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Approved Minutes - 2000-07-17CITY OF LAKE OSWEGO DEVELOPMENT REVIEW COMMISSION MINUTES July 17, 2000 I. CALL TO ORDER Chair Julie Morales called the Development Review Commission meeting of July 17, 2000, to order at 7:03 PM in the Council Chambers of City Hall, at 380 "A" Avenue, Lake Oswego, Oregon. II. ROLL CALL Commission members present included Chair Morales and Commissioners Sheila Ostly, Douglas Kiersey, Dave Powers and Bruce Miller. Commissioners Nan Binkley and Doug Cushing were excused. Staff present were Hamid Pishvaie, Development Review Manager; Elizabeth Jacob, Associate Planner; Sandy Ingalls, Assistant Planner; Evan Boone, Deputy City Attorney and Janice Bader, Senior Secretary. III. APPROVAL OF MINUTES Mr. Kiersey moved for approval of the Minutes of June S. 2000, corrected as follows: • Delete the following sentence from Page 4, paragraph 5: "Ms. Morales suggested the roofs could be lowered in places." • In the underlined dark area on Page 8: Identify that it was the applicant speaking. • On Page 9, first paragraph, clarify that it was the applicant who agreed to waive the 120 -day rule. • On Page 11, in the last sentence of the small paragraph after the large paragraph in the middle of the page: Remove language "She suggested the entryway design could feature wood." • On Page 11, two paragraphs after the above referenced paragraph: Strike the sentence that indicated the applicant returned from the break and related they knew how to modify the row homes. City of Lake Oswego Development Review Commission Page 1 of 14 Minutes of July 17, 2000 Ms. Ostly seconded the motion and it passed with Ms. Morales, Mr. Kiersey, Ms. Ostly, Mr. Miller and Mr. Powers voting yes. Ms. Binkley and Mr. Cushing were not present. There were no votes against. IV. OTHER BUSINESS - Findings, Conclusions and Order LU 00-0007, a request by GRAMOR Oregon Ms. Ostly moved for approval of LU 00-0007-1383 Findings, Conclusions and Order, amended as follows: • Page 6, Line 19, paragraph (b.) was to indicate that the Commission also found the a revision to the site plan that would provide an additional foot of landscaping at the perimeter of the town house units on and the street side would provide needed additional relief along the streetscape. • On Page 10, line 40 the language indicating rafter ends were to be 114 inches x 3 inches" minimum was to be changed to "4 -by." • Page 13, Line 10 (Condition 7) was to specify that the sequoia tree was not to be included in the landscaping and that the applicant's landscape architect was allowed to substitute a smaller type of evergreen of his choice from the City's list of street trees. Mr. Miller seconded the motion and it passed with Ms. Morales, Mr. Kiersey, Ms. Ostly, Mr. Miller and Mr. Powers voting yes. Ms. Binkley and Mr. Cushing were not present. There were no votes against. LU 99-0054, a request by David Emami Ms. Ostly moved for approval of LU 99-0054-3484 Findings, Conclusions and Order. Mr. Powers seconded the motion and it passed with Ms. Morales, Mr. Kiersey, Ms. Ostly, Mr. Miller and Mr. Powers voting yes. Ms. Binkley and Mr. Cushing were not present. There were no votes against. V. PUBLIC HEARING LU 00-0039, an application by PMP, LLC, to develop a five -lot subdivision with two- story townhouses. Seven trees are proposed to be removed for the construction of the dwellings and public improvements. The following Class 1 variances are also requested: a. A variance to the maximum 55% lot coverage (excluding parking) for the following lots [LOC 48.04.140]: * Lot 1: 2.5% variance to increase lot coverage to 57.5% * Lot 2: 24.5% variance to increase lot coverage to 57.5% * Lot 3: 13.6% variance to increase lot coverage to 68.6% City of Lake Oswego Development Review Commission Page 2 of 14 Minutes of July 17, 2000 * Lot 4: 2% variance to increase lot coverage to 57% * Lot 5: 6% variance to increase lot coverage to 61 %. b. A 10 -foot variance to the 10 -foot rear yard setback for the dwellings on Lots 4 and 5 [LOC 48.04.150(1)(c)]. The site is located at 141 "C" Avenue, Tax Lots 8300 & 8400 of Tax Map 21 E 3DA. Staff coordinator is Elizabeth Jacob, Associate Planner. Chair Morales opened the public hearing and explained the procedures and time limits to be followed. She asked Commission members to report any ex parte contacts, site visits, biases or conflicts of interest. All Commissioners present indicated they had visited the site. Ms. Ostly also reported that although she had accomplished an appraisal of the property for the lender, Washington Mutual Bank, at a time when the lender's assumption was that the site was two vacant single-family lots. She said she believed that she could make an unbiased decision regarding the application. Ms. Morales reported she was acquainted with the adjacent neighbor, but believed she could make an unbiased decision based on the evidence to be presented. Ms. Morales asked if any person in attendance