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West Linn City Council sides with neighbors who appealed recent decision by planning commission

PMG FILE PHOTO - The West Linn City Council ruled on a land-use decision for a subdivion proposal at 18000 Upper Midhill Drive. A five-year land-use saga for a 34-lot subdivision on Upper Midhill Drive in West Linn continued Oct. 5 at a meeting of the City Council, in which the council approved the appeal of a two-year extension for the development project. The planning commission had approved the extension in August.

The appellants, Jason and Jessica Herra, are neighbors of the Upper Midhill property and argued that construction on the site had nearly started before the official approval was granted. Jason Herra also questioned the validity of a traffic study submitted by Emerio Design and Upper Midhill Estates, prior to the initial approval.

The council's decision can be appealed to the Land Use Board of Appeals (LUBA).

The city originally received a land-use application for the subdivision on a 6-acre wooded parcel at 18000 Upper Midhill Drive in 2015. In 2016, the planning commission did not have the votes to approve the application; the 3-3 tie effectively denied the application.

The City Council upheld the denial after the applicant, Emerio Design, appealed the planning commission's decision.

In early 2017, the decision went to LUBA, which remanded the decision back to the planning commission.

That year, the planning commission reversed its decision, granting approval for the subdivision plans. When that decision was appealed to the City Council, the council upheld the planning commission's approval. That decision made its way to LUBA as well and LUBA upheld the city's ruling in 2018.

Earlier this summer, Emerio Design, on behalf of property owners, Upper Midhill Estates, LLC, submitted the application for a two-year extension.

At the recommendation of city planning staff, the planning commission granted the extension. After the Herras appealed the extension, planning staff again recommended granting it by denying the Herras' appeal based on applicability of the Community Development Code (CDC).

Associate Planner Jennifer Arnold explained to the council that this decision was not a rehash of the initial land-use approval. The decision must only rely on whether the applicants met the three criteria for an extension laid out in the CDC.

At the Oct. 5 meeting, the council ruled against the staff's recommendation by granting the Herras' appeal.

"We know how the neighbors feel. We're sorry they feel that way. We hope that as we construct the project, we can be as courteous and considerate as possible and we intend to be," said Michael Robinson, the attorney for Emerio Design and Upper Midhill Estates.

Herra expressed frustration with the entire process, saying he had felt silenced throughout the ordeal and that someone would need an advanced degree to successfully navigate the city's land-use process.

Mayor Russ Axelrod expressed several concerns with the proposed development and granting the two-year extension.

Axelrod questioned why Emerio Design and Upper Midhill Estates hadn't met the criteria of the CDC over the past three years, forcing them to apply for the extension.

Robinson answered that the CDC allows for land-use applicants to apply for an extension without citing a reason, but he explained that Upper Midhill Estates had changed engineering firms and waited to begin work until LUBA granted the final approval.

Axelrod also shared where he thought others were narrowly interpreting the CDC, and not fully appreciating the authority it granted the council in situations like this.

"It (the CDC) says an extension may be granted. It doesn't say 'shall be granted,' a very important distinction," Axelrod said.

The mayor also expressed concern with the traffic, infrastructure and the area and the geotechnical study initially provided by the applicants.

Axelrod said that traffic on Highway 43 (the Upper Midhill property is less than half a mile off Highway 43) already is an issue and because it's a state highway, the city doesn't have much control over improvements for it. He also said infrastructure on Upper Midhill Drive was "disastrous."

These issues as well as the problems he's seen from other developments in the community have changed his thinking on the initial approval of this project, Axelrod said.

Robinson pointed out that several of the points Axelrod had mentioned were not to be considered, according to the extension approval process, because they did not pertain to the specific criteria the CDC references for OKing an extension.

After the council moved to approve the Herras' appeal of the extension, City Attorney Tim Ramis pointed out that he thought the mayor's argument on "may" vs. "shall" in the code may not hold up.

In his final argument, Robinson said the council's discretion to not approve an extension comes in when one of the three criteria have not been met, yet there had been no solid evidence of that.

The council voted 3-1 in favor of the appeal. The lone "no" vote came from Councilor Teri Cummings, who initially seconded the motion to grant the appeal, but seemed to have been swayed by input from Ramis and Robinson.

An appeal of the council's decision must go to LUBA.

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