G-581 Kate Myers, LFNA Chair 11-20-2023 Current Planning Public Comments and Testimony
Please fill out the form, below,to submit written comments on a pending land use application or an appeal
of a tree removal request.All written comments and materials are due by the deadline listed on the Notice.
Written submittals received by the deadline will be entered into the public record of file and will be
considered by the decision body. Contact the staff coordinator listed on the Notice if you have questions.
Case Number* Please see Notice for correct LU or tree appeal number.
LU 23-0002/AP 23-04:A request for an RP District(wetland) Unavoidable Crossing
to Install a Sewer Line and Serial Lot Line Adjustments.
If you do not see your case here the comment period is not open. Please check back
later.
Case Number- LU 23-0002/AP 23-04:A request for an RP District(wetland) Unavoidable Crossing
Verification* to Install a Sewer Line and Serial Lot Line Adjustments.
Please re-select your case number to ensure it routes to the appropriate case.
First Name* Lake Forest Neighborhood Association
Last Name* Kate Myers, Chair
Address Street Address
Address Line 2
City State/Province/Region
Postal/Zip Code
Email* katemyers2011@gmail.com
Stance:* r Support
C' Opposition
f Neither for nor against
Please type your comments below,or you may upload a PDF of your comments. If you have other media types, please
contact planning@lakeoswego.city to coordinate its addition to the public record.
Comments Hello DRC:
Please find attached our written testimony regarding the appeal for LU 23-0002.
Thank you,
Kate Myers, Chair
Lake Forest Neighborhood Association
File Upload LFNA Written Testimony LU 23-0002 AP 23-04
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Written Testimony Submittal for Lake Forest Neighborhood Association
LU 23-0002/AP 23-04: A request for an RP District (wetland) Unavoidable Crossing to Install a
Sewer Line and Serial Lot Line Adjustments
Lake Forest Neighborhood Association asks the DRC to overturn the staff approval for LU 23 -0002. We
object to the sewer crossing of the RP district as unavoidable due to the existence of practicable
alternatives. The evidence shows that the City made a land use decision of unavoidable RP crossing at
the time the property was annexed – despite advising the City Council that the public hearing was not a
land use determination. The expensive and avoidable sewer extension helps to create a determination
of disproportionality when approaching other reasonable infrastructure improvements on Baleine
between Kimball and Allison repairing a roadway that is in very poor condition prior to receiving
additional traffic from 5 new homes on currently vacant lots and creating a reasonable consolidated
access onto Kimball instead of the proposed two, side-by- side access ways. Neighbors have witnessed
problems from stormwater near this RP District and the staff has minimized their concerns citing
conditioning approval for stormwater design that is inadequately presented in the application. The
application, with the sewer extension and two access lanes, removes trees that could otherwise
remain on the property and not limit development. We contend that alternative designs have not been
considered. Presentation of facts is necessary to meet the applicant’s burden of proof. We are asking
the Development Review Commission to consider our arguments and deny the application.
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1. Serial Lot Line Adjustments resulting in five (5) residential lots (two of
which are flag lots)
Flag Lots (LOC 50.07.007.2): The staff report says: “…serial LLAs will result in three regular lots, Lots 1, 2
and 3, one new flag lot, Lot 4 and will modify an existing flag lot, Lot 5.” (page 27)
Access (LOC 50.07.007.2.c): The staff report says: “Street frontage for a flag lot is not required, but
access to a public or private street is [LOC 50.06.003.1.c; 50.07.007.2.c.ii). Access must be consolidated,
including with the non-flag lot(s), unless not practicable.” (bold and italics provided for emphasis, page
29)
LOC 50.07.007 2.c.i states: “When creating flag lots, the reviewing authority shall require
that access to the flag lots is consolidated into a si ngle shared access lane with the non-flag
lot(s) or off site. If not practicable, then new lots may have individual access points.” (bold
and underlining added for emphasis)
The application shows two separate access lanes side-by-side on Kimball Street. The new
proposed northern access lane is created to serve lots 1, 2 and 3. The southern access lane is
proposed to serve two flag lots (one flag lot currently exists and is served by an access
easement in the same location). The applicant has not met its burden of proof to show how
consolidated access to these 5 lots is not practicable . LNFA is asking that the DRC, as the
reviewing authority, require consolidated access recognizing it is practicable if that access is a
street.
