Approved Minutes - 2009-01-21 ``S�01 LAKE osivfCo
City of Lake Oswego
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Development Review Commission Minutes
January 21, 2009
OREGON
I. CALL TO ORDER
Chair Krytsyna Stadnik called the Development Review Commission (DRC) meeting of
January 21, 2009 to order at approximately 6:00 p.m. in the Council Chambers of City
Hall at 380 "A" Avenue, Lake Oswego, Oregon.
II. ROLL CALL
Commissioners present: Chair Stadnik,Vice Chair Alby Heredia, Gregg Creighton, Bob
Needham, Don.Richards, Frank Rossi, and Peter Scott. Staff present: Hamid Pishvaie,
Assistant Planning Director; Debra Andreades, Senior Planner; Leslie Hamilton,
Associate Planner; Evan Boone, Deputy City Attorney; and Janice Reynolds,
Administrative Support.
III. MINUTES(None)
IV. APPROVAL OF FINDINGS, CONCLUSIONS AND ORDER(None)
V. PUBLIC HEARING
LU 07-0031 fAP 07-081, a request by Northwest Housing Alternatives
Background: the applicant applied for and obtained conditional use and development
review permits approved by the DRC. The appellant (Waluga Neighborhood
Association) appealed the DRC order to the City Council, and upon Council's approval of
the project, appealed the Council's order to the Land Use Board of Appeals (LUBA).
LUBA considered five assignments of error. LUBA remanded the decision to the City on
the first assignment of error relating to the definition of"congregate housing," and upon
the Applicant's request to reopen the record for additional evidence and testimony, the
Council remanded the decision to the DRC to take additional evidence upon the issue
remanded.
Issue Upon Which LUBA Remanded: LUBA remanded the decision regarding the
occupancy requirements for congregate housing units: "...eliminating the need for any
demonstration of an actual life-function disability or causative relationship between age
and the purported disability is contrary to the express language of the LOC [50.02.005,
"congregate housing"], which requires a causative element." LUBA Case No. 2008-
0035, page 5 (Oct. 1, 2008).
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Public Hearing Limited to Issue Upon Which LUBA Remanded: Pursuant to LOC
50.85.010(2), testimony was to be limited to the issue upon which LUBA remanded the
decision to the City. There was to be an opportunity for persons to present information to
rebut the substance of the ex parte contract declared by Commissioner Scott in his
Declaration of Ex Parte Contact.
Location of Property: 4255 Oakridge Road (Tax Lot 400 of Tax Map 21E08 CB).
The hearing had been continued from December 21, 2008, and January 5, 2009, for
written testimony only.
Chair Stadnik opened the public hearing and explained the applicable procedure and time
limits. She asked the Commissioners to report any ex parte contact(including site visits),
bias and conflict of interest, and to identify any known present or anticipated future
business relationships with the project or the applicant. Mr. Needham reported that
someone had approached him in the hallway after the last hearing and thanked him for his
questions. Mr. Boone read aloud a"Declaration of Ex Parte Contact" by Commissioner
Peter Scott in which the Commissioner reported he had sought clarification from a HUD
official whether or not prospective tenants would be required to disclose that they had a life-
function disability. The official had advised him that the applicant's project was approved for
HUD Section 202 funding, which required tenants to be low-income and elderly, but did not
require them to have a life-function disability. As far as HUD was concerned they did not
have to disclose any life-function disability. Mr. Boone then invited anyone so inclined to
submit rebuttal information related to the two declarations of ex parte contact. Each of the
Commissioners present declared their business or occupation as follows: Creighton
(architect); Heredia(real estate broker); Needham (retired lawyer); Richards
(arborist/landscape architect); Rossi (architectural drafter/designer); Scott
(engineering/design); and Chair Stadnik (civil engineer). No one present challenged any
Commissioner's right to hear the application or asked to submit rebuttal information.
Staff Report
Debra Andreades, Senior Planner, presented the staff report(dated November 21st and
December 5, 2008; and January 16, 2009). She reported a January 12, 2009, letter from
Cheryl Uchida had been received a few minutes after the 5:00 p.m. deadline for
submittals and had not been entered into the record. She reported that the record now
contained two letters and a title page with table of contents that had been on pages that
had been inadvertently omitted from the website copy and the bound copy of material
originally distributed by staff. The missing pages had been distributed the previous
afternoon to interested parties and the Waluga Neighborhood Association. She and Mr.
Boone advised the DRC to invite anyone so inclined to declare they suffered from late
receipt of that information and inability to submit a rebuttal to it.
Carolyn Krebs, 16925 Denney Ct,Lake Oswego, OR 97035, indicated it was a
challenge to download and read such a large electronic file. Mr. Boone asked her to read
the document during the hearing and advise the DRC if she thought failure to provide
rebuttal information to it would prejudice her rights.
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Ms. Andreades read aloud the "Categories of Irrelevant Subject Matter" listed in the
January 15, 2009, staff memorandum. She recommended the DRC rule that the listed
types of evidence would not be accepted because they were outside the scope of the
hearing. When asked, Mr. Boone advised that the staff report was not considered new
evidence subject to rebuttal, but it was a legal analysis of the relevance of the evidence to
the applicable criteria.
Mr. Heredia moved that categories of material in any testimony or exhibit that were listed
under"Categories of Irrelevant Subject Matter" in the January 16, 2009, staff
memorandum were ruled inadmissible. Mr. Needham seconded the motion and it passed
6:1. Mr. Needham voted against.
Ms. Andreades reported that staff still recommended approval of the application and
explained why. She said LUBA saw the issue as whether or not the applicant had
demonstrated the proposed housing would be"Congregate Housing" as the Community
Development Code defined it. The LUBA ruling allowed the applicant to do that by
either proving an actual relationship between age and life-function disability by asking
each potential tenant, or by showing a causative relationship between age and life-
function disability. The applicant had explained they could not legally ask that of
individual tenants because the type of tenant they were seeking was a person of age 62 or
older; and they advised that the city could not require the applicant to ask them.
