State board expected to decide by April 9 whether City Council’s approval of mixed-use project was appropriate
(the review) A lecture hall at the University of Oregon’s Knight Law Center provided a unique setting last week for the latest chapter in the controversy over redevelopment of the Wizer Block in downtown Lake Oswego.
Land Use Board of Appeals hearings typically are held in Salem. But twice a year, the board hears oral arguments in front of law school classes, and so 16 students watched as three groups opposed to the proposed mixed-use development squared off March 18 with lawyers for the developer and the City of Lake Oswego.
The hearing lasted only an hour, with each side given 30 minutes to make its case. No new evidence was allowed. Board members Michael Holstun and Tod Bassham asked pointed questions of both sides — board chairwoman Melissa Ryan did not attend the hearing — and then joined the lawyers for a short question-and-answer session with the law students.
Save Our Village, the Evergreen Neighborhood Association and LO 138 LLC, which represents Lake View Village, argued that the City Council was wrong when it voted in September to allow a 290,000-square-foot development at the corner of First Street and A Avenue. The city’s Development Review Commission had rejected the proposal in August.
Attorneys for the petitioners said the council’s decision was inconsistent with the “context, purpose and policy of the city to maintain village character”; that the council had declined to consider “village character,” instead approving alternative design standards to argue the proposed design was appropriate; and that the set of criteria the council had used would hypothetically allow them to even approve a big-box development on the site.
Attorney Greg Hathaway, who represented both LO 138 LLC and Save Our Village, called the issue an “inaccurate findings case.” He argued the council had undermined city code by viewing “village character” as “aspirational” and to be a general-purpose statement, rather than an essential criterion.
“One one hand, DRC applied the definition and denied (the proposal),” Hathaway said. “On the other hand, the City Council did not apply the definition directly, and they approved it. That contrast is very clear.”
Attorney Daniel Kearns, who was hired by the Evergreen Neighborhood Association, supported Hathaway’s argument.
“There’s nothing in this code that says you can ignore the subjective language of what ‘village character’ is and just focus on design criteria,” Kearns said. “This code is not structured that way.”
Attorney Christe White, who represented developer Patrick Kessi’s Evergreen Group, also agreed with one of Hathaway’s assertions.
“The city did find the definition reads like a vision-like statement,” White said. “It has vague and broad terms.”
But White defended the council’s decision to approve the project, arguing that the petitioners were asking the board to replace the city’s valid interpretation with their own preferred interpretation.
“The petitioner’s interpretation is not plausible at all,” she said. “They ask you to take on the term ‘small scale’ and use it to create an internal conflict within the code.”
Doing that could lead to “absurd results,” White said. “How could anyone ever know how to meet ‘village character’ if what they’ve done is comply with specific implementing standards, and then found that, somehow, another standard is inferred from the definition?”
White called it “a little bit ironic” that Block 138, the downtown site of Lake View Village, was being used by the petitioners as a standard for compatibility.
“(Block) 138 required an exception to height” during development, White said. “Block 138 also asked for an exception to the Lake Oswego design standards so that they could go with a French Provincial style, instead of a Lake Oswego style. They asked for 11 exceptions, which were granted. It’s important to note we’re not asking for any exceptions to (city code regarding) scale.
“The petitioners’ complaint is that they would like to regulate size and scale through another standard,” White concluded. “That is a legislative choice.”
When board members pointed out that the code does not require comparison to surrounding buildings to establish scale, Hathaway said such a standard was implied.
“The East End Redevelopment Plan specifically says that any new development on Block 137 has to be complementary to the development on 138 and 136,” Hathaway said. “Those policies require that there be this comparison.”
But White said the city had made the right call in measuring scale through height, density and the number of stories in the building.
“The city made a legislative choice,” White said. “It regulated commercial and residential uses by imposing a mixed-use overlay on this property that allows either residential or commercial or a mix of both of them, in no prescribed ratio.
“What the petitioners’ argument really is,” White added, “is that they don’t feel that the code went far enough.”
LUBA is charged with reviewing cases that concern final rulings on urban design review decisions, as well as issues involving comprehensive plan provisions. The governor-appointed, three-member board is known for being more technical in its reviews than municipal-level boards or agencies.
After the hearing, students asked LUBA board members about their own professional backgrounds, as well as the number of cases that come before LUBA with pro se petitioners. Holstun said that in about 30 percent of LUBA hearings, the petitioner represents himself.
Kearns praised LUBA as being accessible to those without formal legal training, and he and White agreed that it was in the public’s best interest to have the option to appear before LUBA without hiring an attorney.
Neither side objected to LUBA’s request for an extension on issuing a final opinion. That ruling now is expected by April 9.
Should LUBA decide in favor of the Evergreen Group, opponents could take their case to the Oregon Court of Appeals. In the meantime, Kessi told The Review last week, he is moving forward with the project and hopes to break ground later this year.
