Court rules that Lake Oswego housing project does not violate parks protection charter amendment

After a delay of nearly a year for a project to build five houses near Southwest Baleine Street and Southwest Kimball Street along with a sewer line extension at West Waluga Park, a court ruling this week may lead to the development’s imminent revival.

Clackamas County Circuit Court Judge Michael Wetzel ruled that a project proposed by New Look Development, which the city of Lake Oswego required to include a sewer line extension in West Waluga Park, does not violate the voter-approved charter amendment that outlaws many types of development (like roads, athletic fields and telecommunications facilities) at parks owned by the city.

New Look Development actually filed the court case in early 2024 to force the city to approve its application for the reasoning that the city had missed deadlines related to the local appeals process. Before that, the Lake Forest Neighborhood Association filed appeals with the city in 2023 to prevent the application from moving forward. The neighborhood association argued that the sewer extension violated Chapter X. The city staff initially concluded that Chapter X was not relevant because they did not consider it to be a land use regulation and did not think a sewer extension would violate the amendment anyway.

However, the developer’s court filing likely ended up delaying the project further as much of the court’s efforts focused on whether Chapter X is a relevant provision to the case and, subsequently, whether the project would violate it rather than whether the city met application approval deadlines.

Wetzel issued its first ruling in the case earlier this year, stating that Chapter X was in fact a land use decision. However, this week, the judge rejected arguments from the intervenor in the case, Michael Kohlhoff, that the project ran afoul of the charter amendment.

Contrary to Kohloff’s arguments, the judge said that the building of a temporary gravel route and above-ground manholes for the sewer line extension do not violate Chapter X and that the project does not contradict the spirit of the charter amendment either.

“Section 41, the purpose section, states that the purpose of the chapter is to preserve the designated parks as natural areas for the enjoyment of all. The first paragraph of section 43 essentially echoes this language. Intervenor presented substantial evidence and argument about the effect the proposed development would have on the wetlands of the western portion of Waluga Park — West,” Wetzel wrote. “Had Chapter X directed preservation of wetlands in all circumstances or prohibited development of any sort, this argument would be compelling. However, as noted above, Chapter X allows certain development and allows structures that are not inconsistent with the existing natural conditions of the parks. Accordingly, because the proposed project is consistent with contemplated improvements and current conditions of the park, I do not find that the current development violates the purpose provisions of Chapter X.”

Wetzel granted New Look Development’s request for the court to issue a writ of mandamus ordering the city to approve the development application.

In a post on its website, LoveLOParks — which put forward the Chapter X charter amendment ballot measure — expressed disappointment about the court decision, writing: “Our community owes Michael and Theresa Kohlhoff a debt of gratitude for rigorously defending Lake Oswego voters’ interests in protecting the Waluga Park – West Nature Preserve as expressed in Chapter X from such development that New Look Development and the City litigated in partnership.”

When asked for comment on the court decision and whether the city would respond in some form to Wetzel’s ruling that Chapter X is a land use decision, City Attorney Ellen Osoinach issued a statement via email.

“We appreciate the Court’s thorough review of the hundreds of pages of documentation presented in this case. The City is grateful for our all-volunteer Development Review Commission’s extensive efforts in reviewing and reaching its decision based upon the factual record, much of which the Court relied on in reaching its decision,” she wrote. “We are pleased that the Court adopted the Commission’s conclusion that construction of temporary roads and underground sewers, followed by extensive mitigation plantings, do not violate the City’s charter. We are currently reviewing the court’s decision and will consider our next steps after further discussion.”