Ms. Andreades suggested the Commissioners first rule on what was the "life-function
disability" the City Council intended when they adopted the code provision, and if it
included the Americans with Disabilities Act (ADA) definition the applicant wanted to
use. She said staff believed the legislative history supported use of the ADA definition
(see Deputy City Attorney's memorandum in Exhibit F-20). She recalled that opponents
had offered multiple definitions and statistically connected them with various specifically
defined parameters of disabilities, but no opponent had argued that the ADA definition
was not included in the LOC definition. Opponents had never argued that one of their
definitions was the exclusive and only definition of disability. For those reasons she said
staff found that evidence was not relevant.
Ms. Andreades then discussed whether the proposed facility was Congregate Housing.
She noted the Code categorized housing as Multifamily Housing, Congregate Housing,
Continuing Care Retirement Community(CCRC) and Residential Care (also known as
assisted living). She observed the Code described Congregate Housing as,
"Multi-unit housing with self-contained apartments that contain cooking facilities that support
independent lifestyles for those who have life-function disability due to age, medical or mental
condition, which do not require residential care or skilled nursing services. Congregate Housing
provides varying levels of support services, such as meals, laundry,housekeeping,transportation and
social,recreational,cultural and educational activities. The full range of services normally
associated with a residential care facility are not provided in association with Congregate Housing."
She observed the proposed facility fit that definition, and did not fit any other code
category of housing. It offered residents self-contained apartments with cooking facilities
and a limited variety of support services, but it was not Multifamily Housing because that
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category of housing was defined by its structure, not by the type of person who would live
there, and Multifamily Housing offered no services geared to persons of age or condition,
nor did it limit the age or condition of a tenant. She said CCRC was age restricted but it
featured common dining facilities and offered a continuum of services that included long-
term, skilled nursing care. The applicant's facility did not offer the full range of services.
Residential Care Housing was for persons with a range of physical and mental conditions,
including chronic conditions requiring daily assistance. It did not offer individual
apartments with cooking facilities.
Ms. Andreades then discussed the issue of supportive services and design. She noted the
code definition called for varying levels of support services and did not require a central
dining facility. She recalled the applicant had described the kinds of support they would
offer, such as transportation, a special room for consultations, and other services in
consultation with the Lake Grove Presbyterian Church. She said they had shown the
internal design offered features that would offer varying levels of support. There were
some fully-ADA-complaint units, and other units could be modified to accommodate
types of disabilities. She concluded that the facility was designed for tenants with life-
function disability.
When asked, Mr. Boone confirmed that the remand was to allow the applicant to
demonstrate there was an actual or causative relationship between age and life-function
disability. Mr. Needham advised that the LUBA remand was because LUBA agreed with
the petitioners that the language in the Code provision required a causative element. He
explained that what was wrong with the application was that it did not satisfy that
requirement on its face. Vice Chair Heredia wanted to know how tenants were selected
for the fully-ADA-compliant units. Ms. Andreades did not know and staff observed that
the record was closed unless the Commissioners decided to reopen testimony.
Chair Stadnik and Mr. Boone asked Ms. Krebs to state if she felt that not receiving the
missing pages timely had substantially prejudiced her right to present evidence relative to
the criteria, and if she desired to rebut. Mr. Boone advised that the DRC could not
exclude the material because the applicant had submitted it by the January 12th deadline.
He explained that the missing pages had been inadvertently left out of courtesy
photocopies of the material and the copy put on the website, but persons who had come to
City Hall to examine the original documents would have seen them. He explained that
had Ms. Krebs received the missing pages timely she and other parties who desired to
would have had two days - between January 12t and January 14th -to submit rebuttals to
it.
Deliberations
Mr. Needham pointed out the code definition, "Congregate Housing," plainly stated it
was housing"for those who have life-function disability." The code said the disability
could be due to age, medical or mental condition, but a tenant had to have a life-function
disability. He said every tenant had to have a life-function disability. He said just being
age 62 or older did not meet that threshold, because LUBA had ruled the applicant had to
prove a causative relationship between age and life-function disability. He reasoned that
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if the City Council had intended to they could have required 80% disabled tenants and the
others could just be age 62 or older. But he thought they adopted the current ordinance
because they wanted to make a place in the community for housing for persons with life-
function disabilities. He noted that no party had appealed the decision beyond LUBA. He
explained he had voted against excluding the "Categories of Irrelevant Subject Matter"
because he thought that most of the evidence had nothing to do with the scope of the
remand. He explained that he had been inclined to approve the application because he
saw a need for housing for persons with life-function disability, and for older people, but
LUBA clearly wanted the city to follow the code, so he would not approve the project.
Vice Chair Heredia said he found no evidence that proved that age caused life-function
disability. He observed that a lot of evidence had been submitted to show that life-
function disability was some form of diminished capacity to perform daily activities, but
that was likely unnecessary evidence because of the very narrow scope of the LUBA
remand. He agreed the proposed facility could be found to fit into the Congregate
Housing category when compared to all types, but he said that was not the issue. The
issue was whether age had a causative relationship to life-function disability. He said
whether it did or not depended on where you"draw the line." He did not feel the
applicant had proved that the evidence met the threshold. He said the Commissioners had
to decide the matter based on the specific language in the code because that was what
LUBA called for. He indicated that he did not support the application. He said he
understood the applicant's position was they could not do a case-by-case analysis of
tenants because it was unlawful, so he wondered how the applicant would determine who
got the fully-ADA-compliant units if they could not ask questions about disability.
