In the minutes before Monday's West Linn City Council meeting, as residents concerned about a development proposal at Upper Midhill Drive continued to file in, there were murmurs about whether this would indeed be the last night of debate on the matter.
Ultimately, that wasn't to be; after four hours of testimony from various stakeholders in an appeal of the West Linn Planning Commission's decision to approve a 34-lot subdivision of single family homes at 18000 Upper Midhill Drive, the council opted to continue the hearing May 18 — in part to allow time for a solution to a crucial debate over what evidence could be included in the record of the case, and thus considered in the council's final decision. Attorneys for the applicants took issue with a number of points made throughout the hearing that they felt were outside the scope of what was discussed at the planning commission earlier this year.
"No one was on fair notice that any of the things we spent two-and-a-half hours on tonight were going to be considered," said Michael Robinson, an attorney with the Perkins Coie firm that represents the applicant.
The public hearing Monday was intended to address an appeal of the March 22 West Linn Planning Commission decision to recommend approval of an amended application submitted by the developer, Ryan Zygar of Tamarack Homes. The appellants, residents Jason and Jessica Harra, challenged the planning commission's 4-3 approval vote with four articles of concern related to the timeframe of development, potential geological issues on the site, impacts to bike lanes caused by traffic mitigations and how the site will be managed "after the developer walks away from the lots."
The applicants, meanwhile, revealed new mitigation proposals that were intended to address some of the concerns that popped up at the original 2016 hearings. If the project was approved, the applicants promised to construct a new northbound left turn lane at the intersection of Arbor Drive and Highway 43 while also paying for a portion of the City's Highway 43 Multimodal Transportation Project. The project would also include road widening and the addition of 90 feet of sidewalk on Hillside Drive, which runs parallel to Upper Midhill Drive.
Early in the hearing Monday, City staff addressed the four points made in the Harras' appeal. According to Associate Planner Peter Spir, only the point related to bike lanes was something that could legally be addressed by the council — and staff still recommended that the council deny all four grounds of appeal, thus upholding the planning commission's decision.
While technically a West Linn address, the site also sits on the border of Lake Oswego near Marylhurst University
From the outset, residents expressed concerns with infrastructure, traffic, density and preservation of the natural area of the property. The applicants countered that the proposal was sound and would actually result in the minimum amount of homes allowed under the property's R-4.5 zoning.
Both the planning commission and City Council voted to deny the original proposal in 2016, citing continued concerns with safety on an already congested and aging Highway 43.
In the months following that decision, the City found itself in a difficult position when the developers threatened two possible responses: an appeal at the Land Use Board of Appeals (LUBA) and a new proposal for 41 townhomes that would be evaluated at the state's Expedited Land Division.
At the applicant's suggestion, the council opted for another route in reconsidering the original application.
Jason Harra, the appellant who lives next to the property, stated that he and his wife hired an independent traffic engineer who found issues with the study done by the applicants — in particular, Harra said that the estimated 1 percent annual traffic growth rate was low and did not appear to be substantiated in a convincing manner. He added that the new mitigation proposals would narrow the shoulders of Highway 43 to a dangerous degree.
"The issue is there are no sidewalks on Highway 43," Harra said. "All pedestrians are using the space, which is now wide and would be narrow under the proposal."
Harra's wife, Jessica, added that there are an estimated 63 children in the neighborhood surrounding the proposed development, and that safety was of utmost concern.
"All of the children in the proposed development will be using those streets as well," Jessica Harra said. "We do not have the facilities to accommodate a development of this size."
Arguing on behalf of the applicants, attorney Seth King emphasized that the application proposed the lowest possible density for the property while also including projects that would make the roads safer.
"Willamette (Drive) and Arbor (Drive) will be safer and function better than under current conditions," King said.
He also echoed Robinson's sentiments about the inclusion of new evidence.
"You heard nearly 20 minutes of testimony tonight (from the appellants)," he said. "Very little addressed this bike lane issue."
The applicants also called on Matt Bell, a traffic engineer with Kittleson and Associates, to explain the traffic study that was performed. Bell emphasized that the study was approved by the Oregon Department of Transportation as well as the City of West Linn and other engineering firms.
Public testimony largely came down against the project.
"If surrounding neighbors all had a few hundred thousand dollars to hire attorneys, traffic engineers and consultants, we could easily generate reams of legal documents showing why this development should not be approved in its current format," resident Scot Chandler said. "But we don't have that kind of firepower. So we rely on you to cut through all of the deflections."
Zygar, meanwhile, personally testified in favor of his project.
"I'm fixing something that's failing in your city," Zygar said. "And now I'm listening to things that are very off base, and it's frustrating because this is a tremendously wonderful project. … Supporting growth is a wonderful thing. It really is."
When the time came for the applicant's rebuttal, Robinson said this could not happen until the record was resolved. He added that, while he admired the council's willingness to hear all testimony, in so doing it had complicated matters by accepting testimony that was potentially outside of the written record established at the planning commission hearings.
The appellants, meanwhile, argued that they were not presenting new evidence but rather a reevaluation of existing arguments and data.
As the clock neared 11 p.m. — when video and audio outputs automatically shut down at City Hall — the council decided to continue the hearing at 5 p.m. May 18. The dispute over the record is expected to be resolved by that point, after City staff and attorneys have had a chance to determine what can be considered in the council's decision.