Waluga Park – West’s natural area is being illegally threatened for the gains of a private local developer (and the City)!
A private developer (the applicant) has a pending development application, LU 23-0002, seeking to establish 5 residential lots, connect to city sewer services, and remove 43 trees in the Lake Forest neighborhood.
The City of Lake Oswego has directed the developer to connect to sewer services within the natural area of Waluga Park – West, a 22.8 acre city charter protected Nature Preserve. The natural area of Waluga Park – West would be severely impaired with significant damage to flora and fauna with the removal of 14 significant trees to construct a 17′ wide by 525′ long road to facilitate the trenching and installation of the sewer line.
The Lake Forest (NA) has opposed LU 23-0002 citing the applicable City Charter and City Code. Their first opposing position succinctly invokes Chapter X’s development limitations, referencing the precise legal mandates imposed on the City. And, their second opposing position concisely enumerates the City hasn’t considered all available alternatives.
The City has rejected Lake Forest NA’s opposing position, as well as ignored comments from concerned residents, and provided tentative approval for LU 23-0002. In their staff report (pages 10-13), the City falsely claims Chapter X doesn’t have jurisdiction over City Code. Additionally, the City has the audacity to suggest Lake Oswego residents engage them in a costly court challenge to compel them to comply with the voters intent for Chapter X.
The LoveLOParks Steering Committee is the architect and steward of Chapter X’s legal mandates and the executor of BOTH the citizen initiative petition 2020IN-1 and Measure 3-568. After reviewing all details resulting in LU 23-0002, the LoveLOParks Steering Committee concurs with Lake Forest NA’s findings: this development violates the City Charter Chapter X as ratified by Lake Oswego voters on November 2, 2021.
The Lake Forest NA Board and LoveLOParks Steering Committee strongly urge all Lake Oswego residents to get involved and make your voices heard before its too late for Waluga Park – West. Together, we must defend the fundamentals of our democracy in governance by the people and uphold the rule of law.
City Charter Primacy
The City Charter defines the governing system for granting authority or rights and creating limitations on city powers and functions. The City Charter implicitly retains superiority over City Code and ordinances; much the same way that federal law retains superiority over state law and state law retains superiority over city charters. City Charter changes are restricted to a vote of the people, thereby protecting the city’s governing system from tampering by the revolving door of politicians and city staff.
Per the Oregon Supreme Court, “[T]he validity of local action depends, first, on whether it is authorized by the local charter or by a statute, or if taken by initiative, whether it qualifies as ‘local, special (or) municipal legislation’ under [A]rticle IV, section 1(5); second, on whether it contravenes state or federal law.” La Grande/Astoria v. PERB, 284 Or 173 (1978)” Assuming that a local action is authorized by a city’s charter, the courts will then ask whether the local action is “incompatible” with state law, either because the Legislature intended to preempt local lawmaking authority (i.e., “express preemption”) or because state and local law cannot operate concurrently (i.e., “implied preemption”).
Lake Oswego residents intentionally architected and placed Chapter X – Park Development Limitation in the City Charter and not City Code. This guarantees that the voters’ explicit will and intent is upheld to protect 15 natural areas from all development that is inconsistent with preserving them as natural areas.
The City of Lake Oswego knew that citizen-initiated Measure 3-568 imposed strong legal mandates on the City to preserve these natural areas. This is precisely the reason they chose to compete against Measure 3-568 with a developer-friendly referendum that delegated authority to City Council. Voters recognized the City’s deceit and rejected their referendum.
The City of Lake Oswego must adhere to the rule of law by the powers and limitations it has been granted in the city charter and choose an alternative sewer connection option. Lake Oswego voters for Measure 3-568 and law abiding residents would agree, as well.
Timeline of events
It is evident since November 2, 2021, Mayor Joe Buck, City Council, City Manager Martha Bennett, and City staff willfully failed to acknowledge the City Charter and cite the applicability of Chapter X – Park Development Limitation as it legally applies to Waluga Park – West. By failing to recognize Chapter X, the City is violating the voter-approved land use development limitations enshrined in the City Charter for Waluga Park – West, a protected Nature Preserve.
Nov 2, 2021
- Measure 3-568 ratified by 62% of Lake Oswego voters
- Chapter X – Park Development Limitation becomes legally binding in the City Charter
- LoveLOParks issues press release on Measure 3-568 passing
- City issues press release on Measure 3-568 passing
- “During the November 2, 2021 Special Election, Lake Oswego voters passed the Citizen’s Initiative 3-568. Through voter approval, the City will amend Chapter X of the Lake Oswego Charter to include additional protections of our natural areas. Any future property-specific changes will include voter approval.“
- “I would like to give special thanks to all the community members engaged in the parks measure campaigns,” Mayor Joe Buck said. “Love LO Parks elevated the issue of natural area protections for a broad set of acreage within the city. The City will continue to work together with the Friends Groups, Oswego Watershed Council and the community on the comprehensive approach needed to enhance ecological conditions throughout the City.”