Mr. Richards said "life-function disability" simply meant having a"life-functioning"
disability, and did not mean being a little slower today than five years ago. He recalled
that the applicant's attorney had written to suggest that if the city required individual
evidence of disability, such as a doctor's note, or some other means that would violate the
ADA or Fair Housing Act, then a reasonable accommodation must be made to provide an
interpretation that is consistent with federal law. He wondered what that"reasonable
accommodation"would be.
Mr. Scott observed that the LUBA remand called for a demonstration of a causative
relationship between age and the purported disability. He recalled a lot of testimony that
as one got older the statistical probability of getting a disability increased, and he said he
agreed with that. He indicated that had LUBA asked for a demonstration that there was a
causative relationship between age and the probability one would get a disability as one
got older, there was evidence of that. But they asked for a demonstration of a relationship
between age and the purported disability. It might be either age-related or non-age-
related, but in every case there had to be a disability. He questioned why government
restricted such housing providers from asking about disability when that would entitle
potential tenants to the housing that was intended for them. He said he had to believe
there was some exception that could be made in the screening process that would allow
the housing provider to ask for evidence, such as a doctor's note, to confirm there was a
disability. He pointed out the record contained Fair Housing Information Sheet#5, which
said that could be asked if the prospective tenant was applying for housing for persons
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with disabilities. He said he wanted to see the needed units built, but for people who
belonged there— who had a life-function disability. He did not want to see people with a
disability lose the opportunity to live in such a facility because people who did not have a
disability already occupied it.
Mr. Rossi said the applicant had never demonstrated that age related to life-function
disability. He wanted to see such a facility built in the city, but to just limit tenancy to
age was not enough for him. The only way he could support the application was if the
Commissioners decided to add a condition of approval that required the applicant to ask
for some sort of proof of disability, so those who needed it would have that housing.
Mr. Needham said it was the City Council's job to fix any problem with the Code
definition. The LUBA remand had been based on the fact that it found eliminating the
need to demonstrate that there was an actual life function disability or a causative
relationship between age and the purported disability was "contrary to the express
language" of the Code. A tenant had to have a disability, and if it were claimed it was
based on age, a causative relationship had to be proved. He suggested that the City
Council might establish a threshold for disability that might be more than "things just
don't work as well any more." He said the ADA definition might be a good place for
them to start considering how to define what a life-function disability was. He said the
DRC decision was to decide within the narrow scope of the remand. He said the
proposed project did not restrict the occupants to people with life-function disabilities,
and that was what it had to do to meet the code.
Chair Stadnik said the city was in dire need of such housing facilities, but the DRC had to
decide whether the proposed facility met the code. She agreed that the City Council
needed to rewrite the ordinance so it was clearer and so the DRC would not have to revisit
the issue in future cases.
Mr. Needham moved to deny LU 07-0031. Vice Chair Heredia seconded the motion and
it passed 6:1. Mr. Creighton voted against. Mr. Boone advised that findings would be
considered for adoption on Feb 2, 2009. Chair Stadnik announced a five-minute recess
and thereafter reconvened the meeting.
LU 07-0090, a request by Janet Sue La Fontaine for approval of the following:
■ Delineation of the Resource Protection(RP Stream Corridor) and Resource
Conservation (RC Tree Grove) District boundaries.
■ Determination of an RC Protection Area (RCPA).
■ A request for RP buffer averaging per LOC 50-16.070(3)(a).
■ A 4-lot, single-family residential subdivision (including two flag lots).
■ Removal of 11 trees to accommodate the project.
Location of Property: 14800 Boones Ferry Road (Tax Lot 1500 of Tax Map 21E08
AB). (Continued from January 5, 2009)
Chair Stadnik opened the public hearing and explained the applicable procedure and time
limits. She asked the Commissioners to report any ex parte contact(including site visits),
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bias and conflict of interest, and to identify any known present or anticipated future
business relationships with the project or the applicant. Mr. Richards reported he had
made a site visit. Each of the Commissioners present declared their business or
occupation as follows: Creighton (architect); Heredia(real estate broker); Needham
(retired lawyer); Richards (arborist/landscape architect); Rossi (architectural drafter and
designer); Scott (engineering/design); and Chair Stadnik(civil engineer). No one present
challenged any Commissioner's right to hear the application.
Staff Report
Debra Andreades, Senior Planner, presented the staff report (dated December 26,
2008). She said the applicant wanted to develop a 4-lot subdivision. She clarified that
delineation of the (RC and RP) Districts was subject to ministerial (staff) review, but the
rest of the application was subject to DRC review. She said that the two rear lots would
be flag lots. She clarified the RC District was tree canopy, which did not necessarily have
to have tree trunks on it. After delineation, 50% of the RC District could be used for
development, and the other 50%had to be preserved in an RCPA. She reported the
applicant proposed an RCPA that would protect 55% of the delineated RC District. She
then discussed protection of the RP District. A 30-foot buffer was required but it could be
an averaged buffer, and the applicant proposed to average it. She pointed out the RP
District boundary, the proposed(averaged) buffer line, and the required 10 foot
construction buffer line, and advised the applicant met the criteria for buffer averaging.
Mr. Andreades showed an aerial photograph and pointed out a floodplain was on the site.
She said the open space area would be used to protect the resource. She advised the
applicant was allowed to cross the resource area if there were not other way to get access,
so a sewer line and stormwater drains would cross it. She explained how the location of
protected resources constrained the lots. The applicant wanted exceptions to the zone's
setback and lot size requirements in order to configure the development away from the
resources. Staff recommended slightly larger setbacks than the applicant proposed. The
Tree Removal Plan identified eleven trees to be removed to accommodate driveway and
sidewalks, but staff found it was not necessary to remove two of them. When asked Ms.
Andreades explained trees within lots were not allowed to be removed until house plans
were submitted during the building permit stage of development that showed they needed
to be removed to make room for the house. She recommended approval of the
application subject to the conditions of approval recommended by staff.
