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LUBA hears LO case

Potentially sticky legal issue raised

A state board of appeals will hear arguments today on whether the city of Lake Oswego overreached its authority while approving a four-story, 45-unit senior housing complex for the Waluga neighborhood and bent a federal definition of disabled people to include the elderly.

The Waluga Neighborhood Association took its appeal of the complex - a low-income development aimed at seniors 62 years of age and older - to the Oregon Land Use Board of Appeals in May after losing an appeal to the Lake Oswego City Council in January.

The decision to approve the project, called Oakridge Park, was originally made by the city's Development Review Commission October 2007. The neighborhood association has opposed the development because of its size and lack of parking.

The project by the nonprofit Northwest Housing Alternatives was given flexibility on typical development criteria because the building would mostly house senior citizens. But Waluga residents feel the city waived too many rules and failed to hear residents concerns, shutting out their grassroots effort to organize.

Now, it isn't just the size of the building or the potential parking problems that are raising hackles in the Waluga area.

Also at issue is a potentially sticky legal problem, one that attorneys for the neighborhood association say the Lake Oswego City Council created by upholding the development permit.

They say the city council, while interpreting a local definition of 'congregate housing,' legally defined all people age 62 and older as disabled.

Kevin Luby, attorney for the Waluga Neighborhood Association, said the term 'congregate housing' is a federal one, frequently in use in talk about housing complexes, which are sometimes funded by federal dollars.

In deciding who that money flows to, the federal government defines 'disabled people' that can be served by the housing type. According to the federal definition, those people are mentally or physically handicapped and unable to live independently.

But Lake Oswego's city code also includes a definition of 'congregate housing' and the disabled people that can be served by the housing type locally.

In approving the Waluga development, the city council found that 'age, itself, (of a certain age) is a life function disability' for the purposes of the city's development code.

Asked whether Lake Oswego officials believed senior citizens were also disabled people, city attorney David Powell heaved a sigh.

'Pardon me while I just take a deep breath,' he said.

Powell said the city's definition of 'congregate housing' in the local code has no relationship to the federal one.

'They're mixing apples and oranges,' he said. 'This wasn't meant to track a federal definition of 'congregate housing,' this was meant to track a Lake Oswego definition.'

Powell said the Lake Oswego City Council, in upholding the decision to approve the senior housing complex, simply wanted to give design latitude to age-restricted housing.

'The city council made no such declaration that when you're over 62 you're disabled,' he said.

Whether the city has inadvertently created a conflict with federal law is now up to the state board of appeals.

The case will be argued today at 1:30 p.m. at 550 Capitol St. in Salem, on the second floor in the small hearing room.

Arguments before the Oregon Land Use Board of Appeals are also expected to cover whether the Lake Oswego City Council and Development Review Commission overlooked likely parking problems at the proposed site. Plans for the complex include 20 parking spaces for up to 90 occupants.