Document text
Oral Argument 2026-020 Anderson v. City of Lake Oswego
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=NpSbjc1o23o). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
I think it eventually adjusts. There we go. Well, it looks like we have everybody here. So, is that Miss Is that you on >> Yes. >> Okay, great. Thanks. >> All we see is a number, but uh it's good to know that that's you. Um all right. Uh this is the time set aside for oral arguments in Anderson versus the city of Lake Asiggo. The file number is 2026-02. I am board chair Wilson. Board member Bassam is also present. Board members Moodio will be watching the oral argument and participating in the decision. Um please mute your audio when you're not speaking. Uh, I'm not aware of any pending motions. Although, Miss Miller, we do need a notice of representation from you so that you're officially the uh council for the the city. So, if you could just send that in after argument, that would be great. >> We will do that. Thank you. >> Thank you. Um, Miss Anderson, I'm assuming this is your first time at uh at LUBA. Is that correct? >> Yes. >> Okay. So, maybe a little overview of what's going to happen today might be helpful. Um uh what'll happen is each side gets 15 minutes. Uh you'll go first, the respondent and the city, the intervenor and the the city will go second and you get to go last since you're the petitioner. So you can reserve some of your 15 minutes for your rebuttal where you go last. People generally reserves 3 to five minutes for that. So anything like that would be good. Um this is just a chance to argue about what's in your brief. Uh, it's not a time to make new arguments or argue about things that aren't in your brief. Uh, it's just one side talking then the other side talking. It's not like Law and Order where people are going to be cross-examining or jumping up and objecting or anything like that. So, you'll get your chance, they'll get your chance, then you get to finish. Um, uh, do you have any questions before we begin? >> Um, no, not really. >> Okay, great. Um, with that, we will get started. Um, petitioner, you will have 15 minutes. Would you like to reserve some of that time for rebuttal? >> Sure. >> Um, three minutes, five minutes. >> Um, let's say five. >> Okay. Five. Um, uh, please try to keep track of your own time. I'll try to keep track of it, too. We've got a clock going, but that that started when we came on, so you'll be starting about three minutes if that'll be helpful. but I'll try to keep track too. Um, so with that, um, please state your name for the record and begin. >> Okay. I just want to thank everybody for being here. Um, like you said, my name is Leah Anderson. I'm a proay practitioner in this case and definitely not a lawyer and I'm don't have my ducks in a row, [laughter] so bear with me. Um, so I live at 14223 Amberwood Circle and like us we go. And I also have 11 and a half immediate family members that live within 2 and 1/2 miles of 4,000 Cruiseway Place, including my 98-year-old mother-in-law who lives across the street at the Springs at Lake Oiggo at 3900 Cruz Place where her window faces the proposed construction. Um, this is probably the last place to tear down a perfectly good reusable employment building. Um, 4,000 cruise way place sandwiches two adult community centers, not just one, but two. And my computer just went out. [laughter] Um, and as a community as a whole, we every we should do everything we can to protect our most vulnerable and defenseless at their end stage of life. These people are going to die there and they don't need to see construction in their backyards, in their front yards. Um, emergency vehicles are in and out on this road daily. Um, and that is the only outlet for this proposed high density housing. Um, just to be clear, I'm not opposed to development and it um, but I do believe that it would remove employment um, property has more congested in an already congested area. Uh not to mention that Daniel Way has 10 mph to 90 degree turns where the residents have stated that they've had frequent accidents and nermises every day. Um my case I would have not done this case if I didn't think that the city did wrong. Um the first argument was the transportation planning rule that the city must determine whether there will be a significant effect on the conditions at the end of 2040 planning period. Um the engineers Nettlesen projected an 880 additional trips. That table is on one page 0676 of the record and that is a 27% increase. The city findings talk about peak hour traffic. Um the rule doesn't say peak hour. The rule says daily trips. the applicant. Um, also I don't I'm sorry. The city baseline assumes 606 units, but look at E006, the applicants own plan site on page 132 of the record shows 450 units. That's 156 units that the city used. the city made up a higher unit count. Ben said the impact wasn't significant. >> If I understand the respondents um argument, they actually took into account more units than there probably will be. So if it's if it's okay, I know you don't think it is okay, but if it's if it is okay with the 