During the questioning period, staff described the direction Springbrook Creek flowed.
They clarified that trees staff did not recommend be removed did not need to be removed
to offer a line of sight for safe exit from the site. Ms. Andreades pointed out how
stormwater would be directed to a catch basin in the driveway and then piped to an outfall
and through riprap before it entered the stream. She clarified the driveway was to be
graded to a grade that met the code. She confirmed that no landmark trees were to be
removed.
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Applicant
Janet La Fontaine, 1400 SW Boones Ferry Road„ the property owner, explained she
could no longer maintain it and wanted to sell it and retire. Gregory Kurahashi,
Kurahashi & Associates, 4470 SW Hall Blvd.. Beaverton, Oregon, indicated that the
applicant asked for exceptions to setbacks so she would have enough lot coverage to build
homes that were similar size to others in the area. He explained the applicant had
originally planned a much larger RCPA that included most of the roadway frontage, but
they had removed part of that area because they believed they would have to prune or
remove some trees there to improve driver sight distance. Staff had indicated they agreed
with that at the time. He said that reduced the RCPA to 55%. Staff had then taken the
position that the reduced RCPA did not justify the reduced setbacks. Mr. Kurahashi
clarified that the back two houses would be one story and the front houses could be taller,
but they were required to slope down to 18 feet near the street. He said the applicant had
conducted a tree inventory and they were saving most of the biggest trees on the site, and
protecting roots with an elevated sidewalk. But the applicant had removed them from the
RCPA because she did not know that would not affect her ability to modify setbacks.
When asked, he explained that after the applicant understood the size of the RCPA would
affect setback modification, she had not revised the application because the hearing date
was already set.
Staff clarified the vacant, triangular, lot abutting the east side of the site was in the R-10
zone and appeared to also be constrained by natural resources. It was likely to be
development with a single-family residence on it. It fronted on Boones Ferry Road, but
was not allowed to take access from that arterial street unless there was no other
alternative available.
Mr. Kurahashi explained the applicant believed she should be allowed to reduce the
"front" setback from 25' to 20' so she could have a slightly larger building footprint
because she was not using the "front" setback as a front yard and driveway. He said the
reductions in internal setbacks would also give her more building room and would not
affect neighbors. He said if staff took responsibility for driver sight distance at the
driveway access, the applicant would agree to not cut the trees there. Perhaps she could
limb them and narrow the sidewalk to avoid them.
During the questioning period, the applicant eventually clarified that what the city
deemed the "front yard"the applicant referred to as the"rear yard." That had created
confusion during staff review, testimony and questioning. Ms. Andreades advised that
the yard abutting Twin Fir Road was the "front yard," no matter how the house was
oriented. Mr. Kurahashi then clarified that the applicant was asking for a 5-foot reduction
in the required 25-foot setback from Twin Fir Road and she proposed to dedicate another
10 feet along the roadway for right-of-way, so the proposed setback and dedication
totaled 35 feet. He stressed the applicant wanted the 5-foot setback reduction because it
would allow a larger building footprint so the house would not be too small. Ms.
Andreades clarified that the Engineering Department had advised that the dedication was
not necessary. She pointed out staff recommended Condition of Approval A(7)(c)
applied the standard zone setbacks, except for some specific reductions listed there, so the
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front (Twin Fir) setback was to be the zone setback of 25 feet,plus the Special Street
Setback of 10 feet, and those two setbacks totaled 35 feet. She clarified that the five-foot
sidewalk was outside the dedicated area and in the existing right of way.
When asked, Mr. Kurahashi confirmed that he could fit a two-story house on Lots 1 and
2, but the front had to slope down toward the street, so they would not be as large as
homes in the area. He said their garage access could not be from Twin Fir Road because
that would be too close to the intersection, so all homes on the site would be accessed by
the new driveway. Ms. Andreades confirmed that the front setback plane requirement
applied along Twin Fir Road.
Mr. Kurahashi argued that what the applicant proposed essentially provided a larger
RCPA-type area and that mitigated for the reduced setbacks. He said that was allowed
under LOC 50.16.040. He said the trees to be saved were the larger trees, and explained
that some of them were not in the RCPA because the applicant thought they might have to
cut some to improve sight distance. Otherwise the RCPA would have been 76% of the
RC District. He indicated the applicant could revise the proposal to show a larger RCPA.
He said the applicant believed the request for the front setback reduction was justified
because penetrations into that setback were not as great as they might have otherwise
been. When asked, he said he would have to talk with engineers to find out if the
stormwater line discharge could be redirected. Staff advised that the protection
requirement was 50% of the delineated RC District. They cautioned that if the applicant
enlarged the RCPA the trees in it could never be cut or pruned. They clarified that the
RCPA boundary was the drip line and a 5-foot construction setback applied from the
RCPA Boundary. That might cause problems for the property owner in the future. Mr.
Kurahashi then explained that he was not trying to change the proposal. He just wanted
to show that the applicant had saved some trees that would have been part of RCPA if she
had stuck to her original plan. Mr. Richards explained that the dilemma was that unless,
an area was in the RCPA if it could not be factored into the density transfer calculation.
During the questioning period, staff observed the applicant's representative was referring
to lot coverage as "density." Mr. Kurahashi clarified that he understood that putting a
higher percentage into an RCPA helped an applicant justify getting reduced setbacks. He
stressed the applicant had already protected much of the site and was suffering from
constrained lot sizes, with less buildable area. He held the code allowed her to have the
same amount of lot coverage she could have had on a larger lot. When asked Ms.
Andreades explained the applicant was not asking for a variance, but basing the request
for exceptions on LOC 50.16.040, that allowed exceptions if that would better protect the
resource. She pointed out the staff report offered the related analysis.
Opponents
Jay and Debra Barnett, 14865 Twin Fir Ct., Lake Oswego, Oregon 97035, Ms.
