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Breaking: Circuit Court rules Chapter X’s purpose and limitations constitute land use regulations under ORS 197.015(11)

Last updated: February 13, 2024

Complete Timeline

Since November 2, 2021, Mayor Joe Buck and City Council have failed their constituents by not asking one single question of City Manager Martha Bennett and City staff about any impacts Measure 3-568 or Measure 3-575 (both being voted upon that day) would have on LU 23-0002’s proposed sewer line through Waluga Park – West; And again on March 17, 2022, when they approved LU 23-0002 in the consent agenda without any comment about Chapter X.

Sometime between January 11, 2023 and June 22, 2023, the communicated construction method, boring, was changed to trenching, thereby resulting in proposing the clearing of the natural habitat for a 17′ x 525′ construction corridor removing 14 trees and all the above ground natural habitat to install the sewer line through Waluga Park – West — an unlawful action per Chapter X. Did The Mayor and City Council know about this construction methodology change that is unlawful? And When?

The City Manager and City Attorney have willfully chosen NOT to recognize Chapter X – Park Development Limitation of the City Charter; a willful violation of the voters’ mandate to protect this Nature Preserve.

As facts are uncovered, this timeline will continue filling in to bring clarity to who knew what and when:

Jump to:    2021    2022    2023    2024

2021

Jun 15, 2021
Chapter X

  • City Council discussed citizen initiative petition 2020IN-1 and was presented three options for consideration:
    • Do nothing. Citizen initiative goes to the ballot
    • Endorse. Citizen initiative goes to the ballot w/ City’s endorsement
    • Compete. Present an alternative referendum that would compete with Citizen initiative. A draft referendum was shared written by the Mike Buck, Nancy Gronowski, Robert Ervin, Paul Lyons, Tom Bland Doug McKean and Stefanie Wagner.

Jun 23, 2021
Chapter X

  • City Elections Officer and County Elections office confirm initiative petition 2020IN-1 meets signature threshold requirements for the ballot.

Jul 6, 2021
Chapter X

Jul 8, 2021
Applicant

  • Applicant submits application for annexation.

Oct 13, 2021
Applicant

  • Email from Todd Knepper (Engineering Program Supervisor, City of LO):
    • “…maybe it would be better to have a midpoint manhole within the park…”
    • “…we can start talking about access to the overall sewer system and manholes, and if there could be access pathways that would also serve as a maintenance access…”
  • Email from Ivan Anderholm (Director of Parks & Rec, City of LO):
    • “The issues we have from the park perspective is that the original alignment would have required significant tree removal and would have placed a manhole in the wetland. There is really no vehicular access to the manholes, wetland unless there was a road built, not ideal for the natural resource.“

Oct 14, 2021
Applicant

  • Email from Phil Lawrence (Wastewater Superintendent, City of LO):
    • “Whatever we build we will really need some sort of access. We will not need a road but will need a access walking path wide enough for our equipment to the manholes.

Nov 2, 2021
Chapter X

  • Measure 3-568 ratified by 62% of Lake Oswego voters
  • 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.”
    • “The City will share more information about the charter amendment process in the coming weeks.” No process was communicated.

Nov 2, 2021
Applicant

  • City Council “tentatively” approves applicant annexation (AN 21-0003) in Ordinance 2874* (YouTube, 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
    • Erica Rooney, Public Works Director / City Engineer and Daniel Nguyen discussed impact to natural area (YouTube @ 1:40:20):
      • Erica Rooney: “We do sometimes have to go through parks. And actually As long as they’re accessible um it’s actually a pretty good place for us because it works out well for”
      • Daniel Nguyen: “and we’re able to do it without…with kinda preserving the natural areas in the area”
      • Erica Rooney: “and in this case correct they want to start with the attempt to bore as opposed to open cut.”

Nov 3, 2021
Applicant

  • Email from Ed Brockman (Landowner’s Representative) to Scot Siegel (Community Development Director, City of LO)
    • “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
Applicant

  • Email from Scot Siegel (Community Development Director, City of LO) responding to Ed Brockman (Landowner’s Representative)

Nov 17, 2021
Chapter X

  • Measure 3-568 Impact Report to Parks, Recreation and Natural Resources Board by Ivan Anderholm (Director of Parks & Rec, City of LO).

    From the PRAB audio recording, Mr. Anderholm begins his presentation (not included completely in the written minutes) :

    “So we’ve had, since the election, I’ve sat in on at least a half a dozen meetings with our city attorneys, both of our city attorneys, the city manager, the mayor, a couple of different counselors, to just talk about this.

    And then, Nancy Gronowski, who’s here sent a, a questionnaire kind of a a thing that evokes some, some conversation that we had.

    So the city stance on implementation of of this charter amendment. So everybody understands where we’re going with this. Unlike, charter amendment, that dictates we do something. This charter amendment really restricts what we can do on a specific list of properties.

    We talked about and discussed about looking at implementation ordinances, and, you know, how are we gonna manage this. And at the end of the day, the decision was made in the city manager and city attorney’s office, with input from parks, that, we’re probably we’re not gonna do you’re not gonna see an ordinance that’s an implementation ordinance of, of measure 10 or chapter 10.

    What we have come up with in the city attorney’s office and parks are in the process of drafting it right now. Is a, procedural document that talks about, development in any of these properties that are identified and it’ll be, you know, and the initial will be the concept of what the public has asked for or what the parks board or the parks department wants to initiate in those properties…”

Nov 22, 2021
Applicant

  • Email from Ed Brockman to Jason Loos (City Attorney) and Scott Siegel (Community Development Director, City of LO)
    • “… My client is willing to deed the 1.4 acres bordering Baleine to the city in exchange for being able to build two homes on the .62 acre Kimball lot. We already have a septic approval and we just did some more test holes and appears we could get another approval there. We have other ideas as well. We need to annex into the city to be able to have enough space to do anything. The county encumbered the property recently with an overlay that is extremely restrictive that would go away if we were in the city.”

2022

Jan 4, 2022
Chapter X

  • City Council considers tweaking voter-approved Chapter X

Jan 15, 2022
Chapter X

  • LoveLOParks issues press release condemning City Councils’ plans to subvert the will of voters

Jan 19, 2022
Chapter X

  • 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.”

Feb 23, 2022
Applicant

  • Hail Capital LLC (property owner) executes the deed covenant on property to be annexed that requires a sewer line through Waluga Park – West at the direction of the City.
    • City was not authorized per Chapter X to compel the property owner to execute an invalid deed covenant.

Mar 17, 2022
Applicant

Aug 15, 2022
Applicant

  • Email from Ivan Anderholm (Director of Parks & Rec, City of LO):
    • “I’ve visited the site in the past and walked it and have no issues with the sewer extension through West Waluga Park.“

2023

Jan 11, 2023
Applicant

  • Pre-application Conference Applicant Statement*
    • Page 8: “The proposed sewer main extension is proposed to be constructed by boring within the RP district to minimize excavation so that no permanent draining or filling of the wetland will occur. Spoils from the boring of the sewer main will be taken out of the RP district (off-site).”

*** Sewer construction method changed from boring to trench between these dates. While boring may or may not be allowed by Chapter X, trenching is prohibited by Chapter X ***

Jun 22, 2023
Applicant

  • Applicant development narrative*
    • Page 8: “The proposed sewer main extension is proposed to be constructed by trenching within the RP district. The construction limits have been designed to 17 feet in width to minimize disturbance area and tree removal. The trench will be backfilled with the site soil and considered a temporary impact. The 3 proposed manholes along the alignment will have spoils that will be taken out of the RP district ( off- site). Per DSL this is a permanent impact that requires mitigation.”

Jul 19, 2023

Aug 2, 2023
Opposition

Sep 22, 2023

Oct 25, 2023

Oct 31, 2023

Nov 6, 2023
Appeal

Nov 10, 2023
Appeal

  • LoveLOParks Steering Committee & Lake Forest NA issue a joint press release condemning the City for violating Chapter X

Nov 17, 2023
Appeal

  • City staff issue DRC Memo in response to written submitted testimony received
    • Charter Primacy. City stands firm with their flawed opinion that the City Charter and Chapter X don’t apply and specifically are not “…’applicable standards and criteria’ upon which the Commission is to base an approval or denial upon”
    • Chapter X Limitation.
      • City fails to accept first mandatory requirement “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 create a construction corridor for trenching and installing a sewer line is not a ‘road’

Nov 20, 2023
Appeal

Dec 4, 2023
Testimony

  • Written Testimony from Michael Kohlhoff G-587
    • A thorough and compelling argument on Oregon’s home rule city charter authority in the voters’ and the clear intent of Chapter X’s final authority for Nature Preserves

Dec 8, 2023
Testimony

  • Supplemental Written Testimony from Michael Kohlhoff G-588
    • Another substantive research based in case law
    • “…municipal charter provisions supersede and preempt contrary ordinances that can not be read as being consistent.”

Dec 9, 2023
Testimony

  • Written Testimony from Sierra Club (G-589)
    • “The plain text language of Measure 3-568, now Lake Oswego’s City Charter Chapter X, is clear and concise that all development must be consistent with preserving a Nature Preserve.”
    • “It is clear to us that this proposed development is contradictory to the act of preservation…”
    • “…we encourage the City of Lake Oswego to do the right thing…insure preserving this Nature Preserve.”

Dec 17, 2023
Testimony

Dec 18, 2023
Appeal

Dec 23, 2023
Testimony

Dec 30, 2023
Testimony

2024

Jan 3, 2024
Appeal

  • DRC Public Meeting on LU 23-0002 (3 of 3)
    • DRC Approves LU 23-0002
    • DRC findings report to be published by January 16, 2024; rescheduled for January 23, 2024 due to City state of emergency due to severe weather conditions.

Jan 12, 2024
Chapter X

  • Meeting with Martha Bennett (City Manager) and Ellen Osoinach (City Attorney) to discuss the City’s proposal for a validation proceeding in circuit court at the City’s expense.

    Attendees: Kate Mayes (Lake Forest NA), Scott Handley (LoveLOParks), Betsy Wosko (LoveLOParks), Michael Kohlhoff (LO Citizen), James Bolland (LO Citizen)
    • Two discrete issues City claims they need clarity on Chapter X:
      (1) temporary access roads for construction allowed under Chapter X, and
      (2) the extent of Chapter X regulations regarding underground utilities.
    • Ms. Bennett also claims the City never produced a “procedural document” for Chapter X as referenced by Ivan Anderholm (Director of Parks and Rec) in the PRAB meeting on 11/17/2021

Jan 23, 2024
Appeal

  • DRC Public Meeting

    DRC signed off loud and proud for the sewer through the Waluga Park – West Nature Preserve in defiance to voters’ ratification of Chapter X and no discussion on Lake Forest NA’s full appeal that highlights there are alternatives available that refutes the City’s claim of “Unavoidable utility (sewer) crossing of a delineated Resource Protection (RP) District (a Class 2 wetland) and removal of 43 trees”.

Jan 25, 2024
Applicant

  • The Applicant filed a Petition for Peremptory Writ of Mandamus with the Clackamas County Circuit Court.
  • The City no longer has jurisdiction of this Application for appeals; qualified persons may intervene in the Circuit Court proceeding (see ORS 227.179(2, 5).
  • Qualified persons that wish to intervene are advised to consult their own legal counsel. According to the Writ, the next court date is February 9, 2024, at 1:30 pm.

Jan 26, 2024
Applicant

Jan 29, 2024
Appellant

  • Lake Forest NA filed an appeal to the DRC decision to City Council. This move is largely symbolic for retaining future rights of appeal since jurisdiction has move to the circuit court.

Jan 30, 2024

  • City Council holds annual goal setting retreat
    • 10% of ~92 public comments submitted requested the City follow the law voters’ enacted in Chapter X
    • The materials nor discussion never mentioned one word about the public’s interest in City Council holding the City accountable to Chapter X!

Jan 31, 2024

  • City published a compilation of the Record for LU 23-0002. (Warning: 482 MBs)

Feb 1, 2024
Case: 24CV03746

Feb 5, 2024
Case: 24CV03746

Feb 6, 2024
Case: 24CV03746

Feb 8, 2024
Case: 24CV03746

Feb 9, 2024
Case: 24CV03746

  • Plaintiff, City of Lake Oswego, and Intervener present case to Clackamas County Circuit Court judge during 2 hour deliberation.
    • Judge determined he has jurisdiction in the matter
    • Judge determined Intervener has right to intervene
    • Judge listened to arguments to determine Chapter X’s applicability as a land use regulation

Feb 12, 2024
Case: 24CV03746

* 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 inquired specifically about whether the two natural park measures (citizen-initiated Measure 3-568 and City’s Measure 3-575) voters where considering on November 2, 2021, could have any impact on a sewer line through Waluga Park-West and advised staff accordingly in the temporary approval of Ordinance 2874. But, they didn’t.

Ultimately, the City Manager and Deputy City Attorney’s failure to acknowledge Chapter X and direct City Staff 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.

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