The staff report says: “LOC 50.07.007.2.c.iii limits the use of access lanes to no more than two flag lots
and one non-flag lot.” (bold and italics provided for emphasis, page 29)
The staff report also says: “In order to accommodate the full 20-foot minimum easement width, a new
access easement across proposed Lots 1 and 2 for the benefit of proposed Lot 4 will be required
[Condition A(1)a].” (page 29)
It is possible that this is a typo, and the staff meant Lot 3 instead of Lot 4. However, if not a
typo then this is saying that Lot 4, along with Lot’s 1, 2 and 3 are all providing for access to
Kimball Street using the northern access lane or additional easement for the southern access.
1 flag and 3 regular lots.
It appears that the staff is conditioning the applicant to an access lane that will exceed the
limit by 1 additional lot.
The proposed lot configuration resulting from serial lot line adjustments will - for all intents
and purposes - appear as 1 regular lot and 4 flag lots. The fact that lots 2 and 3 abut the
unopened Baleine Street – that NO ONE believes will ever be an improved street – creates a
loophole that the City and the developer expect us to accept without requiring consolidated
access. The DRC must correct this oversight and direct the applicant to provide consolidated
access per LOC 50.07.007.2.c.i.
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Streets and Sidewalks (LOC Chapter 42)
The staff report says: “This Chapter authorizes the City Engineer to require the development make
specific street and sidewalk improvements after taking a variety of policy and site-specific factors into
consideration. The City Engineer’s comments are included for the review of the overall understanding of
the project.
No new lots are proposed to be created with this application: the proposed lot line adjustments shift the
five existing legal lots of record into a new configuration without creating any new lots (Exhibit E-004).
Therefore, no right-of-way dedication, public street improvements or public pathway/sidewalk
improvements are required as a condition of approval. No additional vehicle trips or pedestrian trips
are being generated to the overall transportation system as the number of legal lots of record will
remain the same with this proposal; hence, there are no requirements for mitigating street
improvements along the overall site frontage that would be justified to be roughly proportional to the
degree of impact imposed by the new development , as required by the U.S. Supreme Court in the case
of Dolan v. the City of Tigard” (bold and italics are added for emphasis, page 32-33)`
LNFA contends that the ‘shift into a new configuration’ does impact the transportation
system. The original plat for this area of the neighborhood shows 2 corner lots -
Baleine/Kimball and Baleine/Inverurie, two lots facing Baleine, and two lots facing Kimball
(see below, excerpt from Exhibit E-011 Lake Forest Plat 1925). It can be reasonably argued
that the overall transportation system at that time would place access to these lots on
Baleine and on Inverurie as well as on Kimball.
The engineer’s position does not account for directing all vehicle use for these five lots to
Kimball Street with the two access points (See figure below for the proposed access lanes for
this development from Exhibit E-005, Site Plan). These 5 new residences are expected to
dramatically increase the use of the gravel road that is in poor condition on Baleine between
Kimball and Allison Place (See the clipped map below generated from LO Maps with bolded
highlights showing the access lanes and the proximity to the existing gravel road). This is a
pinch point for residents on Kimball to access Carman Drive. The neighborhood has asked
that this increased use and the existing poor condition of this road be taken into
consideration with this application as “site specific factors.” Obviously, the wetland location
is a site-specific factor as well.
LOC Chapter 42 provides for taking these factors into consideration, and LFNA asks the DRC
to do just that. LNFA contends that the City can and should condition the application to
provide public street improvements and public pathway/sidewalk improvements. The City
has provided a condition of approval specifying plans that shall: “show restoration of the
informal pedestrian pathway within the Baleine Street right of way to existing conditions
after native soil has been replaced.”(bold and italics added for emphasis) It’s not clear that
owners of the abutting new lots won’t make changes to the existing pathway as it is
unopened and unimproved. LFNA wants to ensure that the pathway through the wetland
area remains accessible as a boardwalk (appropriate through a wetland) allowing its use year-
round. LFNA asks for street improvements for the gravel portion of Baleine between Kimball
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and Allison. Without these improvements, LFNA asks the DRC to deny the application as
insufficiently addressing Streets and Sidewalks per its responsibilities under LOC Chapter 42.
