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Approved Minutes - 2018-10-23 2: s� CITY COUNCIL SPECIAL MEETING lbACMINUTES v �_ O October 23, 2018 REGO� 1. CALL TO ORDER Council President Buck called the special City Council meeting to order at 6:32 p.m. on October 23, 2018, in the City Council Chambers, 380 A Avenue. 2. ROLL CALL Present: Council President Buck and Councilors LaMotte, Gudman, Kohlhoff, O'Neill, and Manz Excused: Mayor Studebaker Staff Present: Scott Lazenby, City Manager; David Powell, City Attorney; Anne-Marie Simpson, City Recorder; Debra Andreades, Senior Planner; Jessica Numanoglu, Planning Manager; Erica Rooney, City Engineer Others Present: Bruce Goldson, Theta, LLC; Donald Mattersdorff; Christian Huettemeyer 3. PLEDGE OF ALLEGIANCE Council President Buck led the Council in the Pledge of Allegiance. 4. PUBLIC HEARING 4.1 Appeal of DRC Decision on a Request for Approval of a 6-lot Subdivision and Modification of Delineated RP District (LU 17-0084/AP 18-08) Council Report A Exhibit B Exhibit C Exhibits D Exhibit City Council Special Meeting Minutes Page 1 of 10 October 23, 2018 E Exhibits F Exhibits G Exhibits 001, 200-229, and 231-236 G Exhibits 230 and 237 Mr. Powell described the subject of the appeal, emphasizing that the City Council review would be limited to evidence in the record before the Development Review Commission (DRC). He detailed the limitations on evidence permitted in this appeal hearing; in summary, (1)only persons who had testified before or had submitted written evidence to the DRC might testify; (2) no new evidence was to be submitted; and (3) no new issues were to be raised that were not already raised before the DRC. He asked if any member of the City Council wished to make any declarations relating to ex parte contacts, bias, or conflicts of interest. Councilor Kohlhoff disclosed that she had joined Mr. Mattersdorff for a visit to Cedar Street approximately two and a half years earlier, prior to her election to City Council. Additionally, she described a conversation with Mr. Mattersdorff within the past week to 10 days in which he had simply mentioned this appeal hearing being scheduled in relation to a flag-lot issue he had. Councilor Manz declared that she had had contacts of various types regarding the subject property over the past six years, with no recent conversations specific to the property. Approximately one week earlier she had spoken with Mr. Mattersdorff, but the conversation dealt only with issues of City Council candidacy. Councilor LaMotte disclosed his participation in a tour of the site about four years earlier as a member of the Planning Commission; subsequently he had conversed with seven to 10 residents of the area and had visited the site several times. These conversations with residents, including Mr. Mattersdorff, had focused primarily on a potential City purchase of the property prior to the current submittal. He had recently learned about the PARKS Board recommendation to purchase the property and had also visited the site again. Councilor Kohlhoff added that she had been approached recently by an unidentified woman who supported this PARKS Board recommendation, as well. Councilor O'Neill noted that he had toured the site with Mr. Mattersdorff six years earlier and more recently with area neighbors who were interested in purchase of the property. He also disclosed that he had served as liaison to the PARKS Board at a time when numerous citizens had appeared before the Board in support of the property purchase. Councilor Gudman declared that he had toured the site about a year earlier with residents; he had had conversations about it, but none in the last several months. Councilor Manz noted that she resides at the corner of Laurel and Yates streets, approximately five houses away from the subject property. Councilor Buck indicated that he had last visited the property about four years earlier. His conversations with various people over the past year or so about the property had been related only to a potential purchase by the City. Mr. Powell noted that many of the declarations related to conversations about property purchase, which was not one of the criteria for consideration in the appeal. He asked if any Council members believed those conversations about purchase would hamper their ability to decide the appeal based solely on the code and the record. No concerns being heard, Mr. Powell asked if anyone in attendance wished to challenge any City Council member's right to consider the appeal. No City Council Special Meeting Minutes Page 2 of 10 October 23, 2018 challenges were heard. Finally, he reviewed the format for the public hearing as shown in the agenda, including time limits for testimony and related information. Staff Report Ms. Andreades presented an overview of the site and related factors, including the Resource Protection (RP) District, as discussed in the Council Report. With accompanying PowerPoint slides, she outlined the proposed