desired to challenge any Commissioner's right to hear the application. No one presented such a challenge. Elizabeth Jacob, Associate Planner, presented the staff report. She related the applicant desired to develop a five -lot subdivision featuring two-story townhouses on a corner lot that was zoned R-2. She said that the applicant proposed to remove seven trees and the development would require several variances. She noted the development would serve as a transitional project between commercial properties to the south, intensive residential density to the east and R-6 (single family residential) zones to the west. She advised that construction of a two-story office building had been approved on an adjacent site; properties zoned R-0 and a nonconforming medical office were across the alleyway from the site and attached townhouses and zero lot line units existed on the same block as the site. She said the applicant proposed to remove a significant maple tree within the public right of way in order to accommodate a sidewalk ramp to the street. Two small trees on Second Avenue and four other internal trees were proposed to be removed. Three existing large walnut trees and three trees on the northerly property line were to be retained. Ms. Jacob recalled that the R-2 zone had been created 1996 as part of a global rezoning of the First Addition Neighborhood. It had been created to provide a higher density transitional zone between the R-6 and R-0 zones. She advised the proposal met R-2 zone requirements for height (a maximum of 28 feet) and floor area ratio (a maximum of 1.2). She advised the zone also limited the development to 55% lot coverage; front, rear and street -adjacent side yard setbacks of 10 feet; and a seven -foot setback for the remaining side yard. She advised that the proposed design that would create frontages on both C Avenue and Second Street with zero side and rear yard setbacks for two of the properties. She explained that this meant that variances were required for the rear yard setbacks of Lots 4 and 5 and all of the lots required variances to the lot coverage requirement. She explained that the area of rear access from the alleyway had been deducted from the gross City of Lake Oswego Development Review Commission Page 3 of 14 Minutes of July 17, 2000 lot area prior to calculation of lot coverage (as provided for in the Code). She explained that if the proposal had been submitted as an application for Planned Development (PD), no change in design would have been necessary; no rear yard variance would have been required; and the proposal would still have been over the allowed overall lot coverage percentage for a PD. She recalled the applicant had considered different lot configurations and building designs and compared them with the higher density requirements of the R-2 zone. They had determined that although the proposed design required variances, it was the best design for the neighborhood and for a transitional zone because it provided street frontages on both streets. She noted that a proposal for a typical townhouse development would have resulted in a long side yard facing one of the streets. Ms. Jacob explained that both the Comprehensive Plan and the First Addition Neighborhood (FAN) Plan encouraged access off of alleyways, as the applicant proposed for the first three lots. She advised the planned access meant that either the size of each unit had to be reduced (by approximately 350 square feet per unit) to meet the 55% lot coverage requirement, or a variance to the lot coverage requirement for the three lots was necessary. She explained that choice was the basis of the applicant's argument related to the hardship requirement of the variance. She advised that staff found that the proposed configuration would not create any greater negative traffic or visual impact to the neighborhood than would any other design. She advised that the applicant was requesting the minimum variances possible. She noted that because the units differed in size, they allowed potential owners a choice of design. She said staff found the applicant's design was not only not in conflict with the Comprehensive Plan, but actually implemented its provisions for a variety of housing styles; access from alleyways; and appropriate scale and proportion when compared to the homes in the R-6 zone. She concluded the proposal met the variance criteria. She said the applicant's proposed colors, materials and drawings complied with R-6 zone design criteria in the FAN Plan (even through the site was zoned R-2). She recommended that all lighting should be designed to prevent glare onto the adjacent neighborhoods. She recommended a condition of approval that there was to be no roof -mounted mechanical equipment (although the applicant had not proposed it). She advised that the proposed building met the Building Design Standard. She noted that because the dwellings fronted on both streets, the development would be a much more neighborhood -friendly