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Rejected by voters twice, Icon Construction makes third try to build at the 17.5-acre Wesley Lynn Park

Oregon City voters have twice rejected the proposal for a subdivision development at Wesley Lynn Park, but the developer is now trying to get the project approved without a ballot measure.

PHOTO BY RAYMOND RENDLEMAN - Landen McMullen rides his bike at Wesley Lynn Park while his father David McMullen watches the dogs, Maggie and Edward, enjoy the off-leash area. Icon Construction proposes to build over the trees in the background.It would be West Linn-based Icon Construction's third try to build at the 17.5-acre park on Leland Road on the southern end of town. Since the developer lost the election by a mere six votes in May 2016, he thought he could get a different election result. For the Nov. 8 measure in which voters were asked to approve the same proposal, Icon Construction worked with Oregon City to rewrite the measure's explanatory statement in the Voters' Pamphlet to make it seem like a win-win public-private partnership in which "all improvements related to this measure would be made at the sole cost of the neighboring property owner."

Oregon City voters then rejected the developer's proposal for a subdivision at Wesley Lynn Park by an even larger margin, 51.18 to 48.82 percent, in November 2016.

Oregon City Community Development Director Laura Terway said part of the developer's latest proposal would still construct on the Wesley Lynn Park site. The development proposed a concrete walkway on the park side of the street, where there's currently a hard-packed dirt path next to an off-leash dog park.

"We know that our charter limits the use of parks, and if you do certain things in parks, it requires a vote of the people, but we also know that this, a similar subdivision, went before a vote of the people twice and was narrowly defeated," Terway said.

Since that time, the city has received the developer's third application for a subdivision at the site.

"We have a legal burden to process applications in a certain way," Terway said. "The applicants required us to deem it complete even though as the property owner of the park we did not sign the application, and so we had to process it."

When the city noticed the application to the public, Terway reported receiving "a lot" of feedback, mostly about whether the charter amendment is needed.

This was a concern for City Commissioner Renate Mengelberg at the Aug. 16 meeting in which commissioners agreed to call up the issue for review.

"Is there absolutely no way that the property owner can make this work on their own property and not impinge on park land?" Mengelberg asked. "That would make this all go away."

Darren Gusdorf, general manager with Icon Construction, has previously said that development of the so-called Parker Knoll subdivision at Wesley Lynn Park could proceed without constructing a full-width street on park property.

But Mengelberg wouldn't get an answer to her question. Oregon City's attorney said city officials couldn't open the record to answer questions about the issue, because it was not before them to open on Aug. 16. The developer found a way to force city commissioners to hold a special hearing on the charter issue, either by the City Commission's Aug. 16 consent or through a threatened appeal process.

"We don't want to give you more information unless you decide not to do this [hearing], and then you receive it on appeal," Terway said in summary of the city attorney's position.

"The attorney was not wanting to broach any details before going through the process, which was frustrating, but I understood we have to go through the correct process," Mengelberg said.

In a description of the developer's request for a hearing, Terway said that the applicant has "revised the design to include a public road within a portion of the easement as well as a concrete path, both within and outside of the easement area, which they believe is authorized by the easement and does not require voter approval."

The Parker Knoll Subdivision developer has hired its own attorney who has for more than 25 years focused on obtaining land-use approvals and highway access permits for commercial, residential and institutional development. Michael C. Robinson wrote a letter to the city saying that the City Commission has the legal authority to call up the issue before Terway has made a decision, even though the municipal code has no provision allowing the city to circumvent a vote on city park land.

"Although such a call-up might be a procedural error where the city's code does not authorize and prescribe such a process, the Oregon Land Use Board of Appeals has held that procedural error is not a basis to reverse or remand a local government's land-use decision unless the procedural error prejudices the ability of an opponent of the decision to prepare and submit their case against it, and to receive a full and fair hearing regarding their opposition," Robinson wrote.

Mengelberg and other city commissioners agreed that it would make more sense for elected officials than city staff to interpret the charter's requirement for public parks. However, it would be a politically dangerous move to overturn the will of citizens, as shown by two elections.

"I personally would hesitate to make a decision that would go against the will of voters twice," Mengelberg said. "I would weigh the voters' decision very heavily in my deliberation."

Wesley Lynn Park was purchased by the city from the school district in 1998 using system development charges collected from new development in the southern part of the city. The city has considered putting a parking lot for the park at the current dog-park location. But because the city doesn't have this park access point in its budget, Gusdorf said that he volunteered to complete full right-of-way improvements (which include curb, gutter, sidewalks, planter strips, and street trees) at the expense of Icon Construction.

While walking his dog recently at the park, David McMullen said he didn't want the developer to change how people were using the park.

"This is the best area for off leash in Oregon City, and I would personally leave it just as it is," McMullen said. "There are none of the problems associated with a subdivision currently and you can just walk down this path without walking in front of some weirdo's house."

Terway said that an advantage of the having the City Commission call up the hearing is that there will be more opportunity for public testimony than there would be for a regular subdivision. Written testimony will be accepted until Oct. 18, when people will be able to speak in front of city commissioners. City commissioners are also planning to hold a work session on Sept. 12 to discuss whether they can legally make a decision regarding park land without the consent of voters, given the requirements of the city charter.

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