By Saundra Sorenson. Originally published in The Lake Oswego Review 8/13/15
Glass Butterfly has agreed to leave downtown Lake Oswego’s Wizer Block a month early and abatement work is now expected to begin on the property “Sept. 1st-ish,” according to developer Patrick Kessi.
Kessi, operations director Seth Henderson, project architect Robert Nobles and representatives from Lease Crutcher Lewis, the general contractor, met Tuesday morning with the Lake Oswego Business Alliance to discuss communications and construction plans for the mixed-use project at A Avenue and First Street.
Among other things, they shared a site and traffic plan that will turn Second Street into a southbound one-way road and reroute pedestrians around the construction site during demolition.
That plan, and the installation of fencing around the property, also has a “Sept. 1st-ish” start date, Kessi said, pending permit approvals and the finalization of last-minute details.
“The building will be vacant,” he said, and actual demolition of the exisiting structure could begin as soon as Sept. 23.
Kessi called last week’s Court of Appeals ruling, which affirmed an earlier decision by the state Land Use Court of Appeals and was issued without opinion, “the best possible outcome.”
“Since 1924, there have been a total of 259 cases reviewed by the (Oregon) Supreme Court that were affirmed without opinion by the lower court,” Kessi said. “Of those, none were land use cases decided by LUBA and affirmed without opinion by the Court of Appeals.
“We are moving forward,” he said.
His opponents, however, may have other ideas.
Attorney Greg Hathaway, who represents Save Our Village and the Evergreen Neighborhood Association, told The Review this week that his clients are seriously considering taking their fight to the Oregon Supreme Court.
“I am in conversations with my clients regarding a potential petition to the Supreme Court,” Hathaway said, “but no decisions have been made.”
Hathaway contends that LUBA disregarded key elements of state law when it affirmed the City Council’s decision to allow the 290,000-square-foot, $93 million project. Specifically, he says LUBA was required to consider three prongs — or elements — of state law when it evaluated a local government’s interpretation of its Comprehensive Plan and land use regulations. LUBA ignored two of those prongs, Hathaway said.
Hathaway said he believes the case could set an important precedent in land use law and so he was surprised by the Appeals Court ruling.
“I think the case deserved a written decision,” he said, “because there is no appellate case law that addresses LUBA’s obligation to address all three prongs. LUBA did not address underlying policy issues.”
But Kessi said Tuesday he is confident the legal obstacles are over at this point — an assertion his attorney, Christe White, backed with statistics.
“It’s notable that the Supreme Court only has a 6 percent review rate overall, so land use cases have even less (of a chance of being heard) than that,” White told The Review.
Some legal analysts would agree, including Lake Oswego attorney Wendie Kellington, who has served as a Land Use Board of Appeals referee. Kellington has not been involved in the Block 137 appeals process, but said the LUBA decision was “fairly unremarkable.”
“The fact that the Court of Appeals chose to affirm LUBA’s decision without opinion would seem to reinforce the impression that LUBA’s decision and the underlying local decision is, as a legal matter, fairly unremarkable,” Kellington said. “One of the things the Supreme Court considers is whether the Court of Appeals wrote an opinion. In all, in my experience, these facts would not bode well for the Oregon Supreme Court accepting review.”
White has represented Kessi in numerous mixed-use development projects, and she characterized the process of getting Block 137 approved — first by the City Council, then by the Land Use Board of Appeals and the state Court of Appeals — as “particularly litigious on issues that don’t have any merit on appeal.”
“There’s a process in place for the review of meritorious disputes on land use issues, and this is the process they’re using,” she said. “I haven’t had cases go this far with this little merit.”
Any petition for judicial review at the Supreme Court level would have to be filed by Sept. 9.
SUBMITTED ILLUSTRATION: PHK DEVELOPMENT – A site and traffic plan released Tuesday by the Wizer Blocks developers would turn Second Street into a southbound one-way road and reroute pedestrians around the construction site during demolition and beyond.
Meanwhile, Kessi and his team said Tuesday that they expect to have permits for demolition and excavation approved and in hand this month. That would allow salvage and fixture-removal efforts to begin around Sept. 1. Demolition of the existing building would begin roughly three weeks later, and “mass excavation” would occur around the beginning of November.
Henderson, the director of operations for PHK Development, said the main building permit application will be filed with the city on Aug. 18 and incorporates a 12-week review process. The project timeline, which was prepared by Lease Crutcher Lewis, calls for crews to begin pouring foundations for the three-building development beginning in early January.
Construction will likely be completed in September 2017, Kessi and his team said.
Henderson told the business owners Tuesday that his three goals for the construction phase are to “minimize impact as much as possible, add transparency to the process, and (provide) a timely response” to questions from the community.
To that end, he released a site and traffic plan that, among other things, calls for a significant tree protection zone along Evergreen Road. The large tree at the corner of First Street and A Avenue also will be saved.
According to the plan:
— Second Street will become a southband one-way road from A Avenue to Evergreen Road. Construction fencing will extend into the roadway to create a delivery and staging area, reducing Second Street to one lane.
— Trucks delivering material to the site will enter on Second Street; those that can be turned around will exit back onto A Avenue, while others will circle around Evergreen and exit on Third Street.
— Sidewalks next to the site along First Street, Second Street and Evergreen Road will be closed throughout the project. The sidewalk along A Avenue will be closed during demolition and then reopened during later phases of the project; during demolition, pedestrians will have to cross to the north side of A Avenue and circle around the work site.
— Parking along all sides of the site will be prohibited, although some existing spots along First Street will remain.
At its busiest, the construction site will host 293 workers; an average of 200 to 225 workers will be on the job at all other times. Matt Baker, project manager for Lease Crutcher Lewis, said plans are in place to mitigate the impact on downtown parking by shuttling workers to the site every day.
“We’ve taken care of a lot of the upfront load on parking by identifying park-and-ride (locations) around town,” Baker said, and many of the subcontractors have already agreed to bring their workers to the Wizer Block from offsite locations.
Construction hours will generally be from 7:30 a.m. to 4 p.m., Monday through Friday. Baker said there may occassionally be some Saturday shifts.
The general contractor will have a storefront field office at 355 State Street, Baker said. Contact information for key project leaders can be found at timeline-lo137.com; weekly project updates will also be posted at the site and on the project’s Facebook page at facebook.com/TimelineLO137.
Contact Saundra Sorenson at 503-636-1281 ext. 107 or firstname.lastname@example.org.