The owner of a hilltop property on the slippery end of a February landslide warned the city of Lake Oswego that drainage systems had water-logged his property two years ago, creating a landslide risk.
A landslide at The Terraces Feb. 2 wiped out a portion of a popular hiking trail - the William Stafford Pathway - which is adjacent to the condominium complex owned by real estate developer Martin Kehoe.
Debris from the landslide covered a portion of the William Stafford trail, which runs along the Willamette River between George Rogers Park and Old River Road. It also clogged a culvert that drains water from the area.
As debris continues to pool on the trail, the area is also flooding and land along the path is eroding. City officials closed the trail to hikers and bikers after the landslide and say additional landslides could still occur.
They deny any responsibility for the problem and have asked Kehoe to stabilize the hillside and clear the debris from the trail so they can reopen it.
But a frustrated Kehoe, who alerted the city to flooding on his property two years ago, said the city bears some responsibility for the landslide because it failed to maintain adequate storm water controls uphill.
'I want to get that trail open as soon as possible, but the city is going to have to show some degree of cooperation,' Kehoe said. 'We were warning the city that all of the water coming down the hill was too much.'
City records show Kehoe's attorney sent a letter to officials in June 2006 telling them that the drainage system tied to Hallinan Creek was releasing water at volumes and velocities that exceeded capacity of the creek.
The result, the attorney said, was that pipes meant to carry water under Highway 43 to the Willamette River were being inundated with water and failing.
'The problem is so pervasive that the city now identifies portions of the subject property impacted by the flooding as a possible slide area,' the letter said.
At the time, the cost to eliminate the problem was estimated at $543,352, which included design and construction costs for a new system, plus excavation, the cost of a new culvert, permits to build the culvert and testing and landscaping on the land.
Kehoe's attorney William Cox threatened to sue the city if it didn't do something about the water on Kehoe's property, calling it a trespass.
He pointed to a lawsuit won by local residents William and Paula Vokoun in 2003, which held Lake Oswego liable for damages after a drainage problem caused a landslide on their property.
Cox never followed through on the lawsuit threat in 2006 and city officials tendered the letter to the their insurance carrier, which dropped the issue for lack of response, a related letter said.
But Kehoe now says he doesn't intend to fix the landslide or clear the William Stafford Pathway without help from Lake Oswego.
He offered to pay half the cost of repairs - $51,000 - if Lake Oswego will pay the rest.
'Municipalities are required to do some type of retention or diversion system for storm water,' said Kehoe.
'The city of Lake Oswego decided to allow hundreds of houses up on the hill with no down-gradient retention system … They have taken millions in building permits and they haven't put any of that money back into a growing problem,' he said.
David Powell, city attorney for Lake Oswego, disagrees that the city has any fault in the landslide. He said while a public culvert owned by the Oregon Department of Transportation does carry water across Highway 43 toward The Terraces, a private pipe owned by Kehoe picks up water from there.
It is that pipe that failed, Powell said, and it was Kehoe's responsibility to maintain it.
He said drainage systems uphill from the area of the landslide are adequate and that the city is not responsible just because development there has occurred.
'The city cannot forbid people from developing their property and the mere fact that water runs downhill does not mean the city is somehow negligent,' he said. 'I see no indication that any of the design of the storm systems above in the Hallinan neighborhood have been done negligently.'
Previous property owners of The Terraces have challenged both the city and the Department of Transportation for water-related issues on the site, with little luck.
But Kehoe said he is willing to settle the matter in court, if need be.
'I don't want to spend three years in court with the city of Lake Oswego but I'm willing to do it to get this trail open,' he said.
The stalemate is meanwhile sidelining hikers and bikers, who use the popular trail and its link with Old River Road to travel between West Linn and Lake Oswego.
Powell said city officials would review options to safely reopen the route and could decide to force a fix or clean the mess on their own.