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Approved Minutes - 2002-02-04I. CALL TO ORDER City of Lake Oswego Development Review Commission Minutes February 4, 2002 Chair Sheila Ostly called the February 4, 2002 meeting of the Development Review Commission to order at 7:00 PM in the Council Chambers of City Hall at 380 A Avenue, Lake Oswego, Oregon. II. ROLL CALL Commissioners present besides Chair Ostly were Vice Chair Nan Binkley, Julie Morales, Dave Powers Krytsyna Stadnik and Gary Fagelman. Bill Tierney was excused. Staff present were Hamid Pishvaie, Development Review Manager; Paul Espe, Associate Planner; Evan Boone, Deputy City Attorney; and Jean Hall, Secretary. 111. MINUTES Ms. Binkley moved for approval of the Minutes of November 29, 2001. Mr. Powers seconded the motion and it passed with Ms. Binkley and Mr. Powers voting yes. Ms. Morales, Ms. Ostly, Ms. Stadnik and Mr. Fagelman abstained from the vote. Mr. Tierney was not present for the vote. Ms. Ostly moved for approval of the Minutes of December 3, 2001. Mr. Powers seconded the motion and it passed with Ms. Ostly and Mr. Powers voting yes. Ms. Binkley, Ms. Morales, Ms. Stadnik and Mr. Fagelman abstained from the vote. Mr. Tierney was not present for the vote. IV. APPROVAL OF FINDINGS, CONCLUSIONS AND ORDER None. V. PUBLIC HEARING AP 01-06[LU 01-00261, an appeal of the Planning Director's decision to approve a minor modification to an earlier planned development (Skyland Heights PD 1-96) in order to remove Lot 10 from the project. City of Lake Oswego Development Review Commission Page 1 of 10 Minutes of February 4, 2002 The site is located at 1186 Crestline Court, Tax Map 21E 15DA, Tax Lot 3200. The staff coordinator is Paul Espe, Associate Planner. The hearing was continued from the January 23, 2002, meeting. No additional oral testimony was to be allowed. Ms. Ostly opened the public hearing and explained the procedures and time limits to be followed. She asked the Commissioners to report any ex parte contacts, biases or conflicts of interest. Ms. Morales reported she had left the previous hearing earlier than its end. Ms. Stadnik reported she had visited the site. Ms. Binkley reported that an audience member whose name she did not know had approached the commissioners' table after the previous hearing to begin a discussion and that nothing that would bear on the Commission decision had actually been discussed. Mr. Boone advised the Commissioners to invite the applicant or any interested person who desired to do so to inquire about the nature of the discussion. No one responded or challenged any Commissioner's right to hear the application. The applicants waived their right to an additional seven-day period in which to submit a final written argument. Paul Espe, Associate Planner, reported that during the time period allowed for submission of additional testimony, the staff had received a memorandum from Harold Morley (Exhibit G103); a copy of a section of the CC&Rs of the Skylands of Oswego No. 3 from Scott Borg (Exhibit G104); and a letter in opposition to the application from Dale Dyke Vandenburg Jr. (Exhibit G105). He reported that the applicants had responded to the new testimony with a letter from Aaron K. Stuckey of Hagen, Dye, Hirschy & DiLorenzo, PC, dated February 2, 2002 (Exhibit F-14). He noted that although the applicants' response indicated that Mr. Vandenburg had not testified during the previous hearing, the staff had confirmed that Mr. Vandenburg had testified at that hearing. Deliberations The staff clarified for the Mr. Fagelman that contiguous lots that were not within a Planned Development were allowed to be combined into one consolidated lot and that action would not require a review by the Commission, but might require a procedure to extinguish any easements on the property. Mr. Fagelman observed the owner could build a large house on the consolidated site. Mr. Powers acknowledged that the Commissioners were not reviewing any proposed structure, but he understood that the location of a large house on the combined lot was important to the residents of homes adjacent to and above the site. Ms. Binkley recalled the Commission had considered and approved the PD with specific setbacks for the subject lot and she said that to change them now would change the PD, because it would result in a larger building envelope on that lot. She suggested the Commissioners establish a building envelope size based on minimum setbacks (similar to the PD's setbacks) that would allow the envelope to be moved. She calculated that if the envelope was limited to a maximum size of 6,500 square feet and City of Lake Oswego Development Review Commission Page 2 of 10 Minutes of February 4, 2002 the applicants were allowed to build up to 30% lot coverage, the house footprint would cover approximately 12.5% of the parcel. She said that restriction would reflect the purpose of the setbacks that had been imposed on the original PD if the lot was removed from the PD. Mr. Fagelman observed that since the front lot of the combined lots was supposed to be "unbuildable" and had not been built on, the actual setback from the street was greater than required and a very large house on the combined lot would be 30 feet closer to the street than if the two lots were never