layout for a six-lot subdivision on the 2.08-acre site and reviewed key points pertaining to lot sizes, density requirements, and applicable allowances for Sensitive Lands and the stormwater tract. The proposed six lots, she noted, would meet the minimum density requirement. Prior to discussing the issues on appeal, she confirmed that the appellants had withdrawn their argument concerning stormwater management (Council Report, p 4-5); the remaining subject of appeal, then, concerned flag lots. She reminded Council that the application had been submitted on December 18, 2017, prior to the April 5, 2018, effective date of code amendments that limited the number of flag lots on an access lane. Therefore, per ORS 227.178(3)(a), the application is reviewed under the standards in effect on the date of application. Accordingly, staff found Lots 2 through 6 to be flag lots, while Lot 1 had more than the required amount of street frontage and was therefore not deemed a flag lot. The DRC had approved the project with the proposed flag lots, as discussed in Exhibit D-001 to the Council Report. She discussed 2015 City Council findings that upheld the flag-lot definition in an appeal, pointing out similarities between the two projects. Finally, she asked Council to consider the options for this appeal (Council Report, p 5). Questions of Staff In response to Council President Buck's hypothetical question, Ms. Andreades indicated that, absent a private access lane, these would not be flag lots. Access would be from a public street, necessarily wider, and they would be designated as regular lots under the R-7.5 standard. At the request of Councilor Manz, she clarified the frontage location on Lot 1 and confirmed that the entire site had consisted of one legal lot of record. Regarding the RP District reduction requested by the applicant (Council Report, p 1, second bullet), Councilor LaMotte requested clarification. Ms. Andreades confirmed that the DRC had not granted the reduction; she explained that the final plat was not yet available and addressed additional questions about how that would compare to the site plan. Councilor LaMotte questioned the feasibility of the six-lot configuration once Lots 4, 5, and 6 were cut down. Ms. Andreades provided further clarification of the lot-size calculations. She noted that Sensitive Lands code allows for reductions where the lot is adjacent to an RP District, as approved by the DRC; despite the smaller lot sizes, the applicant had the opportunity to meet standards of the R- 7.5 zone, with an expected impact on the allowed lot coverage. Councilor LaMotte asked about the likelihood that the entire Habitat Benefit Area would be clear-cut. Ms. Andreades indicated that some trees would be saved; however, removals would be necessary for the access lane construction and, by permit, when houses were built. In follow-up with Council President Buck, she confirmed that lot coverage was reduced proportionally in such situations, based on both height and the size of the lot. City Council Special Meeting Minutes Page 3 of 10 October 23, 2018 Councilor O'Neill inquired about the number of similar developments subject to the previous flag- lot code that might still be anticipated. Ms. Numanoglu stated that she was not aware of any such projects that were pending. Expressing concern about the amount of time that had elapsed during this application process, Councilor O'Neill asked staff to clarify timeline requirements for an application. Ms. Andreades reviewed the process, noting that the majority of initial submissions were incomplete and it was reasonable to allow time for applicants to revise and respond with information needed by staff. Mr. Powell reiterated the requirement, both under State law and City code, to proceed under then-current standards in effect at date of filing. He provided additional details about the responsibilities and time constraints for applicants and the City during the review process. Councilor Gudman posed questions about the number of lots possible if the application had been submitted after the effective date of the new flag-lot standards. Ms. Andreades explained that, for a development of more than a single lot with frontage plus two flag lots on the access lane, the applicant would be required to provide a public street. Under this scenario, based on lot size, six lots would be required in order to meet the minimum density standard. Councilor LaMotte took issue with the feasibility of this, and Ms. Andreades reiterated how lots adjacent to an RP District could be reduced in size; density could then be transferred to other parts of the site, thereby achieving the required density, i.e., six lots. The lots and the houses would necessarily be significantly smaller. With a subdivision and public street, she added, the minimum-density standard would apply. The alternative would be a three-lot partition, which is not subject to the standard. In response to questions from Councilor