Planning commissioner involved in lawsuit against city loses his seat
(the review) As agenda items go, appointments to city boards and committees tend to be fairly routine.
But that wasn’t the case Tuesday night, when a divided City Council ratified Mayor Kent Studebaker’s decision not to reappoint Todd Prager to the Planning Commission.
Instead, Studebaker nominated Bill Gaar to a second term and appointed Robert Heape to a first term, ignoring the recommendations of the council’s nominating committee. No alternate member was appointed in a 3-2 vote that followed a passionate debate.
“I was sworn to represent the people and to support the citizens. I was not sworn to support the mayor,” Councilor Jon Gustafson said. “I respect (the mayor’s) right to appoint whoever he wants, for whatever reasons he wants. But that does not mean I cede what I think, in this case, is the best for the city and the Planning Commission.”
Typically, the council reappoints commission members who have a fair record of attendance and participation, and it’s nearly unheard of for the mayor to reject the council interview committee’s advice. But Gustafson gave an unexpected preview of the divisive debate last week with a fiery Facebook post in which he called Studebaker’s decision “payback” for legal action Prager has taken against the city.
In 2012, Prager and Portland attorney Mark Kramer sued the city in response to a local ordinance that restricted boat launching from city-owned access points at Sundeleaf Plaza, Lower Millennium Plaza Park and Headley Walkway. The Lake Oswego Corporation owns much of Oswego Lake’s rim, but as a navigable waterway, the lake is considered a public resource owned by all citizens under the state Public Trust Doctrine.
In January 2014, Clackamas County Circuit Court Judge Pro Tem Henry C. Breithaup ruled that because the state did not own the park property where the lake access points were located, the state’s authority to enforce public trust was limited. Prager and Kramer appealed the following month, and oral arguments were heard in Salem on Monday afternoon.
Prager, a certified arborist, community planner and urban forestry consultant, told The Review he wasn’t “too surprised” by the mayor’s decision.
“There has been retribution against me and my family since (the lawsuit) started,” Prager said. He declined to provide specifics, but other community members said Prager isn’t alone.
Gerry Good, a Lake Oswego resident who serves on the city’s Citizen Budget Committee, said he’s noticed a decline in correspondence from elected officials since he began working on an appeal of the city’s Wizer Block decision.
“Let’s be blunt,” Good said. “That is just not fair. If citizens have to fear retribution, how can we have a successful government and a pleasant community? We elect officials to uphold the law, not to mete out punishment on our citizens who happen to offend them. That is a tactic of societies that none of us like.
“I feel certain should I apply for appointment to a board or commission,” Good added, “I would not be selected.”
Studebaker has made no secret that his issue with Prager stems from the lawsuit. He made that absolutely clear to members of the nominating committee — which included Councilors Joe Buck and Jeff Gudman and Planning Commission Vice-Chair Ed Brockman — before the interview process, repeated his reasons in an email to the full council on May 14 and confirmed them with The Review this week.
“Basically,” the mayor said, “I don’t think Todd has the best interest of Lake Oswego at heart. If he were to prevail in this lawsuit, it would reduce the value of the homes in Lake Oswego, particularly along the lake,” resulting in lost property tax revenue for the city and reduced funding for city and school programs.
He said the lawsuit already has cost the city and the Lake Oswego Corporation “in excess of $1 million” in legal fees, and said losing the case would raise costly safety issues on the lake.
“The city has neither the staff nor the expertise to monitor the access and use of the lake by the general public,” he said. “For Todd to push this kind of thing, which forces the city to violate its policy — we’d have to get more staff, more liability insurance.”
Prager disagreed.
“Those arguments fly in the face of the legal arguments (the city) has been making in court, which is really what’s frustrating,” he said. “We’re not having an honest discussion about the real issues, because if they were to really discuss why they want to prevent public access — because they’re interested in protecting the monopoly (on the lake) that exists today — they know that they would lose.”
But Studebaker said he would be “remiss” if he overlooked the suit and reappointed Prager.
“I think there are too many consequences from his actions,” Studebaker said. “I believe these are ample reasons to decide not to nominate Mr. Prager.”
That did not sit well with some members of the council.
“It’s payback time!” Gustafson wrote on Facebook in a post accompanied by a stock photo of a man with steam coming out of his ears. “Apparently, we in Lake Oswego are not free to advocate for differing points of view without fear of punishment and retaliation. What’s next!? No member of the Lake Oswego Preservation Society will be allowed to volunteer for the city because they sued over the potential demolition of the Carman House? This is crazy!”
Buck expressed similar frustrations, saying Studebaker’s decision could potentially limit community involvement and deter citizens from “exercising their constitutional rights to express an opinion” out of fear of reprisal.
“Boards are supposed to be made up of a broad spectrum of the community,” Buck said.
Planning Commissioner Adrianne Brockman echoed the councilors’ concerns.
“While this matter is a public issue of huge proportions, it is unrelated to (Prager’s) qualifications to sit on the Planning Commission,” she wrote in a letter to the council last week. “It is unrelated to the agenda of the Planning Commission.”
Brockman gave Prager high marks as a commissioner.
“He does his homework for the Planning Commission meetings, he has an excellent attendance record and his participation is in the community’s interest, not the advocacy of a special interest,” she emphasized. “He is very much respected by the other members of the Commission and by the public, which participates in planning matters.”
Gustafson and Buck agreed.
“I served with Todd when I was on the Planning Commission,” Gustafson told The Review. “I know his qualifications, and they’re outstanding. If you went into a laboratory, you couldn’t create a more perfect planning commissioner.”
Prager is a certified planner and arborist, Buck pointed out, making him “the only member of (the Planning Commission) with any kind of environmental science background.”
Prager and Gaar were recommended for reappointment by the interview committee; Heape was recommended as an alternate. (In his position on the council, Gudman is responsible for interviewing potential appointees for all city boards and commissions. Buck is the council liaison; Ed Brockman is vice chair of the planning commission.) Studebaker appointed Gaar and Heape to full terms and forwarded their names to the council for approval; no alternate was appointed.
The Planning Commission operates as a citizen advisory body that reviews neighborhood and city planning, amendments to the Comprehensive Plan and ordinance implementation, as well as land use policy issues. Members of the Planning Commission also serve on the Commission for Citizen Involvement, which aims to enhance community input.
That role all but demands a diversity of voices, Adrienne Brockman said in her letter to the council.
“I am speaking out,” she wrote, “because I want to live in a community where people are not barred from participating in city matters for taking an unpopular position on unrelated matters.”
