LUBA sends water plant decision back to West Linn
City council will revisit procedural errors
In a final decision issued Monday, the Oregon Land Use Board of Appeals remanded the city of West Linns decision on the Lake Oswego-Tigard Water Partnership project.
As a result, the issue will move back to West Linn City Council, which must take on additional deliberations and procedures before the project can officially move forward.
"The LUBA opinion agreed with the council that there was substantial evidence that the LOT water projects met the needs of West Linn," City Manager Chris Jordan said in a press release. "The city is pleased with LUBA's decision and will address the procedural issues at an upcoming public hearing."
Jane Heisler, communications director for the water partnership, expressed similar feelings.
On all the issues of fact, LUBA sustained our points, Heisler said. They sent it back to West Linn to correct procedural items, but they didnt overturn anything so we thought that was good news.
The state board's alternative options for ruling included upholding the city councils original decision, overruling the decision, dismissing the case or transferring the appeal to circuit court.
The case's remand is the latest development in an ongoing fight between residents, West Linn and LOT.
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.
In response to the city councils February vote to approve the project, two separate LUBA petitions were filed in March one by STOP Tigard Oswego Project LLC and another by a separate group of five West Linn residents. Oral arguments were presented Oct. 3 during a hearing in Salem.
The petitioners documented a total of 10 alleged errors both procedural and judgmental made by the city in its approval of the project. LUBA sustained three of those assignments of error but denied or deferred the other seven.
In its first assignment of error, the board agreed that West Linn Mayor John Kovash had failed to adequately disclose the substance of ex parte communications during the decision process, and in turn the city failed to provide petitioners a meaningful opportunity to rebut the substance of those communications.
During a Jan. 28 city council meeting, 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 all seven associations opposed the project. He said he called the neighborhood associations in an attempt to confirm their stances.
Though Kovash disclosed those contacts and the record was reopened for another two weeks before the final vote, the petitioners said the mayor did not go far enough to amend the mistake namely, by answering 10 questions about the exact substance of the conversations he had with the neighborhood presidents.
Although the city asserted that Kovashs disclosures were sufficient, LUBA found the city did not provide residents with a meaningful opportunity for rebuttal. The board ordered that those 10 questions be answered during deliberations when the case goes back to the council.
Along similar lines, the petitioners had argued that Kovashs ex parte contacts were indicative of impartiality, thus resulting in a flawed process. LUBA chose to not weigh in directly on the charges of impartiality but ruled that the city had not properly responded to the impartiality challenges during the decision-making process.
The city effectively denied petitioners the ability to challenge the mayors impartiality during the proceedings, LUBA wrote, (and) prejudiced their substantial rights, regardless of whether the mayor would have been disqualified had the city acted on the challenge, and regardless of whether the mayors participation influenced other decision makers.
Per LUBA's order, the city council will vote on the impartiality challenge during the upcoming process and determine whether Kovash should participate or abstain from voting on the water partnership's proposal.
The mayor should step down from any further proceedings, STOP member Scott Gerber said. He should have done that to begin with, and he should do that now.
Finally, LUBA ordered that the city council revisit a West Linn Business Impact Report submitted by local economist Michael Wilkerson during the hearing process.
Water partnership officials contended Wilkerson was not properly credentialed to make conclusions about how the project would affect certain local businesses, and the city in turn did not take the report into account when making its final decision.
The appeals board disagreed with that course of action and called for a process that either addresses the report or directly explains why it need not be considered.
It may well be that the city council, had it expressly considered the report, would have found it discreditable or inapposite, LUBA wrote. But again, we do not know, because no findings address the report or the issue it raises.
On all other assignments of error which included charges that the city misinterpreted the community development code and did not cite substantial evidence regarding the financial and water-related benefits of the project LUBA sided with the city and required no further action from the council.
Moving forward, Jordan said, the city council will likely decide in the first two weeks of December when to schedule a new hearing on the water project. Accounting for a 20-day advance noticing requirement, the hearing likely won't take place until January.
According to Heisler, construction at the water plant site will continue at least through the 21-day appeal period following LUBA's ruling.
"The partnership is actively considering all of its options," Heisler said, "including an appeal of the LUBA decision."
The LUBA decision came just one week after the West Linn City Council approved four agreements related to the LOT projects, locking in a $5 million payment from Lake Oswego for construction rights and officially moving into a new intergovernmental agreement with Lake Oswego, Tigard and the South Fork Water Board that guarantees an emergency water supply in perpetuity.
The city council also recently settled on a lawsuit filed by STOP in the Clackamas County Circuit Court. The plaintiffs offered to dismiss the case so long as the city did not seek recovery of its legal fees.
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