Before Clackamas County Circuit Court Judge Kathi Steele issues her ruling on whether the city of Lake Oswego’s rules preventing access to Oswego Lake should stand, attorneys representing the three main parties are making their cases as to how the judge should interpret recent findings by an advisory jury.
Notably, the parties addressed the question of whether the judge should issue a court injunction mandating that the city take action to remove barriers to lake access or allow the city to conduct its own process to determine new regulations if she deems the city’s rules unreasonable.
Attorneys with the city of Lake Oswego, the Lake Corporations and plaintiffs Todd Prager and Mark Kramer filed documents with the court this week arguing how they think Steele should consider the advisory jury’s recommendations. A hearing on the matter will be held June 3.
The jury’s findings asserted that none of the city’s justifications for barring access to Oswego Lake from Millennium Plaza Park are reasonable. At the other two entryways to the lake — Sundeleaf Plaza and Headlee Walkway — the jury found that some factors like property restrictions and the design of the spaces were justified reasons for barring access.. The jury issued these opinions following a two-week trial in April.
The case dates back to 2012 and was heard at the Oregon Court of Appeals and Oregon Supreme Court before being remanded back to circuit court. Currently, Lake Corporation shareholders and easement holders have access to the lake and there is limited access for residents within Lake Oswego city limits, but there are no places where the public at large can enter the lake. However, in phase 1 of the trial, a judge ruled that the waters of the lake are public.
Varied responses to jury findings
The plaintiffs argued in the briefings that the court should adopt the advisory jury’s findings, adding that Oregon courts must follow a verdict by an advisory jury “except when it is ‘clearly against the weight of the evidence.’”
Further, the plaintiffs asserted that the court should order injunctive relief directing the city to remove “private lake” signs as well as the boulders, bronze cattails and reeds that obstruct lake access from city properties.
“Trial testimony and evidence demonstrates the City installed the barriers based on its incorrect belief that Oswego Lake was private and with the intent of discouraging public access,” the briefing reads.
The attorneys added that the jury’s recommendations demonstrate the circumstances of the case, which the judge should consider.
The plaintiff’s attorneys also delivered point-by-point arguments, similar to those presented at trial, as to why the city’s justifications for preventing lake access — like invasive species, public safety, design, property boundaries and more — are not reasonable.
In its briefings, the city of Lake Oswego asserted that the advisory jury’s findings “do not support a conclusion that the City was unreasonable” and that some of the jury’s findings contradict evidence or disregard some of the factors at play. Some of the reasons the city has put forth for limiting access to Millennium Plaza Park include the risk of litigation, budget constraints and permit restrictions it signed when building the park.
Further, the city said that if the court decides to strike down the city’s rules, it should allow the local government time and autonomy to adopt new regulations and asserted that the court should defer to a municipality that is tasked with creating its own laws.
“This would be the most measured approach, which keeps legislative acts where they belong—in the legislature (meaning the city). This Court should not, as Plaintiffs demand, grant sweeping, permanent, mandatory injunctive relief that would effectively manifest park management duties in this Court in perpetuity,” the city wrote.
The city also opposed the idea of a court injunction.
“In effect, Plaintiffs’ complaint asks the Court to act as Czar over the City’s waterfront parks, demanding immediate removal of fences and vegetation, permanent planning mandates, and other similar impositions on City park management,” it wrote.
The city later added: “Permanent injunctions are extraordinary remedies that are granted only in unusual circumstances.”
What’s next
The Lake Corporation, which has intimated that it could take legal action against the city if the local government were to allow broad lake access, also filed a brief asserting its opinions on the case and opposing the possibility of injunctive relief.
Oral arguments regarding the briefings submitted will be held June 3 and Steele will then have 60 days to issue her final ruling in the case.
Most Popular
Comments / 0