Lake Oswego government asks court to reconsider Chapter X ruling

This story was updated from its original version

Prior to evidentiary hearings on the matter, the city of Lake Oswego filed a motion last week asking Clackamas County Circuit Court to revisit a prior ruling pertinent to a case that may determine whether a proposed sewer line extension in West Waluga Park violates the city charter.

The court ruled in March that, contrary to the city’s point of view, a charter amendment protecting parks from development is a land use decision and is therefore a relevant regulation in the case. The city filed a briefing May 21 continuing to argue otherwise and asking the court to take another look. The court conducted evidentiary hearings on whether the sewer project violated the charter amendment this week and a court representative said they were not sure when a ruling would be issued.

The court case, where New Look Development seeks preemptive approval of a land use application to build a housing project, was filed by the developers after the city purportedly failed to meet land use deadlines. The city mandated that New Look Development build the sewer line extension as part of the project.

However, the Lake Forest Neighborhood Association and some other community members believe that the sewer line extension violates Chapter X, which prevents the city from building things like telecommunication structures, athletic facilities and parking lots at parks the city owns. The neighborhood association issued an appeal that brought the land use application before the Development Review Commission, which upheld city staff's view that the sewer line extension did not violate local code.

The city has argued that this land use process was the improper avenue for determining the relevance of Chapter X to the sewer extension project because the charter amendment, according to the city’s view, is a property restriction and not a land use regulation (the city also said the sewer extension doesn’t violate Chapter X anyway because it would be an underground facility).

However, circuit court Judge Michael Wetzel issued a ruling in March contradicting the city’s stance. The judge said that land use regulations can include charter provisions and that “elevating laws enacted by city councils above the laws enacted by the voters and enshrined in the city charter” would violate state law.

Based on Wetzel’s direction, the evidentiary hearings scheduled this week will lead to a ruling on whether the project violates Chapter X.

Last week, the city filed a brief with the court asking it to reconsider this ruling. The argument noted that two of Lake Oswego’s 15 city-owned parks are outside city limits, meaning the city’s land use regulations do not apply.

“A fundamental principle of a ‘general ordinance …’ of a city is that it applies to lands only within its city boundaries. A city ordinance does not have any extraterritorial effect, save and except for those limited instances in which state law has expanded the City’s jurisdiction, e.g., land divisions within six miles of a city,” the city filing reads.

The two protected properties outside of city limits are Stevens Meadows and Kerr Open Space. The city briefing further states that if Chapter X were a land use regulation “Chapter X as to those two nature preserves would not be within the jurisdictional authority of the voters to enact.”

New Look Development agreed that the court should reconsider this determination in a separate filing.

“As Chapter X restricts the City’s ability to exercise certain land development related activity outside its jurisdictional boundaries and inside the jurisdictional boundaries of the City of Portland and unincorporated Clackamas County, it cannot be a Land Use Regulation,” the filing reads.

Michael Kohlhoff, who is an intervenor in the case, asked the court to deny this motion for a number of reasons including that the two city parks outside of city limits aren’t at issue in the case.

“Defendant's Motion is not germane to the application before the court, which seeks a sewer line crossing of the Nature Preserve of Waluga Park-West. The application does not seek to cross the Nature Preserves of Kerr Natural Area or Stevens Meadows which are the Nature Preserves Defendant addresses,” the briefing reads.

The city faces another challenge regarding the Chapter X amendment. Clackamas County seeks to build road improvements that would impact a small portion of the Stevens Meadows property and the city is mulling placing a ballot measure in front of voters this November asking them to amend the charter to allow this project.