Excerpt from Exhibit E-011, Lake Forest Plat 1925
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Excerpt from Exhibit E-005, Site Plan
LO Maps showing proximity of
proposed access lanes and the degraded Baleine gravel road
City of Lake Oswego Stormwater Management Code (LOC Chapter 38.25)
The staff report minimizes neighbors’ concerns about stormwater – because no applicable
code sections are cited. This should not be a pass for the staff or the applicant to not take
neighbor’s observations and history into account simply because these residents are not
experts at expressing concerns in terms of the applicable codes.
The staff report says: “At this stage of the project, the question per LOC 50.06.006.3.b is whether
the applicant can demonstrate that it is possible, likely, and reasonably certain to succeed that
the requirement of the Stormwater Management Code can be met, based upon the development
activities and impervious area thresholds in LOC 38.25.120.[LOC 38.25.100(2)(a)]” (bold and italics
added for emphasis, page 32)
…
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The staff report continues: “The applicant has submitted a preliminary drainage report prepared by
a registered engineer (Exhibit F-010) and preliminary site and utility plan (Exhibits E-005 and E-007).
The City’s contract Storm water Review Engineer reviewed the project and detailed the findings in
Exhibit F-011 which documents applicant information and findings related to LOC 38.25.120.1,
Project Classification Procedures and Requirements. The Lake Oswego Stormwater Management
Manual (LOSWMM) provides additional information including specifications and procedures for
proper implementation of the requirements of the Stormwater Management Code and is
referenced as applicable [LOC 38.25.110].
Based upon the preliminary storm water design submitted to demonstrate the feasibility of a final
stormwater design complying with the Storm water Management Code, staff finds the preliminary
stormwater design is feasible as submitted.” (bold and italics added for emphasis, page 32)
After reviewing Exhibit F-010, the aforementioned “drainage report,” LNFA found
recommendations from RSS (Rapid Soil Solutions) for: “onsite infiltration for lots 4 and 5.
With Lots 1-3 drainage being piped to storm water basin that is set aside on lot 4.” (page
107, and figure below, from Exhibit F-010, bold and italics added for emphasis). This
conclusion was reached after performing infiltration testing. The report states: “…test holes
were excavated between lots 1 and 2 and then on lot 3. Fine grained soils were found with
the excavator. We returned on 13 May 2022 to hand excavate those holes using a hand augur
for a better pre-soak and readings. RSS found the soils to be hard white elastic CLAY and
when we excavated to a depth of 4ft and performed the four (4) hour pre-soak they did not
drain at all.” (page 106 of Exhibit F-010 bold and italics added for emphasis )
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Considering this to be significant, LNFA reviewed Exhibit F-011, the findings from the City’s
contract Storm water Review Engineer (Brown and Caldwell Stormwater Analysis ). Under LOC
38.25.120.1.d.i B. On-site Stormwater Management, the report says under the column of
“applicant’s information”, that “This land use review is only for the stormwater for the south
access lane (not the associated five lots) because a “flag lot” is being created through the
lot-line adjustment process.” Under the column of “findings,” the report says: “The runoff
calculations and stormwater facility sizing calculations for the drywells in the applicant’s
Drainage Report (Appendix C: Drywell Sizing) are not consistent with LOSWMM, Section 4
and indicate it is feasible to fully manage the 10-year, 24-hour storm onsite using a private
drywell. The design infiltration rate used is correct.” (bold and italics added for emphasis)
Exhibit F-011 continues with specific “conditions of approval” for this and other sections of
their findings that are included in the staff conditions of approval for their decision (B. 3-5).
LFNA’s position is that the applicant has not met its burden of proof for five residential lots.
The conditions of approval are too substantive at this stage of the project and the applicant
has not demonstrated that it is “possible, likely, or reasonably certain to succeed.” The
application needs to show more specificity for managing stormwater – especially considering
the proximity to the RP district, and neighbors’ concerns of possible negative impacts to their
properties. To be clear, we are saying that LOC 50.06.006.3.b Stormwater Management
Standards, Standards of Approval have not been met. Based on LOC Article 38.25,
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Stormwater Management Code, the capacity, type, location, feasibility, and land area
required of the proposed stormwater management system for this project has not been
demonstrated for the five lots.