- City Council “tentatively” approves applicant annexation (AN 21-0003) in Ordinance 2874* (Presentation*, Approved Minutes*)
- Not one discussion about Chapter X, Measure 3-568, nor Measure 3-575 from Mayor Joe Buck, City Councilors, nor City Manager Martha Bennett
Nov 3, 2021
- Letter from Ed Brockman (landowner) to Scot Siegel (City Community Development Director)
- “This option makes sense to appease the concerns by the council and the public. We would develop 3 houses on septic instead of 5 on sewer…This plan avoids the path down Baleine and protects the wetlands. We might even donate the remainder of the property to Waluga Park.”
Nov 12, 2021
- Letter from Scot Siegel responding to Ed Brockman
Jan 4, 2022
- City Council considers tweaking voter-approved Chapter X
Jan 15, 2022
- LoveLOParks issues press release condemning City Councils’ plans to subvert the will of voters
Jan 19, 2022
- Mayor Joe Buck issues statement that City will recognize will of voters
- “Protecting our natural area parks and the overall enhancement of the ecosystem is a top priority for our City — as evidenced by our Climate Action Plan, the number of residents engaged in community-based environmental advocacy groups, our City investments in the enhancement and preservation of natural areas and by the passage of Measure 3-568 itself.”
Mar 17, 2022
- City Council approves applicant annexation (AN 21-0003) in Ordinance 2874* (Approved Minutes*)
- No discussion.
Jun 22, 2023
- Applicant development narrative* submitted
Jul 19, 2023
- City publishes Notice of Application* for LU 23-0002
Aug 2, 2023
- Lake Forest NA submits Positions of Opposition
Sep 22, 2023
- City publishes Re-Notice of Application*
Oct 25, 2023
- City publishes Notice of Decision* and Staff Report granting tentative approval
Oct 31, 2023
- City publishes Anticipatory Notice of Public Hearing*
Nov 6, 2023
- Lake Forest NA files Notice to Appeal
Nov 10, 2023
- LoveLOParks Steering Committee & Lake Forest NA issue a joint press release condemning the City for violating Chapter X
Nov 17, 2023
- City staff issue DRC Memo in response to written submitted testimony received
- City stands firm with the flawed opinion that the City Charter and Chapter X specifically are not “…’applicable standards and criteria’ upon which the Commission is to base an approval or denial upon”
- City fails to acknowledge that “all development within a Nature Preserve is consistent with the preservation of a Nature Preserve as a natural area”
- City misinterprets Chapter X’s allowing park sanitary facilities ‘for public access and use’ as allowing the installation of a major sewer line for a private landowner
- City contends that the 17′ x 525′ habitat destruction and tree removal to trench and install a sewer line is not a ‘road’
Nov 20, 2023
- Lake Forest submits written opposition testimony
- G-580 – continuance request due to missing pages and redacted documents
- G-581 – appeal arguments
- LoveLOParks Steering Committee submits written opposition testimony
- DRC meeting continuance granted: Dec 18, 2023 @ 7pm
* Applicable Regulations sections in City documents and public meetings held by the Mayor, City Council, City Manager, and City staff fail to acknowledge city charter Chapter X land use limitations for Nature Reserves
LU 23-0002 should never have reached this stage in the City’s development process. Mayor Joe Buck and City Council should have rejected Ordinance 2874, annexing the aforementioned properties (An 21-0003), at the city council meeting on March 17, 2022, on the grounds the City directing the applicant to execute a covenant for a sewer line through Waluga Park – West was not compliant with Chapter X, effective November 2, 2021.
In fact, Mayor Joe Buck, City Council, and the City Manager should have raised concerns on November 2, 2021, when Ordinance 2874 was first introduced since voters were casting their ballots for two park preservation measures that very day: citizen-initiated Measure 3-568 and the City’s own competing referendum.
Mayor Joe Buck and City Council’s failure to acknowledge Chapter X shows their apathy toward the will of Lake Oswego constituents and the city’s governing system — once again, demonstrating Lake Oswego voters were justified in ratifying Measure 3-568. It is now incumbent on the Development Review Commission to reject LU 23-0002 to comply with the City Charter, the City’s governing authority.