presence than would a single row of narrow townhouse facades. She said the applicant's use of the slope to break up the building height reduced the massing of the buildings to a scale in keeping with the adjacent residential detached structures. She said the applicant had met the Parking Standard by including garages. He had met the Park and Open Space requirement of 20% of the gross land area via the proposed front yard and alleyway spaces (which were typical for row homes). She recommended a condition that a homeowners association be established and be made responsible for landscape maintenance. She recommended that some varieties of trees included in the landscape plan - Oregon white oak (Second Avenue street trees) and western red cedar (in the front yards along C Street) — be replaced by tree species that were better suited to the small area of the front yards and landscape strip. She also recommended that the variety of street tree planted at the development should be different from those featured in the nearby commercial area, in order to indicate a change in uses. City of Lake Oswego Development Review Commission Page 4 of 14 Minutes of July 17, 2000 Ms. Jacob noted the applicant planned to install an underground tank for storm water detention between the dwelling on Lot 1 and the alleyway. She recommended that the development's CC&Rs be required to provide for a maintenance contract to ensure perpetual maintenance of the facility. She recommended that if the property to the south of the site had not completed installation of water service lines by the time the applicant started construction, the applicant was to be made responsible for installation of a water line with a capacity to meet fire flow requirements. She recommended that the applicant be required to improve C Avenue by installing a corner ramp at the existing curb and should be required to install a sidewalk along Second Street that would eventually connect to sidewalks going north and south toward downtown and the Transit Center. She recommended that a four -foot -wide graveled area between the sidewalk and landscape strip and the curb be asphalted at the time the roadway was expanded (and after appropriate public notice). She clarified that the recommendation met the "proportionality test" because impacts from the development had been considered. She recommended a condition that the applicant was to submit a tree protection plan — prepared by a certified arborist - to protect the remaining trees during construction. The plan was to be submitted prior to approval of a building permit. She recommended approval of the application subject to the conditions recommended in the staff report. She clarified for the Commissioners that the distance between the property line and the structures along C Street was to be approximately sixteen feet, and the sidewalks were to be five feet wide. Applicant John Pinson, 6575 7th Avenue, Lake Oswego, 97034, stated that he owned the site. He related that he and his family had resided in the neighborhood for many years. He explained that he had met with the neighborhood association and City staff prior to beginning the design process and had included their ideas in the proposal. He said he intended that the development would serve as transitional buffer between commercial and residential uses. He pointed out the proposed building materials and design elements would be applied in a manner that would give each unit a unique appearance. The floor plans and sizes of units were to be varied to accommodate an intergenerational mix of residents who would contribute to the neighborhood. He introduced his design and development team including Peter Perrin, the co -developer, and Barry Smith, the architect. He noted Mr. Perrin had extensive experience with row house developments, including low and moderate income row house developments in the St. John's neighborhood of Portland. He noted that Mr. Smith had specialized in urban infill housing and development as a professor at Tulane University and while working in the cities of New Orleans and Portland. He thanked the staff for their tutelage and patience. Barry Smith, 620 SW Stn Avenue, #604, Portland, OR, 97201, project architect, recalled he had considered existing conditions around the site, including the scale and density of surrounding housing and FAN Plan requirements. He emphasized that he believed the orientation of the garages and front doors of the units was very important. He City of Lake Oswego Development Review Commission Page 5 of 14 Minutes of July 17, 2000 explained that positioning the front doors so residents could see what was happening outside their front door was critical to maintaining a peaceful neighborhood. He pointed out that even the end unit that faced the alleyway had a bay window looking onto the street. He said he intended the units to resemble single-family dwelling units that had been pushed together. He related that he had constructed similar units elsewhere