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2. Approval of Unavoidable Utility (sewer) crossing of delineated
Resource Protection (RP) District (a class 2 wetland)
Sensitive Lands Overlay Districts [LOC 50.05.010, 50.07.004.8)
Progressive Mitigation [LOC 50.05.010.4 e-g]: The staff report says: “Development shall not be placed
within an RP District unless there is no other practicable alternative, and th e criteria for avoidance,
minimization and mitigation are met.” (page 19)
Avoidance (LOC 50.05.010.4.e): The staff report says: “The applicant shall endeavor to avoid
detrimental impacts on the resource altogether by providing alternative site plans along with the
development proposal demonstrating that alternative designs have been explored. If disturbance of a
resource district is proposed, the applicant shall first demonstrate that intrusion into the resource district
cannot be avoided by a reduction in the size or configuration of the proposed development or by
changes in the design that would avoid adverse effects on the resource while still allowing development
of the property [subsection f.i.].
The applicant is proposing to construct a utility crossing (sewer line) through the RP District within West
Waluga Park (tax lot 2209) and within the unopened right-of-way of Baleine Street in order to connect to
the closest legally and physically available public sewer system located within West Waluga Park. The
applicant has considered various options for connection to the public sewer system prior to application
submittal; however, intrusion into the resource cannot be avoided” (page 19 of staff report, bold and
italics added for emphasis)
LFNA provides for the record that the referenced code has been paraphrased in the staff
report. LOC 50.05.010.4.e-f.i says:
e. Mitigation; Purpose
Mitigation is a way of repairing or compensating for adverse impacts to the functions and
values of a natural resource caused by a development. Mitigation may consist of resource
area creation, restoration, or enhancement. Some examples of mitigation actions are
construction of new wetlands to replace an existing wetland that has been filled, replanting
trees, and restoring stream side vegetation where it is disturbed. (bold for emphasis)
This subsection 4.e through LOC 50.05.010.4.g recognize that true replacement of mature or
complex natural resource systems is difficult and can take many years. Mitigation is
discouraged by first requiring that avoidance of development siting within the resource be
explored. Then, if that is not possible, actions should be taken to minimize damage to the
resource. Mitigation ratios are established according to the type of mitigation proposed and
the value of the resource. Maintenance and monitoring of the mitigation measures are also
required.
f. Progressive Mitigation Steps Required
The approving authority shall permit development allowable within an RC protection area or
RP district only if it finds that the following progressive steps have been met:
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i. Step #1 Avoidance
The applicant shall endeavor to avoid detrimental impacts on the resource
altogether by providing alternative site plans along with the development
proposal demonstrating that alternative designs have been explored . If
disturbance of the resource district resource is proposed, the applicant shall first
demonstrate that intrusion into the resource district cannot be avoided by a
reduction in the size or configuration of the proposed development or by
changes in the design that would avoid adverse effects on the resource while
still allowing development of the property. (bold for emphasis)
LFNA contests the City’s interpretation of the applicant’s proposal to connect to the closest
legally and physically available public sewer system located within West Waluga Park.
LFNA contends that this sewer extension route is neither legally nor physically available.
Applicant’s Exhibit F-005 Sensitive Lands Report from Pacific Habitat Services, Inc., states: “Alternative
and significantly different site plans and development locations on the subject site have been
considered. The applicant’s preferred alternative was initially onsite septic facilities on each parcel,
which would have entirely avoided impacts to the sensitive lands. As individual septic facilities are
categorically excluded from implementation under development conditions associated with the
current application, the applicant is required to connect to the City sewer.
The requirement to connect to city sewer as codified in City Code under LOC 50.06.008.3 for this project
was clarified in a memorandum dated March 30, 2021, from Evan Boone, City Attorney Pro Tem, to Todd
Knepper, Engineering Program Supervisor, and Jessica Numanoglu, Planning Manager. The text of the
memorandum makes clear that it is the applicant's obligation “to connect to a sanitary sewer main,
rather than a septic system or other form of alternative septic syste m”.
Further clarification in the memo included the following: 1) Sanitary sewers shall be installed to serve
the development and to connect the development to existing mains . 2) Design shall take into account
the capacity and grade to allow for desirable future extension beyond the development , and where
required by the City Manager, extended to the upstream property line to allow for such future
extension, and 3 ) All sanitary sewers and appurtenant structures shall be designed and constructed in
conformance with City Engineering Division policies, design standards.