Barnett said the site was "special" and served as habitat for deer. She asked what she
could do to prevent the applicant from building four houses on it. She suggested two
houses would be better. The Commissioners explained the code allowed the applicant to
subdivide her property in accordance with applicable regulations. They said the DRC
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was not a policy-making body. They advised that an opponent could influence the DRC
decision if his/her argument was based on the code.
Neither for nor Against
Barbara Zeller, 3335 Sabina Ct., President of the Lake Grove Neighborhood
Association, commented that this case and the previous case that evening were good
examples of why the city needed to rewrite LOC Chapter 50. She asked the
Commissioners to consider the fact that the city had used taxpayer dollars to accomplish a
stream restoration project at the site in 2001 in order to broaden the channel so less
sediment would reach the lake. She suggested that the city should adopt a policy of
compensating a property owner who was financially harmed by city actions. She said she
believed that the City Arborist had found that some trees on the site were "specimen"
trees, and she wondered if they were trees that would be cut. She recalled the applicant's
testimony that she wanted to be able to build houses of similar size to others in the area.
She explained that the Association enjoyed the wide range of sizes of homes in the
neighborhood, including small bungalows. She said the neighborhood plan called for
streets with a rural, treed lane, look, and to not require curb and gutter could give the
applicant more room to build. During the questioning period, she confirmed that stream
restoration had occurred on the site. Ms. Andreades pointed out the staff report discussed
the 2001 stream restoration project on the site and explained that the averaged buffer the
applicant was proposing met protection requirements in the Sensitive Lands Ordinance.
When the Commissioners observed the sidewalk would not connect to another sidewalk
segment,Ms. Andreades explained the city required developers to improve their part of
the street so it could be eventually connected with other segments that other developers
improved. Otherwise, it might never get done. She clarified that the existing sidewalk
was in the right of way. She said the Engineering staff had confirmed that Twin Fir Road
was designated as a neighborhood collector street that was to feature a pathway in the
future. However, she advised the Code also allowed the City Manager(or his designate,
the City Engineer)to waive the requirement for a sidewalk if he found it was not
warranted due to site-specific factors. The Commissioners were concerned that
stormwater would be directed to where it could harm the RP resource. They read in the
staff report that curbing the roadway would cause runoff to be concentrated at the site's
northeast corner and that was why the catch basin was necessary. Mr. Boone advised the
Commissioners could recommend that the City Engineer take another look at the
sidewalk and drainage facilities.
Dee Barnett read aloud a letter from Erik and Eve Brasher, 14863 Twin Fir Ct., Lake
Oswego, Oregon 97035,, in which they expressed their concern that removal of trees
would cause drainage and erosion problems; and that development of four lots would
increase the amount of silt and lawn chemicals going into the creek and increase noise
and traffic. They held the development should be limited to two homes. During the
questioning period, Ms. Andreades clarified that runoff would be directed into the
driveway and then piped to an outfall, and there was to be some kind of detention system
to clean the water
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Bonny Gray, 14855 Twin Fir Rd., Lake Oswego, Oregon 97035,explained that runoff
from the church property across the street drained onto her property and she was
concerned that a sidewalk would create additional runoff onto her property. She reported
that construction materials and sediment from upstream development clogged the culvert
under the street. She asked where the deer that fed on the site would go after it was
developed. She was concerned that the applicant planned to move a driveway to their
shared property line for better driver sight distance. That would mean she could not erect
a fence or plant arborvitae on the boundary. She was concerned about the impact to the
area of development of four homes. During the questioning period, Chair Stadnik
referred to Exhibit E-12 and observed that the City Engineer might want to have a curb
and gutter to direct the runoff from Boones Ferry Road and the church property into the
catch basin before it got to Ms. Gray's property.
Rebuttal
Mr. Kurahashi confirmed that runoff from the roadway currently flowed onto Ms. Gray's
property. He said the City Engineer likely wanted the new curbing because it would
direct that runoff into the catch basin and water quality facility, instead. He said the
detention facility would be built to the latest standards;the piping would be a size that
could handle the volume of runoff; and a filter would remove pollutants. It was to be
maintained by the homeowners association. He said much of the existing problem was
because upstream development had been done before detention was required. He said the
city's restoration project had created wetlands on the site that the owner had not been
warned to expect. He said the resolution of that issue was to allow her to develop the site.
He wanted the city to re-vegetate the area, which would be made part of the open space.
He said the applicant proposed a larger (averaged) buffer than was required.
Ms. La Fontaine recalled the Brasher's statement about good stewardship and their
position that two units were acceptable,but four units was unreasonable. She clarified
that the creek did not run through their property. She said they had been aware of the
plan to build four homes on the site before they purchased their home. She said their
concerns would be addressed by plantings and the filtration system. She said that Ms.
Barnett's property was well removed from the site and she would not suffer from a loss of
buffering from Boones Ferry Road. She said to her knowledge no trees were to be
removed from the riparian zone. Trees that were to be removed to facilitate construction
would be mitigated by replacement trees, as the code required. She said when she agreed
to allow the city to use her property for construction access for the Springbrook Creek
restoration project, she had not been aware that the project would raise the creek bed and
expand the floodplain on her property, thereby shrinking buildable area on the site. She
held she had already significantly contributed to the overall quality of the stream corridor.
She asked to be allowed to use the amount of lot coverage allowed by the zone and for the
adjustments she asked for.
During the questioning period, Ms. La Fontaine clarified the city's stream enhancement
project purposely expanded the floodplain on the site in order to slow the stream down as
it crossed over from the Gray property. Mr. Kurahashi said that caused her to lose
developable land, flattened the area and created drainage problems. The applicant
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planned to use fill to address that. The applicant clarified that there were a few trees in the
riparian area, but some had died, and plants did not thrive there because it was too wet.