Manz, Ms. Andreades clarified that only the access easement or public street is deducted from the net developable area; RP District square footage remains. The applicant could therefore transfer the amount of RP area to a portion of the site not delineated as RP District. With regard to minimum lot size in a hypothetical public-street scenario, she indicated that there would likely be a need for reallocation of area among the lots and changes to the configuration. Ms. Numanoglu cited an earlier development on a site with a large percentage of Sensitive Lands. In this case, the density was transferred to the non-resource area and a development of townhomes proceeded, as allowed by code. Testimony of Applicant Bruce Goldson, Theta, LLC, PO Box 1345. Lake Oswego, consultant to the property owner, described their process over the past three years as options were considered for the site, including potential sale to the City or another party. Eventually the six-lot project plan was determined to be the best option. They agreed that the five lots without frontage were flag lots per the code, and deemed the access easement preferable to extension of the public street. The six lots were appropriate, too, because of the extreme size of the RP District. At this time their plan is to remove 27 trees to provide for the roadway and utilities; as opposed to clearcutting, they would recommend saving all appropriate trees. Designs for houses to be built were not known at this time, but the applicant indicated that staff had correctly deemed the five lots without frontage to be flag lots as they are completely separated from the right-of-way. Testimony of Appellant City Council Special Meeting Minutes Page 4 of 10 October 23, 2018 Donald Mattersdorff, 930 Bullock Street, and Christian Huettemeyer, 1044 O'Brien Street, testified as appellants. Mr. Mattersdorff explained that his concerns related to a portion of the code that remained unchanged with the April 5, 2018, amendments, i.e., the definition of a flag lot. Quoting from the code, he challenged the applicant's interpretation that Lots 2 through 6 were positioned behind Lot 1; further, he disagreed with the view that a lot situated behind any adjacent lot could be deemed a flag lot. He asked Council to recognize that Lots 2-6 were not located behind any lot and to apply the plain-English meaning of the word "behind". He disagreed with claims that the definition was vague and believed its interpretation should be clear. An interpretation that these five lots were flag lots was to render the code meaningless, he opined. Council should reject the application because these lots did not meet the definition. Mr. Huettemeyer acknowledged the similarities of this project and the earlier Cedar Street development in which the City Council had determined the flag-lot definition to be applicable and subsequently approved the project (Council Report, p 3). However, the appellant believes this was not a precedent that Council should consider inexorable. In the current situation, he believes Council has been provided an erroneous interpretation of the flag-lot definition. As discussed by Mr. Mattersdorff and heard in testimony before the DRC, he suggested this had led to an absurd conclusion that a flag lot will always be available for development, making it questionable as code. Mr. Mattersdorff added that citizens wished to have the code's protection, as written, from inappropriate development such as this. Council President Buck indicated that no one had requested the opportunity to present testimony in favor of the application nor neutral testimony. Testimony in Opposition (to the application) Christy Clark, 353 Ash Street, expressed her support for the appellant's position because of frustration with information provided throughout the process, which ultimately she found to be inconsistent with the DRC findings. The DRC's report, presented behind closed doors, conveyed that the neighborhood's concerns had not been heard, and this was an important issue for her. In response to Councilor O'Neill's inquiry about points she felt had not been heard, Ms. Clark cited the desire for public access to the RP District. She described the frustration of seeing this matter addressed by a citizen commission, yet reflecting a different view than what had been heard in public meetings (Council Report, Exhibit B-001, p 12-13 of 21). In follow-up, Councilor O'Neill asked about reasons the community wished to have access to the area. Ms. Clark indicated that visual and physical enjoyment of the woods was a priority; as opposed to the prospect of a gated or walled-off community, it would create a win-win for the developer and the public. Applicant's Rebuttal Mr. Goldson expressed agreement with staffs rationale for identifying Lots 2-5 as flag lots. In accordance with code, the only possibilities were to regard them as regular lots or flag lots. They were located behind adjacent lots and would take access off a private