in the Portland metropolitan area. He noted that the inclusion of porches and decks provided the occupants with additional outdoor space. He indicated he intended the design elements, rooflines and gables to create a sense of smaller scale. He pointed out that brick veneer was to be used as an accent feature that was placed high on one building and lower on another building in order to provide depth and complexity to the street fagade. He explained that he intended to use native plant species that could survive summer and winter weather. He acknowledged that walnut trees required a lot of maintenance. He explained an arborist had recommended the use of cedar trees because that species could handle development around their root system better than Douglas fir trees. He said the applicant would agree to use a substitute species of tree as the staff had recommended. Mr. Smith clarified for the Commissioners that the elevations were more up to date than the perspective view. He also clarified that although the applicant proposed to use brick on the east side of the development he would consider the Commissioners' advice regarding the use of brick there. Mr. Kiersey observed the access for Lots 1, 2 and 3 was very tight. Mr. Smith related that he had followed dimensional guidelines provided by the Department of Transportation, although he had found that he could maneuver vehicles within less space. He explained for Mr. Powers that he had created the landscape plan and arborvitae were to serve as a screening hedge on the north side of the development. He added that he planned to plant cedar trees on the south side of the development to provide protection. He explained he had chosen grasses and groundcovers based upon a guidebook that showed which species would survive along driveways and in shady spots. He indicated the applicant was open to suggestions regarding what species might be substituted for the cedar and oak trees. Mr. Powers observed that although white oak was a very slow growing species, in 30 or 40 years it would eventually become so large that it would most likely need to be removed. Mr. Powers suggested that the applicant plan to use more small shrubs and ground cover. Mr. Smith clarified for the Commissioners that water heaters and furnaces were to be located in the double car garages or in the attic or upstairs closet of units that featured single car garages. He indicated that he had positioned stairways in locations that would help to reduce foot travel around dining tables. He pointed out that some units featured eating nooks. Proponents None Opponents None City of Lake Oswego Development Review Commission Page 6 of 14 Minutes of July 17, 2000 Neither for nor Against Eric Jones, 635 Second Street, Lake Oswego, 97034, stated that his mother, Vivian Jones, owned the property to the north of the site. He asked if the applicant planned to install a fence as well as the arborvitae screening. The applicant observed that was not in his plan, and he asked if Mr. Jones desired one to be installed there. Mr. Jones confirmed he did desire a new fence. He explained that the existing fence was old and had been installed by the Jones family in 1960. He also stressed that the applicant should protect the root system of a large walnut tree at 635 Second Street. He said he was not certain the proposed five foot wide buffer area would accomplish that. Rebuttal Mr. Pinson stated he would agree to a condition to install a fence between the development and the Jones property. He questioned how he could design appropriate access to the development and also provide for a larger mitigation area for the walnut tree on the Jones' property. Mr. Jones clarified the tree was seven feet from the property line and its canopy extended over the site by 20 to 30 feet. Mr. Smith clarified that no foundation or deep digging was planned under the tree's crown (which likely indicated the area of its root system). He estimated that 3 to 6 inches of soil would be disturbed to install the driveway. Mr. Powers agreed that amount of digging would only disrupt a small portion of the tree's large root system. No one requested that the record be held open for additional seven days for submission of additional written evidence or testimony. Ms. Morales closed the public hearing and opened deliberation. The applicant waived his right to additional time in which to submit a final written argument. Deliberation Ms. Ostly noted the plan provided different floor plans for people in different stages of life. Mr. Kiersey commented the design was interesting and the development would be a nice addition to the neighborhood. Mr. Powers suggested the applicant include a few more plants in the landscape plan, especially along the borders. He suggested plants that would complement the texture of the brick. Ms. Ostly and Ms. Morales discussed whether brick should be extended around the corner to the alleyway and concluded that was not necessary. Ms. Morales observed the design fit the immediate neighborhood, served as a transition between uses, and did not resemble a typical row house design. She also indicated she liked the design details and the variety of floor plans. City of Lake Oswego Development Review Commission Page 7 of 14 Minutes of July 17, 2000 Mr. Boone advised the commission against imposing a requirement to install a fence unless it was necessary to mitigate the requested variance to the lot coverage standard. Ms. Ostly moved for approval of LU 00-0039, subject to the conditions in the staff report with the following modifications: • Condition C.(5.)(d.) was to include an additional item (v.) to provide that the final landscaping plan was to be approved by the staff and was to include additional shrubs of 2-4 feet height spaced at 3-4 foot intervals. • Condition C.(5.)(d.)(6.) was to be modified to refer to four trees along the northerly property line (including the walnut tree on the Jones property), and all of the trees within 15 feet of construction. Mr. Powers seconded the motion and it passed with Ms. Morales, Mr. Kiersey, Ms. Ostly, Mr. Miller and Mr. Powers voting yes. Ms. Binkley and Mr. Cushing were not present. There were no votes against. Mr. Morales announced the written findings were to be voted upon at the Commission's August 7, 2000 meeting. Ms. Morales announced a five-minute break in the proceedings and reconvened the meeting at 8:40 PM. LU 00-0053, an appeal by Rosalyn Montgomery and Robert Sotta of the Planning Director's decision to deny tree cutting permit application TC 00-0133 to remove one 31.8 inch Douglas Fir Tree. The site is located at 16830 Chapin Way, Tax Lot 6900 of Tax Map 21E IODD. Staff coordinator is Sandy Ingalls, Planning Technician. Chair Morales opened the public hearing and explained the procedures and time limits to be followed. She asked Commission members to report any ex parte contacts, site visits, biases or conflicts of interest. All Commissioners present reported they had visited the site. Ms. Morales asked if any person in attendance desired to challenge any Commissioner's right to hear the application. No one presented such a challenge. Sandy Ingalls, Planning Technician, presented the staff report (see Staff Report dated June 30, 2000). She recalled the applicant had originally applied for a permit to remove two Douglas Firs (Trees #2 and #3) in order to accommodate a two -car garage and storage unit. She explained that the staff had denied the permit and had requested that the applicant submit a revised plan that would save trees. The applicant had subsequently provided a revised plan and received a building permit. Later, a staff site visit indicated that excavation of the site appeared to follow the applicant's original plan footprint. The City of Lake Oswego Development Review Commission Page 8 of 14 Minutes of July 17, 2000 staff also noticed that no tree protection measures had been taken and a Douglas fir tree (Tree #1) that had not been included in the original tree cutting application had received considerable root damage and had become hazardous. She advised that the applicants had been cited for violating the Code. The citation had been based on the extent of damage found on Tree #1. She noted the roots of Trees #2 and #3 had also been damaged to a lesser extent than Tree #1. Ms. Ingalls related the applicants had thereafter applied for another Tree Cutting Permit to remove the hazardous Tree #1 and the two other trees. At that time they had also submitted an arborist's report. The staff had approved removal of Trees #1 and #3 (which featured root damage after the excavation); however they denied the applicant a permit to remove Tree #2 as a hazard because they found the applicant had not provided sufficient evidence to show it was hazardous. She explained that the applicants had submitted a report from their arborist that had concluded Tree #2 required injections to stimulate root growth; however, in a subsequent report the arborist that had concluded the same tree was a hazard and should be removed. She explained the only change to the site between the first and second arborist's assessment had been the installation of a small black wire that may have impacted one small root. She related the City's arborist had concluded the applicant had not provided sufficient evidence to show Tree #2 was a hazard tree. He had explained that testing of core samples for fungi and rot would have more accurately indicated the health of Tree #2. She advised that if the tree was determined to be hazardous it should also be determined what caused it to become a hazard and if treatment was available. She recommended the staff decision to deny a permit to remove Tree #2 be upheld. She clarified for Mr. Kiersey that the applicant had been cited for a Code violation because the damage to Tree #1 was extensive enough that it was equivalent to removal of the tree without a permit. She noted that Tree #2 also showed damage, but not enough to be considered a hazard. Mr. Pishvaie recalled that he had checked City records to confirm that the applicant's building permit had been issued according to the revised site plan. The records showed the revised plan and an architect's certificate that trees within 15 feet of the construction zone would be protected. After staff had determined that no tree protection plan had been approved for the site, the City's Code Enforcement Specialist had visited the site and had discovered that the roots of the trees had been cut and that damage to Tree #1 was technically equivalent to removal of the tree. It was then that the applicant had been cited for violating the Code. He clarified that the City's Parks Superintendent, who was also an arborist, had rendered a professional opinion that sufficient evaluation and analysis of Tree #2 had not been accomplished to show it qualified as a hazard tree. He advised that staff believed that the applicant could have designed an alternative plan that would have accommodated the new structure and required a smaller excavation but would not have impacted the trees. He summarized that a penalty had already been imposed for the removal of Tree #1, and it was now up to the applicants to show the degree of hazard of Tree #2. He advised that if Tree #2 was determined to be a hazard and removed, then mitigation would be required. City of Lake Oswego Development Review Commission Page 9 of 14 Minutes of July 17, 2000 Mr. Boone advised that it was the applicant's burden to demonstrate that the condition or location of the tree presented a clear public safety hazard or a foreseeable danger of property damage to an existing structure and that such hazard or danger could not reasonably be alleviated by treatment or pruning. Ms. Ingalls confirmed that removal of Tree #3 had been approved, and she clarified for the Commissioners that there was no evidence in the record that demonstrated that removal of Tree #3 would impact the root system of Tree #2. Mr. Pishvaie clarified that Exhibits 2 and 3 were not drawn to scale. Applicant Rosalyn Montgomery, 16830 Chapin Way, Lake Oswego, presented photographs of the site (see Exhibit 16). She explained she would refer to Tree #2 as the "AT&T Tree." She said her 1960 vintage 1,800 square foot house was centered on a long and narrow lot and did not feature a garage. She related that the applicant had purchased the property with the intention of adding a two -car garage and storage area that would be disconnected from the house in order to allow room for future remodeling of the house. She said the lot was heavily wooded and included 39 trees, with 29 trees greater than 10 inches in diameter and nine very large Douglas fir trees. She said the applicants had considered every possible plan to site the garage where they would not need to remove any trees. She explained they wanted to leave room for later expansion of the house, provide for a functional garage, and allow for an appropriate vehicle turning radius without changing the driveway. Then they had submitted the original plan and the original tree cutting permit application to remove Trees #2 and #3. She recalled that at the time the staff denied the permit they had suggested the garage be relocated further south or west and that the storage area be located elsewhere on the property. The applicants had contended that the relocated garage would further impact trees and access would not be available to the storage area if it was in the rear of the property. However, the applicants had worked with the City, revised their plan (against their architect's advice) and relocated the garage further south and closer to the house (compromising some future remodeling space). Ms. Montgomery stated that she and her husband had relied on their architect and contractor and had not been personally aware of provisions of the Tree Ordinance. She explained the excavation had been accomplished (without tree protection measures in place) on a day when no one was home. The next day, after she observed that large roots of Trees #1 and #2 protruded into the excavation, she had stopped construction and consulted Mr. Hickey, an arborist. Mr. Hickey had recommended immediate removal of Tree #1 because of damage to its anchoring roots and because of the risk that it could fall onto their neighbor's garage (see pages 18 — 20 of the staff report). The applicants then had applied to remove Tree #1. The arborist also found that Tree #2 (AT&T Tree) had 30% of its roots damaged, but not damaged anchoring roots. He had advised that it was not an immediate threat and might be salvaged by giving it an immediate injection to its roots. The arborist had also found that Tree #3 had evidence of heart rot and had concluded it was dangerous and should be removed. She said the applicant then applied to remove both Trees #1 and #3 and planned to save Tree #2. However, a couple of days later she City of Lake Oswego Development Review Commission Page 10 of 14 Minutes of July 17, 2000 returned home to find that an AT&T crew had bored an additional hole past Tree #2 in order to replace a cable that had been damaged during excavation. She then requested another tree assessment from Mr. Hickey and he reported on May 5, 2000 (Exhibit 10) that the tree should be removed based upon the areas that had been damaged, the species of the tree, and the proximity of the tree to constantly occupied buildings, in order to ensure safety to persons or property. The applicants had then added Tree #2 to their second application for a tree removal permit. Ms. Montgomery recalled that she had met with the staff on May 19, 2000, when they had advised her that the applicants would receive a permit to remove Trees #1 and #3, based upon Mr. Hickey's report; however, removal of Tree #2 had been denied. She related the staff had acknowledged that it was possible the tree might die and fall over within a couple of years, but they preferred that the applicant maintain the tree for as long as possible. She said they had suggested that the applicants provide photographs and submit another application for a tree -cutting permit at a future time when they observed evidence that the tree was dying. She said she understood the advice meant that the applicants were to build the garage next to the tree (after installing tree protection measures) and allow their children to play in the driveway until there was observable evidence the tree was dead or until it had fallen over. She observed that it would be more difficult to remove the tree after the garage was constructed and she stressed that it made no sense to keep a tree that an arborist had advised her was hazardous. She held that the applicants had demonstrated by submission of their arborist's report that the tree was a hazard. She stressed the safety of her family, her neighbors and her property was at stake. She recalled that the City's arborist had stated he could not determine whether the tree was hazardous, but he had not disputed Mr. Hickey's report. She worried that because it was on the record that the applicants had a safety hazard on their property they would be subject to a liability claim. She stated for the record that if the tree fell and caused damage or death after the applicants had been denied a permit to remove it, the City would be held accountable. She stressed that the applicants had never intended that any trees would be damaged, and they had already paid fines of almost $2,000. She said the existence of a dangerous tree devalued the applicant's property and the neighbor's property. She said if the trees were removed, there would still be 35 remaining trees on the property. She said the applicant's had tried to follow the "letter of the law" regarding their proposal. She requested the applicants be allowed to remove the hazard. She noted her architect and two neighbors were at the hearing and another neighbor had submitted a letter regarding the application (see Exhibit 17). Ralph Terran, Architect, 17355 SW Boones Ferry Road, Lake Oswego, 97035, related that the applicants had built their previous home within a City of Portland conservation easement. He noted that a 30 -year-old master plan for the Lake Oswego site illustrated the location of a carport exactly where the applicant planned to locate their new garage. He also recalled the applicants' had consulted him when they purchased the site to discuss how to expand the modest existing house. He advised the house represented 18% lot coverage, when the zone allowed up to 30% coverage. City of Lake Oswego Development Review Commission Page 11 of 14 Minutes of July 17, 2000 Mr. Boone advised the Commission was to consider the issue of whether the tree was a hazard, and a determination was to be made as to whether the tree represented a danger to people or property. Mr. Terran requested that the Commission respect the applicants' expert's opinion and disregard the opinion of nonexperts. He explained that he had not been able to be on the site the day of the excavation, he had worked with the excavation contractor before, and he did not believe the excavation contractor intended to do any damage to the trees. Dan Reis, 16801 Chapin Way, Lake Oswego, 97034, explained he was the applicants' next-door neighbor and he supported her request to remove all three trees. He recommended the Commission take the applicants' arborist's advice. He acknowledged that the excavation contractor had made a mistake. Hans von Witzenbum, 16826 S. Chapin Way, Lake Oswego, 97034, stated he was the applicants' other neighbor. He said that he favored removal of the tree because it was tall enough that if it fell it could damage any of the three nearby houses, including his home. He recalled the professional arborist's opinion that it could fall. Bob Federspiel, 16755 SW Pacific Hwy, Tigard, OR, held that the frustration the applicants' had to endure was due to the tyranny of law. He opined that the City should be willing to compromise with tax -paying property owners. None None. Opponents Neither for nor Against Rebuttal Ms. Ingalls clarified that she disputed the second arborist's report because she did not believe the small action that had occurred since the first report had suddenly turned the tree into a hazard tree. She recalled the she and the City arborist had visited the site to look for disease, but had not done any coring or excavation of the roots, and had not observed any indication the tree was a hazard and in immediate danger of falling over. Ms. Morales worried that when Tree #3 was removed, the root structure of Tree #2 would be impacted. Ms. Ingalls pointed out that the photographs showed that both trees were part of a tree cluster. She noted Exhibit 16, (Photograph B.) showed other trees close to Tree #2 that would help support that tree's roots. City of Lake Oswego Development Review Commission Page 12 of 14 Minutes of July 17, 2000 Ms. Ostly noted the City's arborist had not concluded the tree was not damaged and had alluded to problems it might have that could be determined after additional tests. Mr. Kiersey asked why the staff found that the applicants' arborist's conclusion that the tree was a hazard was not sufficient evidence. Mr. Boone advised the applicant was to meet the burden of showing the tree was likely to fall, and he noted that the City's arborist had challenged the conclusions of the applicants' arborist. Mr. Pishvaie pointed out there had been two reports by Mr. Hickey, and the first one had indicated that the tree might be saved. He recalled it was common practice for the City to accept removal of up to a 2 - inch diameter root during development. He said that because larger roots had been removed from Tree #2 there was a question of whether that damage was sufficient to determine the tree was hazardous. He noted the City's arborist had reported it might not be sufficient, but he had not done an analysis that would determine that. Applicant Rebuttal Ms. Montgomery stressed the City's arborist had never determined the health of the tree or whether it was hazardous. He had only reported that it could have fungus, and had opined that Mr. Hickey's report was incomplete because he had not checked the tree for fungus. Ms. Montgomery stated that she had not requested that her arborist check the tree for fungus, but had requested that he report on the structural integrity of the tree. She pointed out that the City's arborist's report had not come to any conclusion. She explained that Tree #3 was still standing because her tree removal contractor was reluctant to remove it until the issue of Tree #2 was resolved between the applicants and the City. She opined that Tree #2 would suffer some damage upon removal of Tree #3 because they were very close together. No one requested the record be held open for additional written testimony or evidence. Ms. Morales closed the public hearing and opened deliberation. Deliberation Mr. Powers noted the scale of the exhibits did not provide him with an accurate indication of the location of the tree's drip line. He said it was likely that no matter which plan the applicants had used, the roots of Tree #1 would have been cut. He noted that Tree #3 was unhealthy and was already permitted to be removed. He observed that some of its roots tied into those of Tree #2 (see Exhibit 16). He also noted that four of its anchor roots had been cut; two of them appeared to be rotted; and another did not look healthy. He advised that the rot predated the applicants' purchase of the property. He also observed that any foundation work would have also damage the tree's roots. He said he was in favor of granting the applicants' request to remove Tree #2, because it was a hazard. Mr. Kiersey, Ms. Ostly and Mr. Miller agreed the tree was a hazard. Ms. Morales observed that fungus was detrimental to a tree's structural integrity. She concurred the tree was a hazard. She acknowledged that the Tree Ordinance was intended to prevent City of Lake Oswego Development Review Commission Page 13 of 14 Minutes of July 17, 2000 clear cutting, but she wondered if it should be applied to trees that were marginal and on forested private property where many other trees would be retained. Mr. Powers moved for approval of LU 00-0053, subject to the conditions in the staff report. Mr. Kiersey seconded the motion and it passed with Ms. Morales, Mr. Kiersey, Ms. Ostly, Mr. Miller and Mr. Powers voting yes. Ms. Binkley and Mr. Cushing were not present. There were no votes against. VI. GENERAL PLANNING Block 138 Mr. Pishvaie confirmed that the Commission was to be provided with a model of the project to be constructed on Block 138. VII. ADJOURNMENT There being no further business before the Development Review Commission, Chair Morales adjourned the meeting at 9:50 PM. Respectfully submitted. Janice Bader Senior Secretary 1:Adre\minutes\07-17-OO.doc City of Lake Oswego Development Review Commission Page 14 of 14 Minutes of July 17, 2000