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West Linn council corrects missteps in water plant project

Members of council accused of bias, staging meeting


by: TIDINGS FILE PHOTO: VERN UYETAKE - Construction at the Lake Oswego Water Treatment Plant site continues as planned after the West Linn City Council approved the project in a LUBA-mandated re-vote Wednesday morning.The Lake Oswego-Tigard Water Partnership project will proceed as planned after the West Linn City Council voted unanimously to approve it for a second time during a remand hearing mandated by the Oregon Land Use Board of Appeals.

The final vote took place Jan. 13, two days after a contentious public hearing that saw residents rail against a process they deemed unfair and “staged.”

The hearing centered around three procedural errors before the original vote in February 2013, as determined by LUBA, regarding Mayor John Kovash’s disclosure of ex parte contacts and the council’s response to a report filed by market analysist Michael Wilkerson.

During a city council meeting in January 2013, after the public hearing on LOT had been closed, Kovash reported that he had spoken to a number of neighborhood association presidents after being told that associations opposed the project. He called the neighborhood associations in an attempt to confirm their stances. Kovash failed to disclose that communication earlier.

As a result, the record was re-opened for two weeks before the final vote. LUBA ruled that Kovash had not adequately responded to public inquiries about both the nature of the contacts and his impartiality.

Wilkerson’s report, meanwhile, claims that construction would have an adverse impact on local businesses. In its final ruling, LUBA said the city had not provided sufficent response to the report and called for a process that either addressed the report or directly explained why it was not considered.

Lake Oswego has operated a water treatment plant at 4260 Kenthorpe Way since 1968. In cooperation with the city of Tigard, Lake Oswego is now expanding the plant and running a new pipeline to address the future water needs of both cities.

The plant, which will hold up to 2 million stored gallons of water underground and handle up to 38 million gallons each day, also serves as an emergency backup water supply for West Linn.

Along with a new plant, the project involves the installation of a 4-foot-diameter pipeline from the Clackamas River through West Linn and into Lake Oswego. The pipeline, which will be broken into four construction phases, will extend 1.9 miles in West Linn, crossing though both residential and commercial areas.

The city council voted unanimously to approve the project on Feb. 18, 2013.

Though LUBA did not find error in the substance of the decision to approve the water treatment plant project, the board ruled that the project could not continue without the council revisiting its procedural mistakes.

At the meeting’s onset Monday, Kovash recused himself from the remand vote, which eliminated the need to consider his ex parte contacts and questions regarding his impartiality as part of the decision-making process.

“My responsibility is to do what I can to give the city the opportunity to conclude this matter and address the remand issues in a way that decreases the chance of further appeals,” Kovash said. “If I do not participate in the decision, our attorneys have advised me that the bias challenge and ex parte contacts are no longer relevant.”

In turn, following advice from city attorney Chris Crean, the council adopted findings that Kovash’s communications were no longer ex parte contacts because of his recusal and that public testimony on the matter would be rejected.

With the mayor’s vote off the table, some residents still challenged the impartiality of the three remaining councilors set to vote: Council President Mike Jones and Councilors Jody Carson and Jenni Tan.

Councilor Thomas Frank also recused himself from the vote, as he was a member of the planning commission when it voted on the project in 2012.

Two residents — Alice Richmond and Mike Monical — issued specific challenges regarding Carson’s impartiality, claiming that her role on the Regional Water Providers Consortium represented a conflict of interest.

“She’s forgotten that her constituency is not Lake Oswego or Tigard,” Monical said. “It’s the citizens of West Linn who deserve protection from the regional interests that she now represents.”

Carson disagreed with that assessment.

“I don’t believe any of my being a member of that body provides any bias,” Carson said. “We talk about emergency water, but not who does what and how.”

Other residents said the council as a whole was biased heading into the remand hearing.

“I don’t think any of you can make a fair decision,” resident Scott Gerber said during his testimony. “We’ve been through a year of this, and you already made a decision. For anyone to think you could not be biased, it’s impossible.”

“(Mayor Kovash) can recuse himself all he wants,” another resident, Karie Oakes, said. Oakes, who is one of four residents who have filed to recall the mayor and Carson, Tan and Jones, went on to question the impartiality of each councilor dating back to when the applications were submitted in 2012.

In response, each of the three councilors stated that they did not carry any bias or conflict of interest. In three separate votes, the impartiality challenges were disqualified.

Aside from the mayor’s ex parte contacts, LUBA also required that the council acknowledge Wilkerson’s economic report. The council voted unanimously to adopt staff findings that the report did not provide enough evidence that businesses would be severely impacted by the pipeline construction.

The findings also concluded that Wilkerson’s testimony was not as reliable as that of licensed traffic engineers and construction management experts consulted by city council before the final vote.

When the public hearing was closed, some residents were vocal about their desire to provide further testimony regarding Kovash’s impartiality. The mayor’s recusal and the council’s subsequent findings precluded that testimony.

“I feel like (the hearing) was staged,” Gerber said. “It shut out the public voice. It’s disappointing, but I’m not surprised at all.”

With the remand process complete, construction at the LOT site will continue as planned. Construction crews have permission to work from 7 a.m. to 7 p.m. Monday through Saturday.

Patrick Malee can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. and 503-636-1281, ext. 106. Follow him on Twitter, @pmalee_wl.



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