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Kessi appeal says rejection of Wizer Block plan based on legal, factual errors

Developer will make his case to the City Council at a hearing on Sept. 22


Photo Credit: REVIEW FILE PHOTO: VERN UYETAKE - Developer Patrick Kessi says his proposal for the Wizer Block includes the right mix of retail, office and residential uses.Developer Patrick Kessi will tell the City Council later this month that the Development Review Commission’s rejection of his plans for downtown Lake Oswego’s Wizer Block should be reversed because it was based on legal and factual errors and “an unprecedented application” of city code.

Kessi’s 14-page intent to appeal, which was filed with the city last week, claims the DRC was wrong when it used the phrase “small-scale structures” as an approval criteria and that commissioners erred in deciding that the project’s ground-floor residential spaces do not meet the criteria for a high-density “compact shopping district” in the city’s core.

The council is scheduled to hear the appeal Sept. 22.

Kessi will not be allowed to introduce new evidence or make any changes to his already redesigned proposal, which calls for a 290,000-square-foot, mixed-use development at the corner of A Avenue and First Street. The project would include 207 residential units and about 36,000 square feet of retail space.

Under Lake Oswego City code, Kessi can only refute the findings that led to the DRC’s 3-2 rejection, and his intent to appeal — filed at a cost of $4,903 — points out that the commission actually approved many elements of the proposal.

For example, the appeal says, the DRC found that all of the buildings proposed for the Wizer Block met city code height requirements and complied with “Lake Oswego style.” The commission also agreed that the project is well within the required density allowance; that proposed landscaping “enhances building design and defines the streets”; and that the project meets all of the approval criteria for street, alley, sidewalk and parking lot design.

But Kessi will argue that the DRC was wrong on two counts:

• Despite the fact that the design met specific approval criteria for “village character” as defined by city code, three members of the commission decided that the roof form of two proposed buildings along First Street did not satisfy one phrase within the definition: "small-scale-structures." But that, the appeal states, should not in itself be grounds for rejection.

"Three members of the DRC decided that the definition of village character in Section 4 of the (Downtown Redevelopment Design District) is not just a definition, but an approval criterion that itself should be incorporated into the approval standards," the appeal states. “DRC's denial on this ground … constitutes legal and factual error and should be reversed by the City Council."

The appeal called the DRC’s decision “an unprecedented application of the code.”

"In fact," the appeal argues, "as the record shows, in no other case has the city applied the term 'small-scale structure' to a project in the (Downtown Redevelopment Design District) as an approval criteria."

• The appeal also addresses a requested exception for residential use on the ground floor. The appeal acknowledges that city code allows only for ground-floor residential use on a portion of the property and that the proposal includes “a few other residential uses outside this area.” But the appeal says the redesigned proposal meets the “purpose of the Urban Design Plan” by trading that space for increased commercial uses in interior passageways.

In rejecting the proposal, the DRC ruled that Kessi had not done enough to meet the Urban Design Plan’s goal of creating a “compact shopping district” in the city’s downtown core. But Kessi will argue that his proposal does indeed deliver the mix of retail, office and residential uses encouraged by the Urban Design Plan and that the DRC erred by not considering all of the objectives of the plan.

He will also argue that the balance of uses on the Wizer Block ensures that the development will not overwhelm transportation systems now or when the remaining two blocks of the “compact shopping district” are eventually developed.

"Substantial evidence was submitted into the record demonstrating that the balance of uses on the site is consistent with the available transportation facilities and that adding even more retail or office would create excessive traffic trips that would negatively impact the system," the appeal says.

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

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