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Opponents weigh appeal of LUBA's Wizer decision

City's interpretation of code was correct, board says, clearing the way for mixed-use project in downtown Lake Oswego


SUBMITTED PHOTO - Plans for downtown Lake Oswegos Wizer Block call for three four-story buildings at the corner of First Street and A Avenue, with 207 apartments and about 36,000 square feet of retail space.Opponents of redevelopment plans for downtown Lake Oswego’s Wizer Block said this week that they are evaluating their options after their appeal of a City Council decision to approve the project was rejected by the state Land Use Board of Appeals.

“We agree that the City Council’s interpretation of the Community Development Code easily qualifies as a plausible interpretation of the Community Development Code,” LUBA said in a decision posted to its website last Thursday, “and that petitioners’ proffered interpretation to the contrary is inconsistent with the Community Development Code text.”

City officials and representatives for developer Patrick Kessi and his Evergreen Group all told The Review they had been notified of the decision on April 15, a day before the official announcement.

“Working closely with the community and its elected officials, we collectively created the Wizer Block project,” Kessi said. “I look forward to being a part of an energetic and long-term viable downtown Lake Oswego.”

Kessi told The Review he is moving forward with the mixed-use development, which will include three four-story buildings, 207 apartments and about 36,000 square feet of retail space. Demolition of the existing Wizer building is tentatively scheduled to begin in September, Kessi said, followed by excavation for underground parking.

The entire $93 million development will take about 22 months to complete, with a tentative completion date of July 2017.

But representatives of his opponents — Save Our Village, the Evergreen Neighborhood Association and LO 138 LLC, which represents Lake View Village — said they are still deciding whether to take their case to the Oregon Court of Appeals. By law, they have 21 days from the date of the LUBA decision to file an appeal.

Attorney Greg Hathaway, who represented both LO 138 LLC and Save Our Village, said this week that if the groups do appeal, it would be a “three- to four-month” process. He did not mention the potential cost of an appeal, but said the decision instead rests on the merits of the case.

“When you appeal LUBA decisions to the Oregon Court of Appeals, you have to establish that there’s an issue in the decision LUBA has rendered that is unlawful,” he said. “We think there’s at least two or three.”

For example, Hathaway said LUBA agreed that “one of the most important policies the city has is to make sure that new development is in fact village scale.” But the city took an abstract approach in determining what “village scale” meant, he said, without making any kind of comparison with the buildings that surround it, including Lake View Village.

“The fundamental argument we made was the city’s code and policies are structured in such a way that they had to make that interpretation,” Hathaway said.

Hathaway also objected to what he viewed as LUBA’s disregard of the East End Redevelopment Plan. “LUBA never even mentioned it,” he said.

Hathaway argued before LUBA last month that the City Council was wrong when it voted in September to allow the 290,000-square-foot development at the corner of First Street and A Avenue. The city’s Development Review Commission had rejected the proposal in August.

Attorneys for the petitioners told LUBA that the council’s decision was inconsistent with the “context, purpose and policy of the city to maintain village character”; that the council had declined to consider “village character,” instead approving alternative design standards to argue the proposed design was appropriate; and that the set of criteria the council had used would hypothetically allow them to even approve a big-box development on the site.

Hathaway argued that the council had undermined city code by viewing “village character” as “aspirational” and to be a general-purpose statement, rather than an essential criterion.

“One one hand, DRC applied the definition and denied (the proposal),” Hathaway said. “On the other hand, the City Council did not apply the definition directly, and they approved it. That contrast is very clear.”

But attorney Christe White, who represented Kessi and the Evergreen Group, defended the council’s decision to approve the project, arguing that the petitioners were asking the board to replace the city’s valid interpretation with their own preferred interpretation.

“The petitioner’s interpretation is not plausible at all,” she said. “They ask you to take on the term ‘small scale’ and use it to create an internal conflict within the code.”

Doing that could lead to “absurd results,” White said. “How could anyone ever know how to meet ‘village character’ if what they’ve done is comply with specific implementing standards, and then found that, somehow, another standard is inferred from the definition?”

LUBA largely agreed. In its 30-page decision, LUBA members Michael Holstun and Tod Bassham rejected all of the petitioners’ major objections.

“Petitioners take the city to task for sometimes referring to the ‘Definition of Village Character’ as a general-purpose statement,” the LUBA decision reads, “but that imprecision in language is not a basis for remand. The City Council simply refused to interpret the generally worded definition of ‘village character’ as a mandatory standard that required the city to compare the proposed development with the development on adjoining lots to determine if the proposed development qualifies in some abstract and comparative sense as ‘small-scale.’”

LUBA concluded that the city’s refusal to make that interpretation was “entirely consistent” with the Community Development Code.

LUBA also rejected the petitioners’ argument that width and length needed to be considered to ensure the proposed structures were of proper scale in relation to nearby development. And the board found the city was well within its rights to grant an exception that would allow ground-floor residential use on the Wizer Block.

“(The code’s) prohibition against ground-floor residential ... is not a fundamental purpose of the Urban Design Plan; it is a Community Development Code regulation.”

The full decision can be read at www.oregon.gov/LUBA/docs/Opinions/2015/04-15/14092.pdf.

Contact Saundra Sorenson at 503-636-1281 ext. 107 or ssorenson@lakeoswegoreview.com.

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