Upon clarification provided in the memo that onsite septic facilities would not be approved for this
application, alternatives for connection to the city sewer system were investigated. Based upon
available mapping of the City sanitary system the only two locations of existing pipelines whereby the
applicant could feasibly connect to the system include City sewer located in the Baleine Street right-of-
way approximately 300 feet west of Kimball Street, and an existing sanitary manhole located in Waluga
Park east of this site. As the existing sanitary system to the west is uphill from the proposed
development, it would not be possible for sanitary drainage from the development to discharge to
that section of the existing sanitary system.
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Ultimately, direction from the City was that the only option available to the applicant to connect to
City sewer was the existing manhole in Waluga Park. City engineers and staff were directly involved in
determining the location and general route of the sewer extension as proposed in this application. In the
fall of 2021, the applicant met on site with representatives of the City's parks and engineering
departments to discuss the necessary sanitary pipeline route. Representatives of the City and applicant
walked the approximate alignment through the park east from Inverurie Street to the existing manhole.
As field work for a wetland delineation within Waluga park from Inverurie Road to the existing manhole
had already been completed by that time it was known that the entire length of the sanitary line in the
park would be in wetlands.” (bold, italics and underlining are provided for emphasis pages 1-2)
LFNA understands the conditions that City management and engineering placed upon the
applicant. The concern here is with the City’s impositions. Upon review of LOC 50.06.008
3.b.ii (3) Utilities; Streets/Sidewalks (Pathways) and Other Public Infrastructure, Standards of
Approval, Designs and Specifications Required, Sanitary Sewer states: “Upsize inadequate
sewer lines when needed for adequate sewage flow from the development per accepted
engineering standards”. Further, under e. iii. City Engineer Reduction or Elimination states:
“The City Engineer may reduce or eliminate the specific utilities …of this subsection 3 upon
a finding that: “The required utilities….must be reduced because the requirement would
exceed the rough proportionality legally permissible, considering the factors listed in
subsection 7.b of this section to the extent stated in subsection 7.c of this section.
The staff report says: “As a condition of annexation and precedent to development on the lots, the
owner is required to extend the public sewer main from West Waluga Park to the lots, and the proposed
development is premised on extension of the sewer main. Accordingly, as extended, sewer service will
be “legally and physically available” to the lots as defined in OAR 340-071-0160(4)(f)(A).” (bold and
underlined added for emphasis, page 20)
Annexation of the property was conditioned on the applicant executing a “Covenant to Construct and
Connect to City Sewer Line” (pages 18-25 of Agenda Item – 2022-03-17 – Number 9.3 – Ordinance 2874,
Annexing Property at Kimball and Baleine Streets and adopting findings for AN 21-0003) The subject
property was annexed effective 4/16/2022 after the property owner executed the covenant (signed
2/21/2022).
This bolded staff statement is interpreted by LFNA to establish the legal and physical
availability of the sewer AFTER it is extended. However, prior to the extension, LFNA
contends that the sewer is neither legally nor physically available. The DRC must examine
this and other criteria for sewer extension when it considers LOC 50.05.010.4.e-f.i. Also, OAR
340-071-0160(4)(f)(A) and (B) applies to this sewer extension.
OAR 340-071-0160(4)(f)(A) states:
“Physical availability. A sewerage system is considered available if topographic or man-made
features do not make connection physically impractical and one of the following applies: (ii)
for a proposed subdivision or group of two to five single family dwellings or other
establishment within the equivalent projected daily sewerage flow, the nearest sewerage
Page | 12 of 18
connection point from the property to be served is not further than 200 feet multiplied by
the number of dwellings or dwelling equivalents.” (bold and underline added for emphasis)
The Covenant document shows that the proposed sewer extension is actually in excess of
1000 feet (200 feet times the 5 proposed lots, or dwelling equivalents). The drawing
depicted in the Covenant shows: 260.11ft + 287.19ft + 287.90ft + 287.90ft + 472.77ft or
1595.87ft. The requirement for this application is less than what is depicted in the covenant,
as the extension is only required to the upstream boundary of Tax Lot 2902. However, the
extension is still in excess of 1000 feet (approximately 1432.5 ft as the Kimball portion of the
extension would be approximately 309.4 ft (97.23 + 97.22+114.95) instead of 472.77ft using
Exhibit E-005 to estimate the lot widths on Kimball).