easement, and thus deemed flag lots. Regarding the matter of public access, he noted that the RP District is currently under private ownership and that the owner is in conversation with the Parks Department about potential ways to allow access to the general public. This would be an open and ongoing City Council Special Meeting Minutes Page 5 of 10 October 23, 2018 discussion, possibly involving some type of ownership transfer or other agreement, he noted. While confident that some means could be found to make it part of the current Hallinan Woods, he noted that the land remains the responsibility of the owner until such time as that may be achieved. Asked by Council President Buck about the owners' willingness to remove the existing fence, Mr. Goldson advised that they were open to this and to other possibilities. He reminded Council that the entire property was still for sale. Prior to calling for related discussion of options if Council were to approve the application, Council President Buck closed the public hearing. Councilor LaMotte discussed the need for the development to be appropriate for the city, suggesting that Council had the opportunity to make an interpretation beyond the precedent cited by staff. Ms. Andreades responded to his questions about the proposed access lane, and Councilor LaMotte opined that this would be the time for Council to consider a new interpretation of flag-lot code that would avert the scenario on Cedar Street. Councilor Kohlhoff emphasized that the flag-lot definition in LOC 503.10.003 was fundamental to the matter before Council. She highlighted various points of confusion, including specific examples from the DRC record, as to interpretation. She expressed support for the appellant's position that the staff interpretation was not based on literal interpretation of the word "behind" in the definition and endorsed the view that Council was not bound by code to follow a previous interpretation of the flag-lot definition. In her view, there was a deficiency in the findings of the DRC, i.e., the absence of any reference to LOC 50.10.003; on this basis alone, she would reverse their decision. She discussed concerns about four trees, most notably the removal of Tree No. 296, citing code dealing with exceptions, as discussed in the DRC findings (Exhibit F-001, p 7 of 21) and drew Council's attention to pertinent portions of Exhibits F-001 and F-012, among other references. There was insufficient basis for saying there is no reasonable alternative that would allow the property to be used as permitted in the zone, she asserted. She objected to determinations about significance or impacts of removing the other three trees and believed the interpretations of DRC and staff conflicted with Goal 5 and with City policy to preserve tree canopy found in LOC 55.02.010. She reiterated that she would vote to reverse the DRC decision. An exchange followed Council President Buck's inquiry about undesirable trade-offs that might result if the applicant were to return with a proposal entailing a public street. Councilor O'Neill noted that the 30' paved width of the proposed access lane, to include parking, was wider than many of the city's streets. Staff addressed various Councilors' questions, clarifying allocations of space for through travel, parking, and landscaping in comparison to City streets and other access lanes. Councilor Manz described specific concerns about emergency responders' access on the lane, including potential conflict with garbage trucks and parked vehicles of visitors. Ms. Rooney noted that the lane's "hammerhead" design provided a turnaround opportunity for fire and garbage trucks, an option not found in some other areas. Councilor LaMotte asked Ms. Rooney what she would consider the minimum width for a road that would serve six lots, from the standpoint of safety and other public concerns. She identified right-of-way and pavement widths as the key factors, describing their distinct differences. An acceptable width could depend on various considerations, including lot configurations and available frontage. A 28-foot lane with City Council Special Meeting Minutes Page 6 of 10 October 23, 2018 parking, for example, might be better than some existing streets, while a 20-foot lane without parking could be problematic in another area. In addition to his remaining concerns about open-space and tree-preservation issues, Councilor LaMotte indicated that the key item was interpretation of the code language related to "behind the lot". He asked for more information about Council's leeway in making an interpretation. Mr. Powell noted that a precedent had been set with the previous Council's decision and its consistent application by staff; however, he affirmed that no decision-making body was precluded from deciding that a previous Council interpretation was clearly wrong, so long as there was a rationale for doing so. He recommended specific considerations for Council if they chose to take this