Lake Oswego City Council votes to 'legalize' part of Boones Ferry Road
What does a city do if it suddenly discovers that one of its biggest thoroughfares crosses onto private property?
That's a dilemma the Lake Oswego City Council now has to resolve, because preparation work for the upcoming Boones Ferry Road project has revealed that the road, as it currently exists, doesn't align with its own right-of-way in one spot and cuts into three adjacent properties.
A right-of-way is a corridor of City-owned land on which public roads are built. They're typically wider than the physical road because they also include space for adjacent amenities like landscaping and sidewalks. When public roads are built or expanded, new right-of-way space often needs to be acquired from the surrounding properties.
"Usually with a public project like (the Boones Ferry Road project), when I'm trying to buy property for roadway widening purposes, I'll have an actual deed where the owners dedicate the right-of-way and are compensated," said Stacy Bluhm, the Boones Ferry Road project engineer. "And that deed is then recorded specific to their property."
Lake Oswego is currently in the process of acquiring new right-of-way before the Boones Ferry Road project begins construction in 2018. But when examining the property records for the area to determine the needed acquisitions, City staff discovered a problem with the existing alignment just north of Madrona Street.
Though the actual road continues in a straight line after passing through the intersection, the right-of-way abruptly skews to one side for about 200 feet and then cuts back. As a result, three properties appear to extend into the space currently occupied by the road.
"It's not even a curve — it's just a hard angle, and you obviously wouldn't build a road like that," Bluhm said. "And the road doesn't seem to have ever been built like that, per the aerial photos we found."
According to Bluhm, the error dates back to at least 1968, when Boones Ferry Road underwent a major construction project to add sidewalks. Lake Oswego had not yet annexed the road, so the project was overseen by ODOT and Clackamas County.
The design documents from that project show the road as it exists today, Bluhm said, which means the needed right-of-way was probably acquired for the project and the properties in question were clearly developed to match the road's existing location. But for some reason, neither City nor County employees were able to find records of the property transfer.
"The piece that we struggled with was not finding individual deeds," Bluhm said. "We feel pretty strongly that the properties had to have been compensated at the time — the plans show that (the current edge of the sidewalk) is what was supposed to be the right-of-way line, and it's been like that ever since."
The original misshapen right-of-way dates back even further than the 1968 project. According to Bluhm, aerial survey maps taken before 1968 show that the earlier version of Boones Ferry Road still didn't match the original right-of-way, which dates all the way back to 1914.
"The 1914 Bryant Acres plat (map) reflected that kink, but the roadway itself was clearly never built with that hard kink in it," she said. "And meanwhile by 1968, it's really clear that the roadway that you see out there today was built, and those plans say that the back of the lot (that overlaps with the road) is right-of-way, and it's always been considered right-of-way."
Without the transfer deeds from 1968, it's unclear whether the error in the 1914 map came up during that project, or how the county planners responded.
But in any case, the discrepancy has to be addressed before the modern Boones Ferry Road project can go ahead.
To fix the issue, the City Council on Tuesday passed a resolution invoking an Oregon law that allows a city to "legalize" existing portions of a public roadway that don't conform to City records if the road has existed in its present form for at least 10 years.
In addition to the three properties near Madrona Street, the City is also invoking the law to fix a discrepancy at the northeast corner of Boones Ferry Road and Lanewood Street. The City approved the construction of a shopping center on that corner in 1978, on the condition that part of the property be transferred to the Boones Ferry Road right-of-way and used for sidewalk improvements.
The owner agreed and constructed the shopping center to those specifications, but the City has been unable to locate any formal document that confirms the property transfer.
The legalization procedure requires a public hearing, which is tentatively planned for the council's Nov. 7 meeting. After that, the council can vote to invoke the law and legalize the road if councilors believe the law's criteria are met. The legalization order would become the definitive proof of the road's configuration, and would invalidate any conflicting records.
Still, the question remains: Why was the right-of-way drawn incorrectly in the first place? After 103 years, Bluhm said, it's a question that may have to go unanswered.
"It's rather perplexing," Bluhm said. "An unsolved mystery."