600 and some units, why wouldn't it be okay with less It's a problem because as we wait that but it's wasn't the rule. They didn't follow the rules in the training in the planning rule. It's there will be a significant effect >> in in getting to the significant effect. Um I understand you to be arguing that there's going to be a quite a few more average daily trips and then the intervenor the city are saying well that's not how we measure significant effect. It comes down to how many peak hour trips there are and they're actually going to be less peak hour trips. So why why can they not uh measure significant effect that way and have to measure it the way you want them to measure. So the um EDM measures are hypothetical. They're conditioned on future development reviews. Um and that's a deferral problem. >> Okay, I didn't mean to interrupt. You can continue. Um um sorry. How much time do I have? Do you >> Oh, you still got like four to five The and on the um second assignment, the comprehensive plan requires the city to promote connected communities. Policies A7 and C6 say neighborhoods should be walkable connected places. At the reszone stage, the city must make findings on how this 12 acre highdensity zone connects with the rest of Westlake. It didn't. um looked at the findings on page 105 and 106. They say the future development review that um lament oaks you can't defer the central mitigation conditions. My testimony at the planning commission specifically raised this and how it connects to cruise way and Boomsberry Road. How do residents walk to the marketplaces and can you approve a big residential zone without answering the questions up front? Future isn't an you can yeah you just can't kick it down the road. It needs to be happening at the review. Um the deferral of essential conditions where you can't tell if the reszone complies with the plan. Um that's where the Wamtt Oaks problem comes in. And then with the three sisters buffin pro um projection uh that was consens conceptual not binding and like I said that there's a 10 m an hour two 90 degree turns on that road that will send any new residents through that small road where they don't and have Um, comments. >> Okay. Um, I just want to clarify on your second assignment of AR, I think it says that it they you're saying the city violated statewide planning goal five, but I think you meant uh one of the city's comprehensive goal fives. Is that is that correct? >> Um, probably. Yes. >> Okay. All right. Um, unless we have any other questions. Um you'll you'll have uh six seven about seven minutes left for rebuttal if you'd like it. Um all right now turning to the uh the city and intervenor. Uh have you worked out how you want to split up your time? >> Yes, we have. Chair Wilson. Um I'll be speaking on behalf of the uh respondents and the city has agreed to seat their time. >> Okay. Well, great. Well, you will have 15 minutes and if you'll just state your name for the record and begin. Thanks. >> Great. Uh so good morning chair Wilson and um board member Bassam. My name is Haley Silman with Stole Reeves uh for intervenor respondent Cruay LLC and Cruay and respondent city of Lake Asiggo filed a joint response be response brief and I will be speaking to that brief today but I do um the city's attorney Souvene Miller is also in attendance and she's available to answer any questions regarding the adequacy of the city's findings. So, our response to petitioners arguments are fully briefed, but I'm going to just try and succinctly summarize the arguments in our response brief um and hopefully keep it short and useful. So in sum the board should affirm in this case for three reasons and the first here is that petitioner did not preserve the technical issues that are now presented before the board and several of petitioner's arguments are not uh sufficiently sufficiently developed. Second, the premise of petitioner's main argument under the first assignment of error concerning the transportation planning rule is incorrect because the TPR analysis that was incorporated by the city separately addressed all three components of the significant effect test under the transportation planning rule. And third, the remaining assignments of error confuse um plan level feasibility with project specific review that will occur once specific concrete development is proposed. So I'm going to focus primarily on the first assignment of error and then I will briefly address the second and third assignments of error together unless the board has questions. Um so beginning just with uh preservation as a threshold issue OS 197797 requires the issue not just generally the topic to be raised with enough specificity to permit the local government decision maker and participating parties to respond. And the purpose of the preservation is to prevent unfair surprise by allowing decision makers to understand the nature of the issue that's being raised. And that's relevant here because petitioners made several technical arguments that could have um been directly addressed below if they had been raised. Um the testimony before the city raised generalized concerns