Deer preferred to feed on plants in the landscaped area. Mr. Kurahashi said the applicant
would erect the animal fence staff asked for on the south side of the site next to an
existing fence erected by the Brashers. When asked, Mr. Kurahashi explained he
proposed to use relatively large block for the east property line wall, which would be 4 to
4.5 feet high and offer sight distance. He confirmed utilities would be routed under the
driveway.
Deliberations
No one requested that the record be held open for additional written testimony. The
applicant waived her right to more time in which to submit a final written argument. The
Commissioners asked if the City Arborist had found significant trees on site. Ms.
Andreades recalled that when she visited the site with him, they had observed some larger
trees proposed for removal because they were in the area of the driveway. The code
required that removal to be mitigated. Mr. Rossi wanted confirmation that the City
Engineer wanted the street improvements primarily to help control runoff. Vice Chair
Heredia suggested the Commissioners recommend that the City Engineer take another
look at it. There was general agreement to do that.
Vice Chair Heredia said he could agree to allow front setback for Lots 1 and 2 to be 20
feet, instead of the code requirement of 25 feet. He could agree to that based on the
location of the driveway, the buffer that appeared to exist, and the way the houses would
be oriented. He added that the rest of the setbacks should be the sizes staff recommended.
Mr. Scott and Mr. Richards agreed 20 feet was a sufficient setback there. When asked,
staff pointed out that the staff report found reduced setbacks would not better protect
resources. However, after hearing the applicant's representative explain that she had
originally wanted to put these trees in the RCPA; staff agreed that an argument could be
made that tree protection along Twin Fir Road could support 20-foot front yard setback.
Chair Stadnik heard a consensus that all other setbacks should be as staff recommended.
Vice Chair Heredia moved to approve LU 07-0090,but allow the requested 20-foot front
setback on Lots 1 and 2. Mr. Scott seconded the motion and it passed 7:0. Chair Stadnik
announced final vote would be held on February 2, 2009. She then announced a five—
minute break in the proceedings and thereafter reconvened the meeting.
LU 08-0028, a request by David and Colleen Maslen for approval of the following:
■ Resource Protection (RP) District boundary delineation.
• A setback modification pursuant to LOC 50.16.040 to construct additions to the
existing dwelling, which is located within the 25' RP buffer on the site:
- An 8.5' reduction to the 12.5' front yard setback along Springbrook Court to four
feet(measured to the roof cave line; the building wall is setback six feet from the
property line).
Location of Property: 2711 Summit Drive (Tax Lot 2400 or Tax Map 2 lE 8DA).
(Continued from January 5, 2009)
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Chair Stadnik opened the public hearing and explained the applicable procedure and time
limits. She asked the Commissioners to report any ex parte contact{including site visits),
bias and conflict of interest, and to identify any known present or anticipated future
business relationships with the project or the applicant. Vice Chair Heredia and Mr.
Richards each reported they had made a site visit. Chair Stadnik related that she knew
Kate Ludwig, who had submitted a letter to the record, but that she had no financial
interest in the application and could make an unbiased decision. Each of the
Commissioners present declared their business or occupation as follows: Creighton
(architect); Heredia (real estate broker); Needham (retired lawyer); Richards (certified
arborist/landscape architect); Rossi (architectural drafter/designer); Scott
(engineering/design); and Chair Stadnik (civil engineer). No one present challenged any
Commissioner's right to hear the application.
Leslie Hamilton,Associate Planner, presented the staff report(Staff Report dated
December 26, 2008; and Staff Memorandum dated January 2, 2009). She entered
recently received exhibits G-214 and F-12 into the record. She reported the RP boundary
had already been delineated in a ministerial decision. She advised the site featured three
front yards on Lakeview, Summit and Springbrook Court. It was a corner lot of over
20,000 sq. ft. and featured an existing, nonconforming house built in 1942. The code
required one of the front yards to be the zone's full, 25-foot, setback, and the others had
to be at least half of that, or 12.5 feet. She advised the existing house did not conform to
the 12.5-foot setback from Springbrook Court. She said the RP District had to be
buffered by a 25-foot RP buffer plus a 10-foot construction setback. She showed
photographs of the site and pointed out it sloped steeply from Lakeview Boulevard to the
creek. Ms. Hamilton reported that the applicants had changed their original plan to build
a full second story over the existing footprint and ask for a 5-foot setback from the north
property line due to neighborhood opposition. Now they wanted to build a partial second
story addition and did not request a modification of the setback along the north side. She
pointed out where they wanted to expand the footprint by 59 sq. ft. for enclosed living
space and add a 41 sq. ft. front porch at the southeast corner.
Ms. Hamilton discussed applicable regulations related to the Sensitive Lands Overlay
(LOC 50.16), vision clearance and solar access. She explained the site was almost entirely
encumbered by the RP district. She pointed out the RP District boundary that had been
approved ministerially, the 25-foot RP buffer, and the 10-foot construction buffer. She
advised that the owner of an encumbered property was entitled to development of at least
one single-family house. But the code did not define how large the single-family house
could be. Since 2005, staff interpretation had been to allow development of a house at the
size allowed on a standard sized lot for the zone, on a vacant lot. She said this was the
first case of applying staff interpretation to expansion of an existing house. She observed
the Lakeview frontage would feature the full, 25-foot front yard. She advised that the
northerly side yard setback depended on the height of the house. She advised the proposal
met all R-7.5 requirements, except for the request to reduce the required 12.5-foot east
front setback. The applicant was basing their request to modify that setback on LOC
50.16.040, which allowed a modification that would result in greater protection of the
resource. She advised that the requested modification would result in a smaller footprint
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than that would be permitted using staff interpretation. She concluded that staff found the
requested reduction of the 12.5 foot required east front yard setback met LOC 50.15.040.
