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Council denies development proposal at Upper Midhill Drive

Safety concerns paramount in final vote

SUBMITTED PHOTO - The City Council ultimately upheld the Planning Commission's denial of a proposal to put a 34-lot development on this 6-acre plot. At least for the time being, there will be no new subdivision at 18000 Upper Midhill Drive.

The West Linn City Council voted 4-1 Monday, Aug. 15, to deny the applicant’s appeal and uphold the Planning Commission’s original decision to prohibit the 34-lot subdivision that is also known as the Chene Blanc Subdivision. Ultimately, the Council found that the surrounding infrastructure in the area simply wasn’t suitable to absorb such a substantial development — thus creating a safety issue.

“Unfortunately, this is just one of those square peg, round hole things that needs rethinking,” Mayor Russ Axelrod said shortly before the final vote.

While technically a West Linn address, the site is a 6-acre plot that also sits on the border of Lake Oswego near Marylhurst University. If developed as proposed, the property would have contained single-family homes on lots ranging from 4,615 to 11,705 square feet — the majority being at least 6,000 square feet.

The project was denied at the West Linn Planning Commission by way of a 3-3 tie vote in May, and it originally came before the City Council on appeal at a July 25 meeting. Though the Council heard testimony from both the project developers — Upper Midhill Estates, LLC — and a number of residents who opposed the project, it ultimately opted to reopen the record to allow for the inclusion of a May 4 letter sent on behalf of Upper Midhill Estates. The public hearing was then extended to Aug. 15 to allow for responses to said letter.

The letter, written May 4 by Andrew Tull of 3J Consulting, Inc., addressed the two issues that would be at the center of the appeal: double frontage lots and the adequacy of public facilities in the vicinity of the development lot. With respect to facilities, Tull noted that the applicant was amenable to several new conditions of approval, including the installation of new sidewalks in some areas as well as a bus stop.

At the Planning Commission hearings in April, residents had expressed concerns with infrastructure, traffic, density and preservation, noting in particular that several intersections near the proposed development were known danger spots. The applicants said the proposal was sound and would actually result in the minimum amount of homes allowed under the property’s R-4.5 zoning.

In the end, the Council expressed appreciation for the applicant’s additional proposals, but it could not set aside the issue of timing. Several councilors noted that the development would likely be in place before traffic and safety improvements could be made — particularly because Highway 43 is owned and maintained by the Oregon Department of Transportation — and thus there would be safety issues to deal with in that interim period, with an influx of new travelers without the proper infrastructure to handle them.

“It’s clear we’re adding to the volume, and so we are actually make it worse by that standard,” City Councilor Bob Martin said. “And given that criteria, not only do I believe we can’t go ahead with it, but I also think it can’t be corrected by a condition of approval. … I’m very hesitant to take any action that’s going to further endanger citizens of West Linn.”

City Councilor Thomas Frank, who ultimately cast the sole “no” vote in the Council’s decision to uphold the Planning Commission’s denial, said that the proposed development actually provided an opportunity for the City to make the area safer for drivers and pedestrians.

“I think we have an opportunity before us of putting in sidewalks and maybe in concert having the City do the road improvements that they need to do to make this safe,” Frank said. “There’s no other way this is going to get done, in my view.”

He later added that the City would have to pay for all of these improvements in the absence of a developer like Upper Midhill Estates, which offered to pay for a portion of the projects.

“If we’re going to bring the neighborhood up, it’s going to be on the City’s dime to do that, whether we use (Systems Development Charges), water funds, park fees — we need to use the City’s funds to do so,” Frank said. “I think it would be disingenuous, in a way, to walk away and put it all on the City to do improvements, and have an applicant come in some other time and not do improvements.”

Yet, again, the issue of timing came into play.

“We have to have these in place before anything comes in,” City Councilor Brenda Perry said. "These are measures I see as band-aids, and not real solutions … we have the opportunity for real solutions, and then to do development there.”

Martin, for his part, did express concern about the fact that a denial meant the applicant would technically have to wait a full year before returning with another application. He floated the idea of suspending the 120-day rule — an Oregon law that requires a land use decision be made within 120 days after the application is completed – to allow for the applicant to make further changes and perhaps even work with ODOT to find a better solution for traffic problems.

Yet, Martin and the rest of the Council would later determine that their concerns were too broad to be addressed even with an extension of the 120-day deadline. Subsequently, Perry asked if the one-year moratorium on a new application could be suspended as an olive branch to the applicants. City Attorney Tim Ramis said that if a hypothetical new application is “substantially different in some key area,” it would be possible for the Council to review it before a year has passed.

“It’s cleaner right now to deny and be open to hearing a new application in the not-so-distant future,” Perry said.

The Council’s findings will be finalized in September. At that point, Upper Midhill Estates may also file an appeal to the Land Use Board of Appeals (LUBA), should it choose to do so.

Patrick Malee can be reached at 503-636-1281 Ext. 106 or This email address is being protected from spambots. You need JavaScript enabled to view it..