The staff finding that this sewer connection is physically available is not consistent with
OAR 340-071-0160(4)(f)(A) as this extension is considerably longer.
OAR 340-071-0160(4)(f)(B) states:
“Legal availability. A sewerage system is deemed legally available if the system is not under a
DEQ connection permit moratorium and the sewage system owner is willing or obligated to
provide sewer service.”
The City neglected then, at the time of annexation, and continues to neglect now to take into
account the City’s Charter Chapter X. Park Development Limitation when ascertaining
whether the proposed sewer connection in West Waluga Park is in fact “available”.
The Council Report for Ordinance 2874, Annexing Property at SW Kimball and SW Baleine
Streets. (AN 21-0003) 11-02-2021 (page 3) states:
“The Parks Department has been consulted about the location of the sewer line through this
park and recognizes that its location is consistent with the sewer master plan and that it is in
the public interest to construct the sewer line in this location.” (bold and italics added for
emphasis)
Upon passage of Measure 3-568, on Nov. 2, 2021, the City of Lake Oswego had an obligation
to the voters to assess the impact of City’s Charter, Chapter X, Parks Development Limitation
Charter Amendment on Lake Oswego Master Plans including the Wastewater Master Plan.
The Parks Department erred when it stated that this sewer line through the park was in the
public interest – especially in this location as a protected Nature Preserve per the City
Charter and as a protected wetland.
The staff report advises that “The existing public sanitary sewer systems located to the west near Allison
Place and to the southeast along Inverurie Road are too shallow to serve the development site and the
properties to the south along Kimball Street. In order to provide gravity service for the site and beyond,
the public sanitary sewer extension must be constructed following the alignment as shown in WMPU
Fig. 6.14.” (page 20-21, bold and italics added for emphasis)
While it is understood that sewer extension is complex and requires engineering expertise,
shallowness is a specification that can be remedied in this case by potentially changing the
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depth of an existing system or main. One option, allowing avoidance of the sensitive land,
would be to deepen the main that currently exists on Baleine Street so that sewer extension
for this proposed development would be from the upstream boundary of the property on
Kimball Street to that main, a considerably shorter distance and in accordance with OAR 340-
071-0160(4)(f)(A)(ii). The existing manhole on Carman Drive at SW Parker Road is at a depth
of 5.36 feet (LO Maps SMH00102) compared to the depth of the manhole on Baleine at
Allison Place which is at a depth 3.73 feet (LO Maps SMH00101). It is not clear that this
cannot be modified to create gravity flow, the most desirable condition. However, even if
requiring a pump, this option should be considered to avoid the wetland.
The staff report says: “Even if future residences on the lot were eligible for an alternative sewage
disposal system under LOC 38.20.315, subsection 2 prohibits use of a STEP system.” (page 20, bold and
italics for emphasis)
LOC 38.20.315 Alternative On-Site Wastewater Treatment Systems says:
“1. This section applies to buildings and structures that are either not required or are
exempted from the requirement to connect to a City sewer line by LOC 38.18.305(1)(a) (1)(c)
or (2) and permitted to connect to an alternative system.”
LOC 38.18.305 Connection Required if Sewer Available; Exception says:
“1.a. Single-Family Dwelling. A single-family dwelling located within 300 feet shall connect to
an existing City Sewer line or main unless (i) exempt under subsection (2) of this section, or
(ii) the City sewer line is not legally or physically available (as defined in OAR 340 -071-
0160(4)(f)(a), in which case the single-family dwelling may connect to an alternative system
pursuant to LOC 38.20.315.