about traffic congestion and safety which um Miss Anderson has kind of reiterated this morning. But none of that testimony cited the transportation planning rule or challenged any of the meth methodologies or assumptions in the transportation planning rule that was rule analysis that was adopted by the city such as the use of peak hour trip generation as opposed to average daily trips. And you know, petitioners now had an opportunity to point to such testimony with, you know, more specificity, but has hasn't done so. And we also haven't found anything more specific in the record. And similarly, the goal 5 testimony, it concerned um oak woodland and habitat generally, but didn't address the operative subjects of uh comprehens comprehensive plan goal 5 resource policies that petitioners cited. And likewise, the connected community testimony did not raise the particular challenges that are now before the board. So for those reasons, petitioner's arguments are not preserved. If the board reaches the merits, however, each of the assignments of error still fails. So moving to the first assignment of error, petitioner makes four arguments concerning the city's transportation rule analysis. And I'm going to just kind of step through those in the order that they're made. So petitioner's first argument concerns the three-part test for significant effect under the TPR. And petitioner says repeatedly that the city only considered a peak hour trip generation and she and that the city failed to address the three separate components of that significant effect test. And this argument is based on I understand this argument to be based on the reading of one paragraph of the planning commission staff report and that's at uh the staff report is at two places in the record I'm citing to record 843. So reading that paragraph in isolation and ignoring applicants TPR analysis which is attached as an exhibit to the staff staff report and which the city you know expressly adopted and incorporated as part of its decision findings. So the TPR analysis that was adopted by the city separately considered subsections 1A 1B and 1 C of the TPR significant effect test. The incorporated analysis found first with respect to subsection 1A that the proposed plan amendment and zone change do not warrant any any change to the city's functional street classifications. And then with respect to subsection 1B that the plan amendment doesn't change any standards that implement the city's functional street classification system. And then finally with respect to subsection 1C, it compared reasonable maximum development under the proposed zoning and found fewer peak hour trips under the proposed zoning as compared to existing zoning, which supports the conclusion that the plan amendment would not result in travel that's inconsistent with the functional classifications or that degrades system performance. So in short, there's no question that the city looked at all three components of that significant effect test. um as required by the transportation planning rule. >> Could you maybe just explain how you how the city looks at the uh peak hour trips versus average daily trips and determining significant significant effect? >> Yeah. Um, so that issue didn't come up below, but it is stated in the city's transportation system plan that they that peak hour trips are used as the um generally used for evaluating performance based on traffic volume. >> Okay. >> And that's and yeah, that was reported in the TBR analysis. >> Thank you. And then the second argument in petitioner's first assignment of error um is that the city and u Miss Anderson repeated this today is that the city improperly deferred the significant effect determination. And this uh I think is relying on a sentence in the TPR analysis that states and this is um record 949 that states any future development proposal will require a separate analysis of traffic operations which will be reviewed through the city's development review process. And so I think this is just a bit of a misunderstanding in the argument. The significant effect determination in this case was not deferred. The city made findings that were adopted as part of its decision that the plan amendment and zone change quote do not significantly affect a transportation facility as demonstrated in the TPR analysis. And so what remains for later review is just the traffic analysis of an actual concrete development proposal which will occur under the city's development review standards. And so, Wamtt Oaks um basically states that, you know, it requires addresses postponing um currently required compliance uh determination. And that's just not the case here because the city did expressly find no significant effect while acknowledging and recognizing that later specific development will be subject to So moving on to the the third kind of subargument and petitioner's first assignment of error and that uh addresses the city's TPR findings and argues that those are inadequate. And so in this case, as we've kind of touched on, the city found that the proposed plan amendment and zone change will result in a decrease