course. Council President Buck raised the possibility of imposing a condition of approval requiring that the open space remain unfenced. Discussion ensued, with Mr. Powell reminding Council that the matter before them was a permitting, rather than legislative, situation. He was not aware of any aspect of the code that would mandate prohibition of a fence where it was otherwise allowed. Following additional staff discussion, he suggested that if the applicant was willing to accept such a condition, it might be feasible; however, imposing a condition not supported by code could be problematic. In response to Council President Buck's comments about mitigation of impacts on wildlife, Mr. Powell indicated that Council might consider a condition requiring fence removal. However, the applicant would need to be provided the opportunity to comment on that imposition. Councilor Manz inquired about consideration of neighborhood impacts in code for similar developments, i.e., with abutting open space. Ms. Numanoglu advised that the clear and objective zoning standards did not include a compatibility aspect, although proximity to public open space increased the likelihood that Sensitive Lands were present, hence related protections. In continued discussion, Councilor LaMotte described potential for providing open access to the natural area, with no fencing to be allowed around it except as prescribed by code; a second priority should be to conduct negotiations that would add this space to City park lands. Mr. Powell advised Council against including the purchase negotiations in their permit decision. Councilor LaMotte indicated that he simply wanted to ensure this decision did not impede such an acquisition in the future. Ms. Numanoglu added that providing open space is a requirement of the proposed subdivision, and related discussion followed. Councilor Kohlhoff acknowledged staffs respect for precedent. However, her perception was that there were differences between the current project and the one on Cedar Street; she detailed key points and cited references in the record. Council should not be constrained by the outcome of the Cedar Street project, she opined. Councilor Gudman expressed concern that, if the proposed project did not go forward, the applicant could then submit a project with a public street. This would involve a 60' width and significantly more hardscape, and the City would have no ability to shape these impacts within code. After confirming that Parks Department/applicant negotiations were related to a potential public access easement, he asked about some means of requiring removal of the fence if talks were unsuccessful. Following additional discussion, Mr. Powell reiterated his caution that the Council's decision needed to be narrowly focused on the permit request; an "if/then" approach regarding the fence was not advised. Mr. Lazenby noted Council President Buck's earlier City Council Special Meeting Minutes Page 7 of 10 October 23, 2018 suggestion that findings might be included to document benefits of improved wildlife passage as development moved forward. Prior to requesting the applicant's comment on possible new conditions of approval, Council President Buck asked Councilor Kohlhoff about tree-related issues that she wished Council to consider. She identified Tree Nos. 296 and 283 as priorities for saving, and also Nos. 285 and 55. At Council President Buck's request, Ms. Andreades described the applicant's efforts relating to preservation of Tree No. 296, as illustrated by a slide showing a portion of Exhibit F- 013. In ensuing discussion, she and Ms. Rooney responded to Council members' questions and conveyed additional information found in the record, notably in the Tree Removal Plan (Exhibit E- 008). Councilor Kohlhoff drew her colleagues' attention to the photograph on the last page of Exhibit F-013, asking for clarification of how the determination was reached that the tree could not be saved. Ms. Andreades advised that the DRC found the removal necessary for development. Council President Buck called for any additional comments from Council regarding the trees, based on the public record. Councilor LaMotte expressed support for exploring further refinement of the plan to prevent removal of Tree No. 296, as well as some perimeter trees. Council President Buck asked for verification that the record showed the necessary changes to utilities to be too onerous, as well as resulting in removal of additional trees not shown in the Tree Removal Plan. Ms. Rooney reviewed a number of factors illustrated by the slide from Exhibit F- 013. Councilor LaMotte reiterated the desire to find an approach that would leave Tree No. 296 in place, asking if it could be done without excessive cost and with the applicant's collaboration. Council President Buck reminded Council of the need to focus on the application as presented. While acknowledging that he was not hearing consensus on the issue of tree preservation, he invited the