G-630 Myers, LFNA Chair 12-26-2023 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* Kate
Last Name* Myers, Chair
Address Street Address
5750 Carman Drive
Address Line 2
City State/Province/Region
Lake Oswego Oregon
Postal/Zip Code
97035
Email* katemyers2011@gmail.com
Stance:* r Support
C' Opposition
r 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 This is the written testimony for the Lake Forest Neighborhood Association.
File Upload LFNA Written Testimony 12-26-2023 for LU 23-0002
1.34MB
AP 23-04.pdf
PDF format only
Additional Written Testimony Submittal for Lake Forest Neighborhood
Association, December 26, 2023
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
On December 18, 2023, Lake Forest NA submitted testimony into the record that included a memo that
had been previously redacted by Evan Boone. At the hearing, the Deputy City Attorney clarified that a
typo existed on page 1 and the code citing LOC 38.04.305 should be corrected to: LOC 38.18.305. Our
testimony shows this correction below.
To apply this new clarification to the issue raised on page 1 of Lake Forest NA written testimony for
December 18, 2023, specifically we revisit the following:
At the conclusion of the November 20th Hearing, Lake Forest NA requested a continuance to
pursue revealing the contents of a memo that had been fully redacted within a public records
request. The memo was made available, and we are submitting it now into the record. Should
this hearing be continued beyond December 18, Lake Forest NA may submit further written
comments that address the contents of this memo as well as others that Lake Forest NA have
submitted into the record (Attachments 1-12).
In this memo, dated March 30, 2021, Evan Boone (City Attorney, Pro Tem) sent the following to
Todd Knepper (Engineering Program Supervisor) and Jessica Numanoglu (Planning Manager):
“Question Presented: May a property owner bifurcate a building permit application process on
a lot that has a Sensitive Lands Overlay District, in order to avoid the applicability of the Utility
Standard (LOC 50.06.008) to bring sewer to the site even though it is more than 300 feet away
from the existing sewer main?
Answer: Yes. An applicant can first obtain a delineation of the resource (minor development)
and then submit a building permit application for construction of a dwelling located outside of
the delineated resource. By doing so, review of the dwelling is not subject to the Utility
Standard’s requirement to bring sewer to the site regardless of distance, but is then only
required to extend sewer if required by LOC 38.04.305 LOC 38.18.305.”
LOC 38.18.305 was included in the same March 30, 2021 memo on page 3.
“38.18.305 Connection Required if Sewer Available; Exception .
1. All structures or buildings normally used or inhabited by persons located within 300 feet
(measured by the length of the proposed sewer line from the subject property to its point of
connection to an existing sewer line or main) of an accessible City sewer line shall connect to
that line.
2. A person may apply in writing for an exemption from subsection (1) of this section. …”
The memo continues (bold included for emphasis):
“But when a new dwelling is proposed for construction on a site that contains designated RP, RC or HBA
lands, then the sensitive lands delineation and the proposed construction is reviewed together as minor
development, triggering the Utility standard for the dwelling construction and the obligation to bring
sewer to the site regardless of the distance.
The distinction between ministerial or minor development in this instance is to know if the proposed
construction is to occur within a delineated sensitive lands district.”
The memo states (page 2 bold for emphasis):
“However, if the new development is a ministerial development, then the Utility Standard does not
apply because the Utility Standard, a development standard, is not specifically listed as applicable
criteria for ministerial development; it would be included with the general applicability of development
standards to minor development.”
While Lake Forest NA understands that LU 23-0002 is a minor development application due to the land
division, specifically, a lot line adjustment; at the time the subject memo was written, March 2021, the
City of Lake Oswego had not yet made specific restrictions on the use of STEP systems or limited all
exceptions for sewer connection for land divisions. Below, Lake Forest NA provides the following
current code citation (38.18.305 b and c are bolded for emphasis) for reference. We can see how this
differs from March 2021. To provide further clarification, Lake Forest NA provides the language from
Ordinance 2890 (effective April 16, 2022) showing the new text (double underline) and stricken
(crossed out) changes affecting this section.
Lake Forest NA contends that the City of Lake Oswego has made sweeping and significant code
changes affecting THIS DEVELOPMENT within the timeframe associated with the applicant’s work with
the City (reportedly over a 3-year period – according to the applicant’s oral testimony on December 18,
2023). Further, Ordinance 2890 was never reviewed by the Planning Commission to fully consider its
impact on development – specifically on land divisions. City Council was informed at the time of the
public hearing for Ordinance 2890 – by staff, particularly the Deputy City Attorney - that it was not
“land use.” The following is an excerpt from the Approved Minutes for the City Council Meeting, for
March 17, 2022 pg 7 of 19:
It's important to note that in the crossed out section 3 of Ordinance 2890, the city has eliminated
language pertaining to “requiring a covenant or a condition to be recorded against the property
requiring connection at the time of property transfer.” Yet, the “Covenant to Construct and Connect to
City Sewer Line” for this property exists and was signed by the owner on 2/21/22 (Exhibit F-020 page
45) and Ordinance 2874 Annexing the property occurred under the City Council Con sent Agenda (item
9.3) the SAME NIGHT, March 17, 2022 (effective April 16, 2022). Lake Forest NA does not think this
timing is purely coincidental.
In conclusion, Lake Forest NA contends that the SPECIFIC TIMING of the Covenant associated with the
effective date of annexation (April 16, 2022) and the above Code Change (April 16, 2022) require the
DRC to remove it as a requirement to construct the sewer as routed through Waluga Park. The
applicant has not met Step #1 Avoidance per LOC 50.05.010.4.e-f.i. Sensitive Lands Overlay Districts.
The applicable code language for LOC 38.18.305 (at the time of the annexation) allowed STEP systems
as an alternative for properties where the sewer is not legally or physically available.
The staff has consistently acted to achieve this sewer extension – even modifying the code itself.
However, the extension can only be achieved by an approval in a land use process to meet LOC
50.05.010.4.e-f.i. The evidence shows that there was NEVER any intention to consider whether the RP
district was avoidable because actions were taken by staff to make the decision for the applicant and
for the DRC.
Lake Forest NA contends that the DRC can adjudicate the evidence presented that alternatives exist
and can achieve the housing proposed for this site while avoiding the RP crossing.
Current code language (after adoption of Ord. 2890 , bold, italics and
underline provided for emphasis )
38.18.305 Connection Required if Sewer Available; Exception.
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 and 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.
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.
c. All Other Structures. All other structures or buildings normally
used or inhabited by persons shall connect to an existing City
sewer line or main unless the City sewer line is not legally and
physically available (as defined in OAR 340-071-0160(4)(f)(A)), in
which case the structure or building may connect to an alternative
system pursuant to LOC 38.20.315.
The distance to the City sewer line or main shall be measured by the
length of the proposed sewer line from the subject property to its point of
connection to an existing sewer line or main.
2. A property owner may apply in writing for an exemption from
subsection (1)(a) of this section and provide such information as the City
Engineer may require to determine compliance with this subsection. In
order to obtain an exemption, the owner must demonstrate to the
satisfaction of the City that:
a. The lot that the existing structure is located upon is a legally existing
lot; this subsection (2) does not apply to existing structures on lots or
parcels being created by land divisions;
b. The structure is a residential structure containing only one dwelling
unit and is served by an existing alternative sewage disposal system of
the type permitted by LOC 38.20.315. ("Residential structure" does not
include a mixed residential and commercial use structure or a live/work
dwelling); and
c. The alternative sewage disposal system is in good working order
and is not creating or in danger of creating pollution or a health hazard.
3. The City Engineer shall grant the request for exemption from
connection if the criteria in subsection (2) of this section are met. The
owner may appeal the decision to the City Engineer.
4. A customer shall be required to hook up to the City sewer system if
the septic system or other alternative system is failing or the sewer
system lacks capacity for new additions to the dwelling, and City sewer
is:
a. Single-family dwelling: within 300 feet and is legally and physically
available.
b. All other structures: legally and physically available.
Otherwise, the customer may use a type of alternative system per
LOC 38.20.315. The failing septic system shall be abandoned in a
manner approved by the City Engineer.
(Ord. 2890, Amended, 03/17/2022; Ord. 2727, Amended, 11/01/2016;
Ord. No. 2057, Sec. 1; 06-29-92)
The following is provided from Ordinance 2890 in the Lake Oswego Municipal Codes (page 1 of 2):
The following is provided from Ordinance 2890 in the Lake Oswego Municipal Codes (page 1 -3):
Lake Forest NA enters into the record that we were informed of the staff error in the 120-day
deadline on December 18, 2023 at the time of the DRC hearing. The staff report lists the 120-day
deadline as February 12, 2024; at the hearing we were informed that the deadline is actually
December 26, 2023. Johanna Hastay, Planning Manager stated that the applicant was made
aware. As the appellant in LU 23-0002/AP 23-04, we believe this error should be communicated
through a corrected notice from the City.