in AM and PM peak hour trips. And under TPR, existing zoning is kind of the lawful baseline. and the city's transportation system plan already plans for trash transportation demands associated with that baseline. And then because the proposed zoning um reasonable maximum development generates fewer trips during the periods in which the city evaluates facility performance, the city determined that the plan amendment will not degrade the performance of transportation facilities for the purpose of TPR. So I in short, you know, the only evidence we have in the record is that the proposed plan amendment will reduce traffic during the times when the city evaluates transportation facility performance. And based on that, there's um the plan amendment is not a source of performance degradation. And so the record clearly supports the determination the city's determination of no significant effect including the classifications of the affected streets um the unchanged transportation system plan standards and the lower peak hour trips you know so at minimum under OS 197 83511b uh the board should affirm the portion of the decisions that's you know clearly supported by the record and so then I'll wrap up with kind of the fourth subargument in the city's or in petitioner's uh first assignment of error and that goes to substantial evidence. And so in this case, petitioner has challenged kind of three three pieces here. Again, the cities of peak hour the city's consideration of peak hour trips which we've discussed the 40,000 ft um medical office assumption and the 606 unit kind of reasonable maximum development scenario which um Mr. Miss Anderson raised earlier. And so I guess kind of getting back to the standard substantial evidence evidence asks whether the whole record would permit a reasonable person to make the finding. It does not ask whether and another assumption also could have been reasonable. Um so in this case regarding the city's you know reliance on peak hour trips, the city's transportation system plan as I noted states that mobility standards are defined for peak hours. um there was no argument made below that another metric should be used. And then similarly for the medical office assumption, the 4,000 foot medical office assumption, um there's no evidence that that building size is infeasible or is, you know, otherwise inconsistent with zoning and no arguments on that point were made below. And then finally the 606 unit kind of reasonable maximum development scenario that was used in the TPR analysis. Um petitioner argues that that scenario doesn't account for development restraints that exist in the resource protection overlay zone. But there hasn't been any argument about, you know, specific repairarian corridor, tree preservation area or other standards that actually prevent development of 606 units. And petitioner kind of points to, you know, argues, well, this 66 unit scenario is inconsistent with the numbers that are shown in applicants conceptual plan um that's attached as exhibit E006 to the staff the planning commission staff report. But the unit numbers in the used for the maximum development scenario and the TPR analysis and the conceptual plan don't need to match because they answer different questions. You know, the purpose of the conceptual plan was to illustrate one possible development scenario that complies with um development standards. Whereas the reasonable maximum development scenario is it does what it says is intended to you know show the highest possible kind of unit count. Um, and so it wasn't an error for the city to rely on that 606 number as a, you know, worst case scenario, if you will, for development. And I, you know, kind of as as a last note, um, as Cher Wilson, you pointed out, even if petitioner was correct, the 606 unit scenario is too high to prevail on traffic, the problem would kind of need to go the opposite direction. you know, in this case, if 66 units did overestimate residential intensity, then that that's a more conservative approach and it, you know, it makes makes this error harmless if there is one. Okay, so I'll just wrap up really briefly with the second and third assignments of error. Um, so they both the second and third assignments of error relate to provisions of the comprehensive plan and they make kind of the same basic error. They treat this proposed plan amendment as though it approves development. And so the plan amendment does not remove or in any way alter the resource protection overlay. Um the city's sensitive lands regulations remain controlling and require environmental re review setback avoidance minim minimization and mitigation when an actual development application is filed. And the city relied on the conceptual plan that was submitted by applicant just to show that future compliance is feasible. But again that will be evaluated at the time of future specific projects. And similarly the connected community findings rely on the lower peak hour trip generation and correctly recognize that project specific facilities and mitigation will be evaluated when concrete projects are proposed. So with that, I I guess I'll