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Save Our Village will take Wizer Block case to the state Supreme Court

Construction fencing already surrounds the site in downtown Lake Oswego where a 290,000-square-foot, mixed-use development is planned

REVIEW PHOTO: VERN UYETAKE - Safety fencing went up around the Wizer Block in downtown Lake Oswego over the Labor day weekend and abatement work is underway. Developer Patrick Kessis plans call for a mixed-use development on the site, with 207 apartments and about 36,000 square feet of retail space.Attorney Greg Hathaway planned to file a petition Wednesday for Supreme Court review of the Court of Appeals decision in Lake Oswego's Wizer Block case.

Hathaway said the petition would be filed on behalf of the group Save Our Village, which has long opposed plans by developer Patrick Kessi to build a 290,000-square-foot, mixed use development at the corner of A Avenue and First Street in Lake Oswego.

HATHAWAY"We will be requesting the (Oregon) Supreme Court to adopt a Rule of Law that requires LUBA to address all of the prongs of the deferential statute, ORS 197.829(1), before it ultimately decides to grant deference of a local government interpretation," Hathaway told The Review. "It is our position that LUBA did not address in its decision how the City's interpretation was 'consistent' with the City's underlying policy that new development on Block 137 be complementary and compatible with the existing developments on Blocks 136 and 138.

"It has been our position that the City's interpretation is 'inconsistent' with this policy," Hathaway added, "since it did not require the Evergreen Group to demonstrate how its much-larger-in-scale development was compatible with Lake View Village and the mixed use development on Block 136."

Representatives of Save Our Village directed all questions to Hathaway. Reached Tuesday night, Kessi expressed disappointment with his opponents’ decision and said he still believes “there is no meritorious basis for the Oregon Supreme Court to consider this appeal.”

“The Oregon Court of Appeals already found that there was such a complete absence of legal merit that they did not even think a written opinion was justified,” Kessi said. “Remember that petitioners cannot raise any arguments to the Supreme Court that were not raised to the Court of Appeals. The argument they raised previously was that LUBA had to draft more findings. The Court of Appeals resoundingly rejected that argument. Petitioners are now stuck with this singular argument that the Court found had absolutely no merit.”

Kessi said the odds of the Supreme Court even agreeing to take the case are slim.

“There is only a 6 percent rate of review on all cases appealed to the Supreme Court,” he said. “And they have never granted review of a land use Court of Appeals decision where a written opinion was absent.”

Lake Oswego Mayor Kent Studebaker exchoed Kessi's comments on Wednesday.

“Of course, they have every right to appeal and we certainly can’t deny them this," Studebaker said. "That said, I’m disappointed in their decision.  The merits of this particular appeal appear to be weak, and given the history of these sorts of cases, this will not be a good expenditure of money by any of the parties involved, including the city.”

Save Our Village is continuing the legal challenge without the support of the Evergreen Neighborhood Association, which had joined with the group earlier this year in taking the case to the Court of Appeals.

At a meeting of the neighborhood association's board last week, members conducted an unbinding “straw poll” about proceeding with a petition to the Supreme Court. No motions were made, no official votes were taken, but several members used the word “folly” and others said there was no real neighborhood support for moving forward.

The result of the straw poll was 6-4 against proceeding with the legal challenge. Asked on Monday whether the vote meant that the neighborhood association considered the legal challenge over, board member Gerry Good said, "Yes. After last week's meeting, that is true. However, it does not mean the neighborhood is in favor of the project."

The City of Lake Oswego and attorneys for Kessi will now have 14 days to file a response to the petition.

“We continue to be excited about moving forward with this project, which has long-term benefits for the Lake Oswego community as a whole,” the developer said.

Contact Gary M. Stein at 503-636-1281 ext. 102 or This email address is being protected from spambots. You need JavaScript enabled to view it..