applicant to comment on potential conditions of approval. Mr. Goldson indicated that the owner would find it acceptable to have the existing fence along the RP District boundary removed, in the near future if not immediately. Following a brief exchange in which staff suggested timing for the condition to be met and potential inclusion as shown in Section D of the DRC findings (Exhibit B-001, p 19), Mr. Goldson advised that this would be agreeable. Regarding Council's discussion of Tree No. 296, he commented on issues related to the plan shown on Exhibit F-013. While he was not opposed to saving the tree, he noted that it was already encumbered and had been impacted by prior development. Among other considerations, he cautioned that the suggested diversion was not likely to ensure survival of the tree, based on his experience. Councilor Gudman commented on a case in point near Kerr Parkway. Councilor Gudman moved to affirm the DRC's decision and approve LU 17-0084 with the modifications about the fence as discussed by Council and responded to by Mr. Goldson in this meeting,which would require removal of that fence prior to final building inspection or occupancy of any dwelling on any lot. Councilor O'Neill seconded the motion. Additional discussion followed a request from Councilor LaMotte that the condition should disallow any future fences that would block off the RP area. Ms. Numanoglu provided information about the current fence location and other considerations related to the RP District. Mr. Powell discussed how a condition of approval precluding a fence in this location might be proposed by Council, subject to finding supporting evidence in the record; he recommended that Mr. Goldson City Council Special Meeting Minutes Page 8 of 10 October 23, 2018 be asked to comment on whether or not that condition would meet with the owner's approval. Mr. Goldson indicated that it would be acceptable, with the caveat that a handrail or other structure might be needed at the culvert where the path crosses the creek to prevent falls there. Councilor Gudman noted his willingness to accept the modification of his motion as proposed by Councilor LaMotte. Councilor O'Neill affirmed his second accordingly. Councilor Manz indicated that she believed Council should reverse the DRC's decision for the reasons discussed by Mr. Mattersdorff and Councilor Kohlhoff. Her primary issue was the code language and interpretation related to the word "behind", hence she would oppose this motion. A roll call vote was held on the motion as modified, and the motion failed, with Councilors Buck, Gudman, and O'Neill voting 'aye'. Councilors LaMotte, Kohlhoff, and Manz voted 'no'. (3-3) Council discussion of next steps ensued, with Councilor O'Neill raising questions of potential outcomes and staff providing suggestions and clarification. Councilor LaMotte reiterated his objections, adding that creativity was lacking in the project as proposed. Regarding a potential proposal that could include a public street, Council President Buck noted that the density requirement would stand; Ms. Andreades reiterated that a three-lot partition would provide the alternative for lower density, with no requirement to come before Council. The suggested condition for fence removal would achieve a compromise that makes the best of the situation, Council President Buck opined, and he hoped for reconsideration by at least one of his colleagues. In extended discussion of development options and code implications, staff responded to additional questions and comments from Councilor LaMotte. Councilor Kohlhoff emphasized the importance of saving the two healthy trees (Nos. 296 and 283) and her belief that this was a reasonable expectation. In response to inquiries from Councilor Gudman, Councilors Kohlhoff, LaMotte, and Manz indicated that a condition requiring preservation of the two trees would not, in itself, cause them to support the application. In determining next steps, Council members discussed pros and cons of moving forward with the application decision at this time in comparison to scheduling another meeting when the Mayor would be available. A brief exchange regarding the timeline followed. In response to a final question from Council President Buck, Councilor Kohlhoff confirmed that she would not support the motion as presented prior to adding preservation of the two trees. Councilor Gudman moved to continue deliberations to October 30th at 3:00 p.m. Council President Buck seconded the motion. A voice vote was held, and the motion passed, with Councilors Buck, LaMotte, Gudman, Kohlhoff, O'Neill, and Manz voting 'aye'. (6-0) 5. ADJOURNMENT Council President Buck adjourned the meeting at 9:08 p.m. City Council Special Meeting Minutes Page 9 of 10 October 23, 2018 Respectfully submitted, 6A4A/X-W a e .ram-v-- Anne-Marie Simpson, City Recorder APPROVED BY THE CITY COUNCIL: ON bCG2A , ZD Kent Studebaker, Mayor City Council Special Meeting Minutes Page 10 of 10 October 23, 2018