Creek area, are participating in the fight against the new development.

"I thought the first decision by the planning commission was wise and just," said Betty. "They don't have the right to jeopardize a whole community, especially when they knew what they were getting into when the property was purchased."

Bill expressed concern for the greater Salem area because Battle Creek flows south to Turner where it joins Mill Creek and flows back into the heart of Salem.

"Where is all that water going to end up if we don't start doing something smart now," Bill said.

The cost of a new FEMA study was pegged at about $100,000 by several sources.

Regardless of the findings of such a study, Fernandez is aware that any improvements that can be made to the city's portion of the property are unlikely to be enough in the event of a major flood event.

"It might help alleviate a 5- or 10-year flooding event, but beyond that it's just unknown," Fernandez said.

Fernandez is also hopeful that planned stormwater system improvements, such as the planned replacement of the Fairway Avenue bridge, will relieve some of the choke points before and after flood waters enter and leave the Battle Creek property.

Where to go from here

The rezoning application will be discussed by the Salem City Council during its April 6 meeting. The hearing will include time for public testimony.

"We're putting all our guns into that hearing," said Brewster, the CoPS attorney. "There’s no independent look to see the bigger picture impacts. And there certainly doesn’t seem to be any consideration for the goals set forth in the comprehensive plan."

Brewster thinks a decision will be reached the night of the hearing, but she and CoPS activists are keeping their options open. She might be willing to bend if the council places conditions on the development, such as the funding of a hydrology study.

"I just don't see why the developer can't pay for the study, or the cost couldn't be split between the two parties. What is it going to hurt for everyone to know for sure the impact of developing this piece of property," she said.

If city officials choose to forgo such a study, Brewster is prepared take the case to the state’s Land Use Board of Appeals based on due process and comprehensive planning concerns and alleged violations of Salem’s revised zoning code.

"I feel a personal love for the property," said Brewster. "We have ducks, widgeons, geese, fish and eels that all call it home. I would like to see it preserved for the city of Salem, because once it's gone, it's gone forever."

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