1.b. Land Divisions. All land divisions for structures or buildings normally used or
inhabited by persons shall connect to an existing City Sewer line or main.” (bold added for
emphasis)
The code references here are silent on exceptions for land divisions if a sewer line is not
legally or physically available. It is LFNA’s understanding that no exceptions exist. The City
made changes to this code LOC 38.20.315 (March 17 2022) prohibiting STEP systems through
Ordinance 2890 which coincided with the annexation vote for this property. If the City
hadn’t enacted this ordinance, would STEP systems have offered a legal option to avoid
extending this sewer through the RP district and Waluga Park? The notes for this in
Ordinance 2890 say: “These code amendments would require a connection for land divisions
regardless of the distance or “legally and physically available” DEQ standard allowing
septic systems, as is the case today per LOC 50.06.008.3.f.” (page 5 of Agenda Item – 2022-
03-17 – Number 6.2 – Ordinance 2890- Clarifying, Revising and Updating the Lake Oswego
Code, bold, italics and underlining added for emphasis). This citing, enacted by changing the
City’s code, contradicts the language of “legally and physically available” that is used to justify
specific sewer extensions – including the one for this application. The City seems to be
creating in code the circumstance that no code really applies – it is the discretion of the City
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Engineer – and they alone decide what is too far for extending a sewer. The question before
the DRC is whether the Sensitive Lands Overlay District Avoidance Criteria will be used here
to require that this development be allowed to connect to a closer sewer main that can be
deepened to create gravity flow thereby avoiding the wetland (one that is otherwise
physically and legally available to the property) or allow another viable option. On page 8
of the previously cited Agenda item 2022-03017- Number 6.2 et.al: “Another viable option
the City would like to promote is individual grinder pumps rather than septic systems.
Grinder pumps are less expensive, require less room than a septic tank, and can be easier to
maintain than septic systems.”
When the City conditioned the annexation of the properties on extension of the sewer line
through the currently proposed route, they did so by acknowledging that the sewer extension
would also need to meet other land use criteria, specifically citing the Sensitive Lands Overlay
code:
During the hearing for annexation (City Council meeting on 11/2/2021 on Ordinance 2874)
the City Planner, Paul Espe said (approximately time stamp 13 minutes into the meeting):
The owner…”would provide guarantee of sewer availability and then all necessary land use
approval for the sewer construction including those under sensitive lands overlay district
would also need to be obtained before they start, or commence, construction of the sewer
line. The sensitive land overlay ordinance provides all sorts of mitigation measures and
alternative modes by which they can construct the sewer to minimize any damage to the
existing resource such as boring beneath the surface or doing other kinds of mitigation
measures to minimize any kind of potential damage to the resource that the sewer can
cause.” (LNFA asks that the AV Recording for the Nov. 2, City Council meeting be admitted
into the record for this appeal).
As this statement and other statements at the meeting indicate: the Avoidance criteria under
LOC 50.05.010.4.e-f(i) were not examined as land use criteria before the City Council at that
time. It is however incumbent upon the Development Review Commission to consider it now
upon appeal. The applicant has not met its burden of proof of options which is not surprising
considering the City left them no option by conditioning a physically distant sewer extension
(technically speaking not “physically available” due to that distance) and binding the
developer to what the City wanted – regardless of the City’s Charter Chapter X. Park
Development Limitation (creating what is arguably “legally unavailable”).
The City’s policy of requiring this expensive, and environmentally objectionable sewer
extension, on the sole basis that it specified in a Wastewater Master Plan neglects to
account for other options in accordance with Avoidance criteria because the extension has
been dictated by the City. The applicant’s “Covenant to Construct and Connect to City Sewer
Line” (previously cited) specifically says: “…the Owner waives any right to seek approval of
an alternative sewage disposal system, including the right to seek exemption from the
requirement to connect to the City Sewer System.” (bold and italics added for emphasis) The
City created a situation that prevents the applicant from considering an alternative because
the City predetermined it to be the most practicable option at the time of annexation, even
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though land use criteria were not applied at that time. This action by the City is in violation
of the Avoidance criteria of the Sensitive Lands Code (LOC 50.05.010.4.f.i).
It’s important to note that applying the current Wastewater Master Plan, which has not been
updated to account for new City’s Charter Chapter X. Park Development Limitation or new
middle housing code may be inadequate to provide for the future sewer infrastructure needs
within the urban services district.
City Charter: Chapter X Park Development Limitation
Previously submitted (in Exhibit G-516) “Position 1: Lake Forest NA finds that extending a
public sewer through Waluga Park-West violates the City Charter, specifically Chapter X
Park Development Limitation.”
