An advisory jury tasked with issuing opinions on the city of Lake Oswego’s rules preventing public access to Oswego Lake reached a mixed consensus Friday, April 19, finding that many of the city’s justifications for preventing lake access are unreasonable — including all at Millennium Plaza Park — but that a few are.
Asked to answer questions provided by the Clackamas County Circuit Court, the majority of the jury agreed that many of the justifications the city has used to maintain its existing rules are not reasonable. These include the risk of invasive species, water quality and cost. However, the majority of the jury felt that restrictions on city properties were a reasonable basis for preventing access at Sundaleaf Plaza and Headlee Walkway. Further, the majority felt that the design and construction of Headlee Walkway and Sundeleaf Plaza were justified reasons for barring access and that safety, property boundaries and the potential for litigation were justified reasons only at Sundaleaf. Significantly, the jury found that all reasons for restrictions at Millennium Plaza Park are unreasonable.
The jury reached these conclusions following a two-week trial that included testimony from land surveyors, water quality and archaeological experts, city of Lake Oswego and Lake Corporation employees, among others. Judge Kathie Steele will take the advisory jury’s input when making her decision in the case.
Lake Oswego resident Todd Prager and Portland resident Mark Kramer filed the lawsuit in 2012 after the city passed a resolution enshrining rules prohibiting lake access from Millennium Plaza Park, Sundeleaf Plaza and the Headlee Walkway. Those are the only three city facilities that sit next to the lake. Currently, lake access is mainly reserved to shareholders (residents who live along the lake) and easement-holders within the Lake Corporation.
The case was considered by the Oregon Court of Appeals and the Oregon Supreme Court, then remanded to Clackamas County Circuit Court for this two-part trial. In the first phase of the trial, the court determined that the waters of the lake are public. This phase assesses whether Lake Oswego’s rules preventing lake access from the three parks are objectively reasonable. Steele’s decision could maintain the status quo or force the city to implement changes to pave the way for lake access — which could be a major endeavor.
The city issued a statement following the jury's decisions.
"The City of Lake Oswego extends its gratitude to the advisory jury for their service in the Oswego Lake Access Trial. We understand the jury had to consider difficult questions and their mixed verdict reflects that. We appreciate the thoughtfulness and dedication they brought to their role in considering the facts and arguments. As a community, we value public input in shaping our decisions," the statement reads. "The City is committed to listening and upholding a diversity of perspectives in its decision-making processes."
The jury was asked eight questions, including whether property boundaries, the design and construction of parks, safety, public resources, water quality, invasive species and legal liability are reasonable bases for the city to deny public access to the lake. The verdict came following final arguments made by the city, Lake Corporation and plaintiffs.
Here were some of the elements the jury considered in its deliberations.
Possibility of city’s legal risks a focus of trial
The Lake Corporation made clear in its arguments and testimony that the city of Lake Oswego could face a lawsuit if it were to allow access to Oswego Lake from its parks.
This is because the Lake Corporation owns the land below the lake and the corporation posited based on testimony from a land surveyor that some of the city’s public property does not actually touch the lake, meaning that someone entering the waters would trespass a small amount of private property. They would also be trespassing when they touch the lake bed while in the water, the corporation asserts.
Further, the city is actually a shareholder within the Lake Corporation due to its park property (specifically Sundeleaf Plaza) and is therefore subject to deed restrictions that prevent lake access.
“The Lake Corporation is willing and able to go to court to protect what it considers to be its property interests,” said Paul Conable, who represented the city in the trial.
However, the plaintiffs’ lawyers disputed some of the claims about the park properties — particularly Millennium Plaza Park and Headlee Walkway. Attorney Nadia Dahab said neither of those properties have deed restrictions associated with them and that public parks reside next to the lake, which makes them amenable to public access.