Ms. Hamilton then discussed vision clearance standards. She advised that the proposed
porch and part of the addition would encroach into the code-required vision clearance
triangle at an uncontrolled intersection. However, the applicant was asking the city to
install a stop sign to control the Springbrook Court/Summit Drive intersection. Staff had
fashioned a condition of approval that specified that development was to either be outside
the vision clearance area for an uncontrolled intersection, or outside the vision clearance
triangle for a controlled intersection as determined by a highway engineering study.
That way the vision clearance criteria would be met. Ms. Hamilton then discussed Solar
Access requirements. She advised staff had found the structure qualified for exemption
from the Maximum Shade Point standard after the applicant submitted evidence to show
they qualified for the exception due to the slope of the site and because the neighbors to
the north were already shaded by trees. She pointed out the staff report discussed how the
application met other applicable standards. She said staff recommended approval of the
application subject to staff-recommended conditions of approval in the December 26,
2008, staff report.
Mr. Boone discussed a procedural issue related to Mr. Smith's request to the DRC in his
letters in exhibits G-208 and G-214 to deem that certain files were part of the DRC
record. He explained that incorporation by reference was not permitted by the code, and
if Mr. Smith wanted any files to be deemed to be part of the record he had to submit them
into the record.
Applicant
Joseph Schaefer, Schwabe, Williamson & Wyatt, 1211 SW Fifth, Ste. 1900, Portland,
Oregon, 97204, explained that although the site was almost a half-acre in size, the
applicant had very little area to expand on without the requested modifications. They
were only asking to be allowed to have more room for an entry and a porch. He indicated
the applicants were confident their proposal met the definition of a"reasonable house."
He said approval of the application would result in a house that was well under the 3,375
sq. ft. staff interpretation would allow. He said it would easily meet two of the three
alternatives the Planning Commission was considering using to define what was a
"reasonable house"to be allowed on a resource-constrained lot. The applicants did not
know if it would meet the third definition because they had not taken the time to measure
the eight houses on abutting lots. He said if the Commissioners agreed the applicants were
proposing a reasonable house, the next question to be answered was where to put it. He
said the applicable code provision was intended to protect the RP District and the
applicant did not propose to move the house into the District. He said neighbors had
objected to the application on the grounds that it would adversely affect the
neighborhood, particularly the Springbrook Court side modification. He reported the
applicants had measured the distances from the wall of each neighboring house to the
edge of the street asphalt in order to assess that. He reported the results were that the
Maslen house was 16 feet away, and neighboring houses were 14, 15, 10, 11, 6 and 3 feet
from the edge of the pavement. He said the applicants' porch would have no walls and it
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would be 13 feet from the pavement edge. Based on comparable houses, the applicants
believed it was appropriate to let them move the house forward for a porch. He added
that the porch would also improve the appearance of the Springbrook Court facade.
During the questioning period, he clarified that there would be four to five feet from the
porch post to the property line.
Andre DeBar,DeBar Architecture, 1035 SE 9th Avenue, Portland, Oregon 97214,
described how the applicants had changed their original plan to address neighbors'
concerns about mass and solar access. He said the project now met the required 10-foot
north setback and the second floor now met the required 12.5-foot setback. The roofline
had been changed to offer a smaller silhouette. He said the applicants proposed a small,
59 sq. ft. enclosed space addition on the front, and a 41 sq. ft. porch facing Springbrook
Court. He said the design now improved the relationship to neighbors and met their
concerns about mass and solar access.
During the questioning period, he clarified the entry the applicants currently proposed
was a little "bump out" with a 6-inch overhang, and the door faced Summit, not
Springbrook Court. He said the east wall met the required setback and the second story
met the required north setback. The roof had been lowered and the second story was
smaller mass. A Commissioner commented that it was odd to have a 12.5-foot front yard
setback on the east side. Ms. Hamilton explained that the site was a corner lot with
multiple frontages and the code required one frontage to be the full, 25 foot, setback and
the other frontages had to be at least half the full size setback, or at least 12.5 feet. She
noted the applicants had made the Lakeview elevation the full front setback. When asked,
he explained the applicants had positioned the highest part of the second story so the
living room could have a vaulted ceiling and to accommodate a better floor plan. He also
confirmed that the application qualified for exemption from the Solar Access Shade Point
standard due to the steep slope and the fact that a large tree already shaded the neighbors'
house.
Proponents
Pat and Sarah Shannon,2625 Summit Dr., Lake Oswego, Oregon 97034,. Ms.
Shannon said she lived across Springbrook Court. She testified that the applicants had
worked with the neighbors; modified their plan to meet neighbors concerns; and they
proposed a design that fit the neighborhood. Any impacts from raising the roof and
reducing setbacks were made up for by the nice design they proposed.
Bob and Sandy Kammeijer, 15773 Springbrook Court, Lake Oswego, Oregon 97034,
agreed with previous testimony. They said the applicants' house needed work and the
proposed house would add value to the neighborhood.
Patrick and Renee O'Keefe, 15761 Springbrook Court, Lake Oswego, Oregon
97034,. Mr. O'Keefe said their house was only three feet from the street, and the six
houses on Springbrook Court were all very close to the street and to each other and were
resource-constrained lots. He agreed with previous testimony. He said the proposal was
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a balance of compromises that would protect the resource while giving the neighborhood
a great result.
Tamara and Dan Afrasiabi, 15821 Springbrook Court, Lake Oswego,Oregon
97034 , said the house needed work and was the first thing people saw when they turned
onto the street. They said the proposed changes would be positive ones for the
neighborhood.
Robin and Mark Wolman, 15815 Springbrook Court, Lake Oswego, Oregon 97034,
Ms. Wolman said the Maslens were respecting the resource.
Opponents
Kirk Smith, 15847 Springbrook Ct.. Lake Oswego, Oregon 97034, had submitted
written testimony. He contended staff was using their informal interpretation of LOC
50.16 to entitle the applicants to make their existing home bigger when they had
previously denied two other neighbors to expand their homes. He stressed that the
variance code would not allow the requested reduction of the setbacks. He acknowledged
that a tree already shaded his home, but he explained the proposed project would further
reduce his family's access to sunshine. During the questioning period, staff confirmed the
applicants would be required to install fencing and sediment barriers to protect the RP
resource. Mr. Needham observed the applicants were not asking for a variance to expand
the existing footprint. He asked if the solar access issue was related to the proposed
second story. Mr. Smith said he was asserting his common law right to solar, which was
the reason for setbacks. He acknowledged that the Maslen home had been very close to
his when he purchased his home, but he said the project would bring it even closer to his
house and the proposed alignment would cut off what little sun he enjoyed today. He
argued that the applicants' site was actually flat, and did not qualify for the solar access
exemption, but staff had found it was exempt because of the way they calculated the
slope. Mr. Pishvaie advised that the site was exempt from compliance with garage
placement and appearance standards as well as the Solar Access ordinance because the
averaged slope on the site exceeded 20%. Staff had always interpreted the average slope
was the average of slopes on the entire site, and not just under the building footprint. He
advised that even if the Commissioners found the site was not exempt, the applicant could
easily conform to the code by tweaking the roof form, which was what they showed in
Exhibit F-12.
Mr. Smith said his written testimony discussed his common law right to solar access, Mr.
Boone advised that the DRC did not adjudicate common law claims, and had to apply the
criteria in the code. If there was a common law right outside the code Mr. Smith had the
right to seek a civil remedy from a court. Mr. Smith offered to submit to the record
emails he had received from the city that asked him to waive claims against the city he
said he had never made. He showed photographs to demonstrate his position that it was
not logical to designate the Lakeview side of the site as the "front yard,"because of the
steep topography and resources between the road and the house. Mr. Needham asked
why that mattered to him if the applicants were not changing the footprint of their home,
except to add an entryway and porch. Mr. Smith contended the applicants had decided to
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designate Lakeview as their full front yard because they were too close to the street to get
a 25-foot setback along Springbrook Court. Staff advised that many properties along
Springbrook Court were through lots and had two front yards and no rear yard. They said
a"front yard"was subject to certain setback requirements, but that was not necessarily
where the front door had to be oriented to.
Mr. Smith had referred to the first official notice of the application. Staff explained the
first notice that had been mailed had erroneously referenced a 25-foot setback along
Springbrook Court. Staff report, however, had always correctly described the setback.
Mr. Smith asked for more time to submit written evidence.
Pamela Woods, 15847 Springbrook Ct., Lake Oswego, Oregon 97034, had signed up
to testify, but did not.
Rebuttal
Mr. DeBar clarified that the applicants were not proposing to modify a setback on the side
facing Kirk Smith's residence, so a setback reduction would not affect Smith's sunlight.
He said he had met with Kirk Smith's wife, Pam Woods, at her house where they had
examined the view from a window there and found it included the northwest corner of the
Maslen house and a bit of a view of the lake. He said after that meeting, the applicants
had given up a vaulted ceiling in order to lower the roof to a hip roof. He reported the
applicants had talked with Mr. Smith in the hallway of City Hall after the last DRC
meeting and had also offered to extend the conversation. They had sent the Smith
numerous emails discussing potential design revisions. They had invited parties to
forward to the applicants graphics showing any alternative designs they wanted them to
consider. They had received back one alternative to add a sunroom to the south, over the
living room. But they found that would not solve the solar issue. In other
communications they had received it had been hard to understand what the writer was
asking for. Mr. Schaeffer said he knew of nothing the applicants had not addressed that
the resource protection code required. He stressed that no trees were proposed for
removal and the applicants were not expanding the footprint toward the west. He pointed
to the common boundary between the Maslen and Smith residences shown on the site
plan to talk about the southern exposure issue. He said it was strange to hear complaints
about setback and solar issues from a neighbor after examining the relative positions of
the two houses. He said the applicants had reduced the bulk along the north property line
by pushing back the second story there and changing the roof to a hip roof. He said he
had submitted a letter to the city that day that pointed out those changes brought the
application very close to meeting the maximum shade point standard even though it did
not need to. He explained if the Commissioners concluded the applicants were not
entitled to the solar access exemption, the applicants would drop the roof pitch from 6:12
to 5:12 and they would meet that standard. But they thought 6:12 pitch was more
appropriate because the other pitch would make the house more ranch style. He clarified
the existing roof was 7:12 pitch, but it was to be entirely replaced. When asked, Mr.
Schaeffer pointed out which of the exhibits he was discussing were the current revisions
the applicant was asking for and he confirmed they were the same plans as those in the
record. A Commissioner observed that even though the applicant was exempt from the
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solar access code, they had avoided using a gable roof on the north side that would have
cast a longer shadow on the neighbors and worsened their situation.
Mr. Schaeffer pointed out that Mr. Boone had explained that staff was allowed to
interpret the code in a letter in the record. He addressed the assertion that the site was flat
by pointing out it had a daylight basement house on it. When asked, he said he had not
measured the slope of the footprint, but he believed it was close to 25% slope.
Mr. Needham moved to continue LU 08-0028 to February 2, 2009; keep the record open
to receive written testimony until January 28th, and allow rebuttal testimony to be
submitted until 5 p.m. January 29, 2009. Mr. Heredia seconded the motion and it was -
passed by unanimous agreement.
VI. GENERAL PLANNING & OTHER BUSINESS
VII. ADJOURNMENT
There being not further business Chair Stadnik adjourned the meeting at 11:30 p. m.
Respectfully submitted,
4
Ja'ce Reynolds
Administrative Support
L\dre\minutes\January 21,2009.doc
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