sum by saying, you know, the board here has kind of two paths to affirm. It can decline to review the technical TPR and policy arguments because they weren't raised below with sufficient specificity. Or it may reach the merits and affirm because the incorporated findings address all of the requirements in the transportation planning rule. The city's conclusions are supported by substantial evidence and the comprehensive plan goal five and connected community findings appropriately kind of distinguish this plan level decision from future project specific review. So respondents respectfully request the board deny all three assignments of error and affirm. And I got 50 seconds left, but that's enough unless the board has any questions. >> No questions for me. >> Yeah. No, no questions. Thank you. Um, all right, petitioner, you'll have uh six minutes left for your rebuttal. >> Okay. I just want um got a message that um DWL dowel um the developer plans to submit a land application for the city of Lake Asiggo in the next few months to develop the property. Um even though that this case isn't over, they're still going ahead on that. Um, I wanted to acknowledge that they were supposed to tell the residents next door within a certain number of feet about the property being developed and not one person at the Springs at like Weiggo knew about the property being developed. So, they had no say. They I'm I know that they talked to the um director, but the director didn't pass that information on to the residents. Um right now, >> I just just want to remind you, Miss Anderson, that we can only consider arguments that are in the brief, and I'm not if you're if you're spending your time talking about stuff that's not in the brief, you might be losing opportunity to talk about the other stuff. Thanks. >> Okay. So basically my concrete evidence is the city analysis is unreliable. Um the trip generation baseline is inflated because it's based on an unrealistic unit count. The city adopted findings using inflated traffic impact numbers and um this undermines their no significant effect conclusion. Um, I was present and I brought up based on the evidence in the record that a reasonable person could have adopted the findings and reached the conclusion. I am a reasonable person. I had never heard of us PPR before. I feel like I'm reasonable on not knowing that I needed to use those wordings. Um, let's see. The Nson analysis acknowledges average trips will increase. The city rested the entire conclusion on peak hour trips alone. No explanation on why the daily trip in increase is irrelevant to the rule's performance. Um, this proves the city did not fully analyze the performance under O 660 0120061C. If daily trips increased, the city could have analyzed whether that degraded performance at the end of the planning period. Focusing on only peak hours while ignoring daily trips is an incomplete analysis. Um the TPS methodology does not eliminate the requirement to consider daily trips. Daily trips increase significantly. That's separate performance impact the city didn't analyze. Um and they can't ignore one component performance just because of peak hour decrease. Um city should have made complete transportation analysis the plan amendment stage saying we'll check it later during development review doesn't satisfy the OR 660 0120060. Um, the case law you site says you can't Um, the question becomes, did the city actually make a significant plan level significant effect determination or did it leave open? Um, >> Miss Anderson, before you run out of time, I was just going to ask you if you wanted to respond to the respondent's argument that you didn't raise these issues below, or are you just going to rely on your brief for that? >> Um, I did raise the issues. I was at both two of the meetings. Um, and I I don't have it. Um the Thursday, January 29th, um I said that I I I did I'm sorry I don't have the exact um pages, but I did preserve both my rights on those. >> Okay. >> Where I can't find where I did it. Sorry. Um, and I guess I'm done. I, you know, if I, uh, one more thing, if I thought that I would lose, I would have not done a fight against Luba because it's not my idea of fun. Um, everything I said looked through said that I had a good possibility of winning this. So, wanted to state that. Okay, unless there are any other questions. >> No questions. >> Um, that will conclude oral argument. Um, Miss Anderson, we don't make a decision here today, but we'll issue a final written decision. Um, uh, our statutory due date for that decision is October 2nd. We'd ask, we anticipate doing it by then, but, uh, we'd ask the parties to agree to an extension no later than October 23rd in case we need it. Are there any objections to that? Um, oh, I would say an extension is challenging for intervenor respondents because of a um pending transaction schedule. Um, so I we would ask that the board stick to the October 2nd deadline if that's >> possible. >> All right. Do we noted? >> Apologize. >> Okay. Well, with that, um, that will conclude all our argument and, uh, everyone have a good rest of your day. Thank you.