Panel backs off idea to open up lake
by: submitted Oswego Lake

The Lake Oswego Planning Commission on Monday backed off a proposal to encourage public access at Oswego Lake.

Commission chairman Jon Gustafson said public input has overwhelmingly favored keeping the 'status quo' with policies related to the lake, as has the city council. As a result, instead of calling for 'low-impact recreational access' like swimming and canoeing at all public waterfront properties, the recommended comprehensive plan aims to enhance those sorts of activities on only the Willamette and Tualatin rivers.

In addition, the city will 'cooperate with the Lake Oswego Corporation to protect the aesthetic and recreational qualities of Oswego Lake,' the updated policy reads.

'While Oswego Lake is important, it's not the only water resource we have,' Gustafson said.

The meeting was standing room only as about 200 people packed council chambers at city hall - a crowd bigger than the showing at a controversial city council streetcar hearing last year.

More than 100 people signed up to talk, and at least 50 testified before the commission. All but a handful opposed a draft policy advocating public lake access.

The commission also received written input from hundreds of people - including 700 who used a form letter - with a majority protesting public access. They did so for a variety of reasons, commissioners said, including concerns about the potential for lower property values, which would impact the whole city's property tax revenues; litigation; increased crime; traffic and parking problems; declining water quality; overcrowding; loss of prestige; and exclusivity.

Commissioners heard those same themes in public testimony Monday night.

Today, although city residents can use a seasonal public swim park, and many have access to another swim park operated by the school district, only those who own lakefront property or have deeded easements to private park areas, docks and beaches can use the broader lake, controlled by the private Lake Oswego Corporation.

About 690 lakeside property owners are active shareholders in the corporation. Another 11,000 to 12,000 have access to the lake through deeded easements. Together, those stakeholders pay dues and fees to support management and maintenance of the lake, an annual cost of about $2 million.

The 415-acre lake, long considered private, sits in the heart of the city.

Rose Deggendorf, an attorney who lives on Alder Circle, said, 'I do think there has been stewardship for a long time and rights established along with that stewardship for a long time.'

She said if the city advanced a policy for open access on the lake, she would 'dedicate all of my pro bono time and urge every lawyer in this room to donate their pro bono time to fight against a taking without just compensation.'

Deggendorf also worried about what type of people might visit the lake if they felt they could.

'Public means public,' she said. 'It doesn't mean 'Lake Oswego public.' It means when the guy from Arkansas comes up and wants to have a kegger on the water … when accidents happen … that will be on the city's watch.'

Scott Mayer, who also lives on Alder Circle, questioned what loss could result from keeping the lake's private status.

'What great loss is there?' he asked. 'Is someone from Clackamas not going to get to go kayaking? Is someone from Hillsboro not going to get to bring his family in to swim in the lake? Is that a great loss to this community?'

Katy Barman, who lives on Oak Terrace, said the lake is already packed on warm summer days.

'It is very, very busy,' she said. 'If you want to go boating, especially on the weekends, you need to go early in the morning or late in the evening.'

Her husband, Lake Oswego School Board member Bob Barman, said the lake's private, controlled conditions are essential for maintaining order and safety on the water, especially when motorized and nonmotorized boaters have to coexist.

'We have no control if a kayaker comes into Lakewood Bay from Gresham, and my children come in and don't see the kayaker at a certain time of night and go right over them,' he said. 'Who's going to sit out there every second and tell people … the rules of the road?'

LOSD board Chairman John Wendland said the school district relies on property tax revenues for its local option levy, which pays for 10 percent of the district's operating budget. In addition, he said public access could threaten safety of patrons at the Lake Grove Swim Park, an outdoor facility operated by the school district.

'We currently have controlled conditions by keeping Oswego Lake private,' he said.

School district superintendent Bill Korach said the success of schools and the vitality of the lake are closely linked.

'When it comes to the quality of a community, the best things in life are not free,' he said. 'Relationships, vitality, sustainability - you have to work at all of them. We must not take for granted the significance of the lake as an outstanding feature of our community. We must not minimize what it takes to maintain the quality, safety and value of the lake.'

Two Realtors told commissioners the prospect of public lake access appeared to be a deal breaker with potential sales on multiple occasions in recent weeks.

At the meeting, the Lake Corporation offered its own proposal related to lake access, calling for 'supporting and strengthening current limitations on access.'

But Kimberly White, a second-year law student and volunteer at the Northwest Environmental Defense Center who lives on Jefferson Parkway, urged planning commissioners to not 'let threats scare you from complying with state law.'

'The city of Lake Oswego is obligated under current law to grant public access to Oswego Lake,' she said. 'Public access to all waterbodies is mandated by state law regardless of whether the lake is privately owned. This is current state law; it's not a theory or an academic exercise.'

Michael Blumm, a law professor who lives on Silver Court, recently wrote an article in the Journal of Environment Law that led him to investigate lake access issues under Oregon law.

'Neither the Lake Corp. nor its members have any property rights to exclude members of the public from Oswego Lake,' he said. 'The lake is a publicly owned resource.'

He said lakebed ownership is irrelevant in terms of whether the public has rights, and congressional declarations that federal statutes don't apply aren't relevant either. He said the fact that the dam controls lake levels doesn't mean it's a private lake: 'There are many dam-created reservoirs in Oregon that have public access rights.'

'What we're talking about is a state rule, public trust doctrine.'

According to Blumm, the state has 'sufficient authority to regulate access and could, for example, limit access to nonmotorized boats. Every other lake of its size in the state has similar regulation, and there's no support in Oregon law for restricting the public's physical access to a small part of the lake for some people at some times and for some purposes.

'The public owns the water, and it has done so at least since 1909,' he said. 'The public has access rights that are now being monopolized by the Lake Corporation and its members.'

Planning commissioner Todd Prager, who requested the city consider lake access as a possible recreation goal, said he doesn't support 'unfettered access.' But he believes allowing for some low-impact uses could provide a new city revenue source that could be reinvested in the lake.

'I really believe that enhanced access to Oswego Lake has the potential to build communitywide stewardship in the lake,' he said. 'I think it can also meet our vision for strengthening the social fabric of this community.'

He said the city invests a million dollars each year to ensure runoff flowing into the lake from the surrounding watershed is clean, and the city places regulations on streams that feed into the lake.

'The Lake Corporation and its members are already great stewards of the lake, but I think it needs to be recognized that the city, through its taxpayers, is solely responsible for meeting clean water requirements.'

In addition, Prager said, city taxpayer dollars have purchased and maintained multiple lakefront properties, 'yet access from these properties is limited, and in some cases prohibited, by our own local government. City residents should have the option to pay for enhanced access at public properties similar to private easements.'

Commissioner Jim Johnson suggested the recreation policy call for access to 'public waterbodies' instead of calling out specific locations for public use.

'Provide public access where it's available, and let's quit calling out places,' he said, noting he's more concerned about the lack of zoning on the lake.

'It feels too wide open to me to state that and not attach some specific locations,' commissioner Julia Glisson said. If the lake were deemed public, she added, an environmental impact analysis would likely be needed. 'I'm worried about this seemingly simple policy being fodder for continued debate and antagonism.'

But without zoning, there's no way to require a review for big changes on the lake, Johnson said.

After more than four hours of testimony and discussion, the commission tentatively agreed on a policy calling for the city to continue offering swimming access to the lake only at the city swim park and by cooperating with the school district's swim park.

The commission will likely approve the policy March 12 along with the rest of the 'community culture' section of the city's comprehensive plan, advancing it to the city council for review.

The majority of the council has already informally stated its preference for keeping the 'status quo' with lake access.

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