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Appeals Court hears oral arguments on Lake Oswego's Wizer Block project

Opponents argue that the Land Use Board of Appeals ignored key provisions of state law


REVIEW PHOTO - Developer Patrick Kessi hopes to replace the 1950s-era shopping center at First Street and A Avenue in Lake Oswego with a 290,000-square-foot mixed-use development. Attorneys for the Evergreen Neighborhood Association and Save Our Village asked the Oregon Court of Appeals on Wednesday to stop developers from building a 290,000-square-foot development on downtown Lake Oswego’s Wizer Block.

Greg Hathaway and Daniel Kearns argued that the state Land Use Board of Appeals had disregarded key elements of state law when it affirmed a City Council decision to approve the $93 million project.

“We’re saying there is an incomplete decision in this case,” Hathaway told Judges Rick Haselton, Erika Hadlock and David Schuman.

Developer Patrick Kessi hopes to break ground as soon as next month on the mixed-use project at the corner of First Street and A Avenue. It would include 207 residential units and as much as 36,000 square feet of retail space. He told The Review last week that “everything is moving forward as planned, including the financing, which is all on schedule.”

But opponents of the development appealed LUBA’s April decision and told the court on Wednesday that the board had ignored provisions of state law that outline how LUBA is supposed to analyze a local government’s interpretation of its own Comprehensive Plan and land use regulations.

Specifically, Hathaway said, LUBA ignored the second and third prongs — or elements — of the evaluation process, which address the purpose of the Comprehensive Plan and its underlying policies.

The judges challenged that assertion, questioning whether LUBA was actually required to explicitly address each of the three “prongs.”

“What in any published law requires (LUBA) to explicitly address (prongs) B and C if they have necessarily, implicitly, found that B and C have been satisfied?” Haselton asked Hathaway.

Hathaway argued that the construction of the statute repeatedly included the term “or,” which indicated more than one evaluation must take place.

“I haven’t seen an argument in the appellant’s case saying why your clients could possibly win under B and C,” Haselton later argued.

Attorney Christe White, who represented Kessi and the Evergreen Group, opened her oral argument by emphasizing what she characterized as the petitioners’ over-dependence on the term “village character” as criteria for approval of the Wizer Block project.

“LUBA just found summarily that that argument had no merit,” White said.

“LUBA’s obligation is to determine whether or not the city’s interpretation is plausible,” she added. “The city looked at the text and the context of that standard, and found the definition of ‘village character’ is a broadly worded definition.”

White later told the court that LUBA was right when it “affirmed the city’s interpretation (of code) and concluded that the broadly worded definition of ‘village character’ was just that — it had broad terms.”

Instead, White argued, the city implemented the “village character” concept through more than 30 design and aesthetic standards.

“If you look to the definition of ‘village character’ (in the code), it talks about building a community of small-scale structures,” White said. “Nowhere in the definition of ‘village character’ does it mention building length and width or compatibility with adjacent blocks.

“There is a jump being made here, that you fish in the document for a policy you like and then decide that is the policy that underpins developmental regulations,” White said.

After the half-hour hearing adjourned, Hathaway told The Review his clients were undecided about how far to take the appeals process in the event their argument is rejected. But he was optimistic that the appeal would affect change.

“I believe that this court is going to render some new law, with regard to what LUBA’s obligation is to actually render decisions on all the prongs, rather than the deferential statute,” Hathaway said. “Because there isn’t any law specifically on point that reaches that conclusion, and that’s really the argument we’re making here: LUBA has an obligation to in fact rule on the underlying policy issue.”

If the court rules against his clients, Hathaway said, “then we would have to consider the possibility of taking it to the Supreme Court, just because it would be of precedential value, and it would still hopefully support our conclusion that this project shouldn’t be approved.”

The judges have 90 days to issue their decision, although they can extend that deadline at their discretion.

Contact Saundra Sorenson at 503-636-1281 ext. 107 or This email address is being protected from spambots. You need JavaScript enabled to view it..