Lawsuits targeting Oregon City plans at parks
Philip and David Abraham have filed a lawsuit in Clackamas County Circuit Court seeking a public vote on the proposed development at Wesley Lynn Park.
The brothers who live near the park made it clear that the lawsuit is intended to protect democratic values, which they believe are being ignored by some Oregon City officials. Oregon City's charter prevents changes to the legal status of a park, or uses of parkland for nonpark purposes, without a vote of the people.
Oregon City voters had twice rejected a proposal to use parkland for access to a nine-home subdivision, but the developer was able to get the project approved without a ballot measure by convincing city officials that no public vote was necessary after all.
"Any government body stripping away the people's right to vote in the name of progress or development is tantamount to the destruction of democracy itself," David Abraham said. "We elect government officials to protect our rights and uphold our laws, not change them or take them away to silence our voice. There is far more at stake than the loss of parklands; the people need to be heard or will forever be silenced into submission."
In West Linn-based Icon Construction's third try to build at the 17.5-acre park on Leland Road, a 4-1 vote by City Commission on Oct. 18 on Oct. 18 decided that a vote by citizens wasn't necessary for a revised proposal. The developer shrank the proposed encroachment on parkland to include only 12 feet of roadway inside parkland, instead of the 50 feet of parkland easement that voters rejected twice in the previous proposals.
The Abraham brothers' lawsuit is based on Chapter 10 of the Oregon City Charter, which says that only recreation-related "buildings or structures" can be built on parkland without a public vote. Buildings and structures that are not related to recreation, on the other hand, must go to a vote of the people. According to the Abrahams, the road and other structures recently approved by the City Commission are non-recreation structures that require a vote, and it was illegal for the commissioners to approve the development when the voters have twice rejected similar proposals.
Icon Development's proposal lost by a mere six votes initially in May 2016, and Oregon City voters then rejected the developer's same proposal for a subdivision at Wesley Lynn Park by an even larger margin, 51.18 percent to 48.82 percent, in November 2016. The Parker Knoll Subdivision developer then hired an attorney who has for more than 25 years focused on obtaining land-use approvals.
In public statements before the City Commission vote, the Abrahams contended that proposing to build a road over an Oregon City park legally qualifies the proposal for a vote of the people under the rules of the city charter. They noted that modern roads are complex structures with multiple engineered components, including sub base, base course, sub grade, surface/wearing course and drainage structures.
Oregon City's city attorney said the fact that the asphalt isn't there doesn't change how the property was purchased with an easement in the 1960s, prior to the 1970 charter amendment. The easement area is expected to include a private road, a swale and a public sidewalk.
City and neighborhood leaders saw the sidewalk as a park improvement, preventing a muddy walk through the grass on the way to the off-leash dog park. Oregon City Public Works Director John Lewis also testified that the developer's construction of a paved path would provide a recreational benefit to park users.
The Abrahams are represented by Jesse Buss, an Oregon City attorney who also represents the McLoughlin Neighborhood Association in the ongoing Waterboard Park case, which involves the Oregon City's proposed expansion of a public-works facility into an area that the neighbors have long seen as parkland.
According to Buss, the two cases are related: "Both the Wesley Lynn Park case and the Waterboard Park case involve decisions by the City Commission to avoid a public vote on non-park uses of public parkland. Both lawsuits would have been unnecessary if the Commission simply decided to honor voters' decisions."
Circuit Court Judge Katherine Weber will be conducting a bench trial starting 9 a.m. Feb. 20 to determine whether the city can avoid a vote of citizens because the public-works expansion is in an area excluded from a written description in the 1970 charter amendment. Two longtime residents of the neighborhood will be testifying as part of the evidence that the city had dedicated the area as parkland. Maps approved by the City Commission since 1970 also show the area as part of Waterboard Park.
The city purchased the land for Wesley Lynn Park from the school district in 1998, when Oregon City Commissioner Brian Shaw remembers being on the Parks and Recreation Advisory Committee. Shaw said it had always been the city's intent to allow for greater access on the north end of the park site.
Commissioner Renate Mengelberg and the majority of fellow commissioners on Oct. 18 rejected the project opponents' assertions that a road is a "structure." The lone no vote on the commission, Oregon City Commissioner Frank O'Donnell wondered why there was no alternative approach that could remove this issue from the "current adversarial position." City officials said that roads aren't generally built offset from the intersection, but O'Donnell wondered if an offset road could still be built and be in compliance with the law.