Lake Corporation attorney Brad Daniels retorted that the reason the deed restrictions don’t exist is because those tax lots were created prior to the development of Lakewood Bay (which Lake Corporation predecessor Oregon & Iron Steel built for the purposes of residential development in the 1920s) but that Lake Corporation policy had always been to enforce restrictions on those parks properties.
“There is probably some legal uncertainty. What we do know is, at least since the 1940s, the Lake Corporation has affirmed this whole (legal) structure is applicable throughout Oswego Lake and Lakewood Bay and the intent has always been to restrict public access,” he said.
Some other parts of the properties, Daniels noted, aren’t owned by Lake Oswego but the city has easements allowing walkways and for park purposes. He expressed uncertainty about whether the easements would allow or prevent lake access from the parks, but noted that an easement right is more limited than ownership.
David Sugerman, a lawyer for the plaintiffs, said during closing statements that the purported power that the Lake Corporation holds over the city through the city’s status as a corporation shareholder and how it mirrors the corporation’s viewpoints on access is a “very dangerous thing.”
“The idea that a private corporation can control public water and literally control what a city does and doesn’t do is something that makes me nervous and that’s part of why we are in this case. That’s part of why we have been here trying this case to you for all these days and putting in all this work. It is about more than this one access point or three access points. There’s a lot at stake here,” Sugerman said.
Conable said the city is caught in the middle between the plaintiffs' focus on the waters of the lake being considered public and the Lake Corporation’s insistence about its private ownership of the lake bed. But he said the court didn’t need to resolve that complex entanglement — just whether the city was reasonable in implementing its rules preventing public access. And the Lake Corporation’s legal threat and assertion of ownership are reasonable considerations, according to Conable.
Safety, invasive species considerations
The city has provided a whole host of other justifications for disallowing lake access. Lake Oswego Police Department Captain Clayton Simon testified that the city doesn’t patrol the lake due to the private status of the lake bed land, while Daniels noted that the officers the Lake Corporation hires don’t have authority over the general public. The city also said that rocks, boulders, bushes, fencing and mitigation plants would either be dangerous or marked for removal to usher in lake access, contrary to state permits the city signed for the development of the parks. The city would need to construct significant infrastructure to make the area safe for all people, Conable said.
“When the city designs an access point, it can’t only consider the needs and abilities of Mr. Kramer (the plaintiff who testified that he could ably enter the waters to kayak) … the city has to consider children, people with disabilities, everyone who might want to use a park (amenity),” he said.
Further, unlike the Lake Corporation, the city does not have an invasive species program that could monitor and protect from the risk of such species entering the lake waters — nor the resources to enact such a program, according to Conable. And city staffers said the parks would have been designed much differently had public access been the intention.
“The evidence will become clear that the city's decision not to allow the general public to enter the water from Headlee Walkway, Millennium Plaza Park and Sundeleaf Plaza was not only a reasonable decision, but I would submit it was the only reasonable decision in the circumstances of this case,” Daniels said.
Sugerman noted the thousands of dollars the city has spent for other priorities like public art and said the city’s decision not to spend money on lake access was a choice, not a requirement. And he noted that the city hadn’t identified a precise estimate for how much a lake access project would cost.
Further, the plaintiffs’ lawyers questioned their opponents’ framing about some of the issues that broad lake access would cause, saying that such issues like invasive species, water quality and safety are already relevant for shareholders within the Lake Corporation. And they framed the issue similarly in terms of traffic and parking challenges when the city hosts concerts with thousands in attendance during the summer at Millennium Plaza Park.
“What is unreasonable to say, what the city and Lake Corporation say here, is that it’s safe for the Lake Corporation users to use the lake but it’s not safe for the public,” Dahab said.
Dahab also emphasized that the city’s plans, or lack thereof, for lake access were for decades based on the false premise that the lake’s waters were private.
”The assumption the city previously made is wrong and the city can't rely on misunderstanding of waters to restrict public access,” she said.
A previous version of this story incorrectly stated one of the jury's answers to a question regarding restrictions at Millennium Plaza Park.
Most Popular
Comments / 0