Neither the applicant nor the staff have addressed Chapter X Park Development Limitation of the Lake
Oswego City Charter. Section 41 Purpose states:
“The purpose of this Chapter is to preserve all designated Nature Preserves that are owned by the City
of Lake Oswego, inclusive of the fifteen natural parks specified in this Chapter, as natural areas for the
enjoyment of all residents of and visitors to Lake Oswego . This chapter shall be interpreted liberally to
achieve this purpose.”
Section 42 Definitions states:
“Nature Preserve means natural area parks or open spaces owned by the City of Lake Oswego that are
managed or maintained to retain their natural condition and prevent habitat deterioration. Nature
Preserves that are subject to limitations of this Chapter, which upon ratification will i nitially
include,…Waluga Park-West…”
“Waluga Park – West means the park land owned by the City of Lake Oswego which is commonly
referred to as “Waluga Park-West” (22.8 acres, more or less, to the East of Inverurie Drive, to the North
of SW Oakridge Road, to the West of Waluga Drive)”
Section 43 Limitations on Development states:
“The City of Lake Oswego shall insure that all development within a Nature Preserve is consistent with
the preservation of a Nature Preserve as a natural area available for public enjoyment.”
Removing trees and trenching to run a sewer line is inconsistent with the preservation of the Nature
Preserve. “Shall insure” requires the City to protect against loss, damage or injury to the Nature
Preserve. Trenching to extend a public utility is inconsistent with protecting the Nature Preserve against
loss, damage or injury. The City Charter is clear that this development is not allowed in Waluga Park-
West.
Additionally, Section 43 states (bold for emphasis):
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“The City of Lake Oswego shall not construct or develop (or allow any person to construct or develop)
any Athletic Facility, any Telecommunications Facility, or any parking lot, road, or trail for motorized
vehicles within a Nature Preserve. The City of Lake Oswego shall not cut (or allow any person to cut)
any tree in a Nature Preserve for the purpose of facilitating the construction or development of any
Athletic Facility, any Telecommunications Facility, or any parking lot, road, or trail for motorized
vehicles.”
The Lake Forest NA understands that to trench for the sewer requires the removal of trees, specifically
14 Oregon Ash trees of various sizes along the route within Waluga Park-West as shown in Appendix C
(including the table) of the applicant’s Exhibit 12 Tree Protection Plan revised (the figure and table below
are provided for reference). To create the construction zone would require a temporary “road” for
construction motorized vehicles. Per Chapter X, Section 43, as stated above, this activity is not allowed
by the City’s Charter.
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3. Tree Removal
Previously submitted (in Exhibit G-516) Position 3: LNFA finds that LOC Chapter 55 Tree
Code (55-02-010 to 55.02.084) conditions have not been satisfied for Trees designated
254, 294 and 296 permitting their removal.
Per the applicant’s, Tree Protection Plan, (page 11 Exhibit F-003) Tree 254 is a 13in (DBH) Douglas Fir
(Health 80% good); Tree 294 is a 27in (DBH) Oregon White Oak (Health 80% good); and Tree 296 is a
33in (DBH) Oregon White Oak (60%, Fair). See table below:
Per LOC 55.02.080 3. Removal of the tree will not have a significant negative impact on the character or
aesthetics of the neighborhood. This standard is met when removal of the tree(s) does not involve: a)
a significant tree or d) a street tree. (bold added for emphasis)
On pg. 34 of the Applicant’s Narrative (F-001), the applicant acknowledges that the trees are
“significant”: “Nine of the trees to be removed are significant (healthy) trees (trees of 15” dbh or
greater).” The relevant criteria here is whether the applicant has considered the applicable exceptions to
subsection 3. Specifically, has the applicant considered alternatives to the tree removal to allow the
property to be used as permitted in the zone?
LNFA agrees that two of these trees, 294 and 296, are significant (due to size) and the other, 254, should
be preserved as a street tree if an alternative consolidated access is required to be a street and will
replace the currently proposed two, side-by-side access lanes. As stated previously, LNFA is asking for
consolidated access for the property; this alternative could also work to preserve these trees.
Alternatives to the currently proposed sewer extension would preserve the trees proposed for removal
on the unopened and unimproved section of Baleine Street that abuts the properties, both inside and
outside of the RP district.
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The following figure is enlarged for reference from the applicant’s Site Plan (E-005) showing the location
of the trees in question: