LUBA decision April 9

March 18, 201, Eugene, OR
LUBA LAND USE APPEAL
..........it was a beautiful spring day..........

The hearing was in Eugene on Wednesday at the University of Oregon Law School in one of the auditorium-style classrooms with student in attendance.  The rest of the audience was made up of the laweyers for both sides, Pattrick Kessi came to watch the next installment in the fight for his project, Lita Grigg from Save Our Village, and several people from Lake Oswego who had testified in opposition to the development design. No supporters of the project that I could tell.  (Where is the grass roots sentiment on this issue?)

The hearing was much like those at the City Council

with each side getting their say during their allkted time, plus rebuttal.  The LUBA panel of land use lawyers asked a few questions during the testimony, but they also had 60 pages of legal briefs to refer to.

Overview (from a non-attorney!):

Petitioner (against the Wizer Block design):  Argued that the City Council decision was inconsistent with the code.  Their decision to overturn the DRC denial of the project was based on the objective standards of size (number of feet high, number of stories, FAR ratio, etc.) and design elements rather than the definition of "small scale village character."  The deciding body must apply the definition and its meaning (intent) before it can consider the standards.

The respondent (Kessi group) argued that by following the standards they met the criteria which defined "village character" and "small scale."

Petitioner said that, using the standards to define "small scale vIllage character," one could build a Home Depot or a WallMart if the building facade had the "look" of the Lake Oswego Style.  In essence, one could technically follow the numerical standards and get something that was very far from the intended small scale, sophisticated, village character the Redevelopment Plan intends.

Ms. White, lawyer for the respondents, admitted that the code would not allow a single building because it would not satisfy discretionary codes.

If discretionary codes do determine what can and can't be built, what determines the meaning of  "scale" if not a discretionary decision about how something looks and fits into a space?  The meaning of small scale has to be seen in context with its surroundings.  The size and scale of the downtown core was established with existing  redevelopment projects.  The mass and size of the Wizer develooment would overwhelm the surrounding blocks and not be complementary, even if exterior elements were the same.  Looks, and number, don't define scale.

There were other arguments about the exceptions approved by the Council, and in my opinion, the respondent's reasoning was, in a word, silly.  The arguments didn't hold water and sounded desperate.  It will be interesting to see how the sharp, experienced attorneys on the board felt about the testimony - what war reasonable, and what didn't apply.  For that we will, have to wait until April 9.  That seems quick to me, but I welcome the end to the suspense.

Depending upon the outcome, the losing party could take their case to the Court of Appeals and then to the Oregon Supreme Court.   But one step at a time.