Arguments center on ex parte contacts, water resource area disturbance

by: VERN UYETAKE - Construction of the Lake Oswego-Tigard Water Partnership water treatment plant has begun, but LUBA is still reviewing three cases filed against the city of West Linn. The ongoing battle between residents, West Linn and the Lake Oswego-Tigard Water Partnership is continuing.

Legal representatives from STOP Tigard Oswego Project LLC , the city of West Linn and LOT met Oct. 3 in Salem for a hearing in front of the Oregon Land Use Board of Appeals.

The hearing featured oral arguments for all three of the appeal cases filed by petitioners alleging procedural and substantive errors in West Linn’s process of approving both the expansion of LOT’s water treatment plant and the construction of a new pipeline. Petitions 2013-021 and 2013-022 were filed by STOP, while petition 2013-023 was submitted by a separate group of five West Linn residents.

Lake Oswego has operated a water treatment plant at 4260 Kenthorpe Way since 1968. In cooperation with the city of Tigard, Lake Oswego is 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.

The petitioners and respondents were each given 30 minutes to present their oral arguments, followed by a rebuttal from each side.

Speaking first on behalf of STOP, Attorney Peggy Hennessy made the case that West Linn Mayor John Kovash tainted the approval process when he had ex parte contact with the president of “one or more” neighborhood associations.

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 that all seven associations opposed the project. He called the neighborhood associations in an attempt to confirm their stances.

Though Kovash disclosed those contacts and the record was re-opened for another two weeks before the final vote, Hennessy said the mayor did not go far enough to amend the mistake.

“The mayor failed or refused to disclose anything further,” Hennessy said. “West Linn denied it was a factor, but ex parte communications had an effect on the final decision.”

Hennessy went on to say that because Kovash refused to disclose exactly who he spoke with during the ex parte communications, his claims that two neighborhood association presidents were indifferent to the water infrastructure expansion could not be properly challenged.

“Who the mayor talked to is important,” Hennessy said, “because we need that to refute the information he obtained.”

In response, LUBA Board Chairman Michael Holstun asked why, given the disclosure that Kovash spoke directly to presidents, the petitioners couldn’t simply contact each president to rebut the mayor’s statement.

Andrew Stamp, another attorney for the petitioners, said that they only had one week to contact the 11 neighborhood association presidents and ran out of time.

Representing the city, Attorney Chris Crean said the mayor had disclosed “the substance” of his ex parte communications and therefore fulfilled his legal obligations.

“The substance of communication isn’t who talked to whom,” Crean said. “It’s who opposed (the project). The mayor didn’t want to just assume that seven neighborhood associations were opposed, so he called to check.

“Procedurally, the city complied with everything that was required. The ex parte contact was disclosed, and some of the public responded.”

Further, Crean argued, the ex parte contact had little to do with the city council’s final vote.

“Council was concerned about the level of neighborhood opposition, but that was not the only factor,” Crean said. “What’s the measure of neighborhood association opposition that dictates whether an application meets criteria? ... There is no metric. They were concerned, but that doesn’t make it an approval criteria.”

Procedural arguments aside, Hennessy asserted that Kovash displayed impartial judgment in favor of LOT.

“Our position is that he departed from his role as an impartial decision maker when he called neighborhood associations looking for support,” Hennessy said. “His mission was to disqualify evidence — and an impartial decision maker wouldn’t have sought that information and refused to disclose names.”

Crean replied that there simply was not enough evidence to support any claim of bias.

“LUBA does not lightly infer bias,” Crean said. “The evidence of bias has to be clear and unmistakable, and here you have a mayor disclosing ex parte contacts he thought were already in the record.”

Representation for the petitioners also called into question the validity of LOT’s water resource area permit for the 4-foot-diameter pipeline that will run from the Clackamas River through West Linn and into Lake Oswego.

“The finding that the pipeline is not permanently impacting the water resource area is inconsistent,” Stamp said. “If you put a 4-foot pipe through a rock, you’re going to affect the water purity.”

LOT Attorney Ed Sullivan responded that the water resource area permit for the project was already in hand, and there would be no permanent disturbance or requirement for mitigation of the pipeline’s effects.

On Sept. 25, a motion to take evidence regarding another claim of ex parte contact — this time on the part of Council President Mike Jones — was denied by LUBA. Board member Todd Bassham wrote that LUBA saw no evidence of ex parte contact in Jones’ case, and even if there was, “petitioners cannot obtain depositions ... to support new allegations of error that are not present in the petitions for review.”

LUBA has until Nov. 4 to make its final ruling. Its options include upholding the city council’s original decision, overruling the decision, remanding the decision back to the city council for further deliberation, dismissing the case or transferring the appeal to circuit court.

Patrick Malee can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. and 503-636-1281, ext. 106. Follow him on Twitter, @Pmalee_WL.

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