combined. Ms. Binkley agreed and added that to restrict a structure to the rear 25% of the 52,000 square foot parcel would make the parcel seem lopsided. Mr. Fagelman recalled that the Commissioners had been advised that the applicants had a right to remove the lot boundary line. Ms. Binkley anticipated that if the building envelope were allowed to move closer to the center of the site there would be greater surrounding buffer area for the structure that would help to reduce its mass. She asked how the Commissioners could construct a condition that allowed the house to be pulled further toward the middle of the consolidated parcel and did not harm the PD. Ms. Ostly indicated her concern that to allow the structure to be moved would change the carefully thought out setbacks that had been imposed on the PD and affect the rest of its lots. Mr. Fagelman observed the applicants could still build a 12,000 square foot house within those setbacks, but the Commission's decision in the current application would show where it could be located on the lot. Ms. Binkley noted that after the lot was removed from the PD, it would be subject to a different lot coverage requirement of the R-15 Zone. She suggested that the language in recommended Condition A(2)(b)(iii), lot coverage for the consolidated lot be modified from "25 percent" (approx. 5,500 sq. ft.) to "6,500 square feet," or some number of square feet that would make sense. She suggested that the limitation under "Required Setbacks Without Consolidating Lot 10 with Tax Lot 1800" would allow an additional 1,000 square feet. Mr. Fagelman recalled the neighborhood had requested that the Commission not allow a house to be located beyond the existing Lot 10 setback and he suggested the Commissioners designate a general area where it would be allowed. Ms. Binkley held that if the applicants decided to build the house where the existing footprint was allowed on Lot 10, the site should resemble the one approved with the PD. She clarified for Ms. Stadnik that the existing lot coverage requirement would limit the footprint to 6,500 square feet. She confirmed for Ms. Ostly that her proposed limitations would result in what people had reasonably expected would result from the original PD approval and could result in a larger setback (80 feet instead of 50 feet) from the adjacent Skyland Heights neighbor. Ms. Morales cautioned Ms. Binkley that she was assuming that Lot 68 could not be built on. Ms. Binkley observed that if that lot was buildable and the typical setback along Skyland Circle was 25 feet the lot owner might build on a 6,500 square foot footprint that close to Skyland Circle. She explained that the modified conditions she had suggested met the intention of the original conditions imposed on the Skyland Heights PD. Ms. Morales acknowledged that the modified conditions could maintain the site's relationship with that PD, but she noted City of Lake Oswego Development Review Commission Page 3 of 10 Minutes of February 4, 2002 that the other neighborhood association was concerned about the potential 30 -foot reduction in setback if the footprint was moved closer to the edge of the hillside. Mr. Fagelman observed that the applicants would be able to build a large house on the parcel no matter what the Commission decided. Ms. Binkley observed that it would be possible for the applicants to design many different structure shapes within the footprint. Ms. Binkley moved to approve LU 01-0026, subject to the conditions of approval recommended by the staff, with the following modifications: Under Condition A(2)(b): • Required Setbacks Consolidating Lot 10 with Tax Lot 1800, (iii) Lot Coverage: Replace 1125 percent" with "The maximum building envelope is to be 6,500 square feet in area." Required Setbacks Without Consolidating Lot 10 with Tax Lot 1800: add the language "Maximum building envelope of 6,500 square feet". Discussion followed. Ms. Morales observed the proposed conditions would result in similar dimensions as were originally intended on the subject lot. Mr. Fagelman observed the applicants could still build a 13,000 square foot house on the site. Ms. Binkley clarified for the staff that the building would be allowed to move on the lot, but the front yard setback would remain the same. The Commission invited the applicants' representative to comment on the constitutionality of the changes the Commissioners had discussed. Bruce Goldson, Compass Engineering, 6564 SE Lake Road, Milwaukee, Oregon, 97222, indicated that the applicants questioned the constitutionality of the limitations the Commissioners were considering. He said those conditions would significantly reduce the applicants' development from the 25% lot coverage the Code allowed. He pointed out the parcel was over an acre in size, and the Code provided for specific setbacks. He worried that if the applicants desired a house shape that was slightly larger than the suggested limitation they would have to apply for another review, which he said was a constitutional problem. Ms. Binkley explained that the proposed change in the staff -recommended conditions for allowing removal of the PD overlay from Lot 10 would increase the maximum lot coverage on Lot 10 by 30%. Mr. Goldson disagreed with that calculation on the basis that the parcel was a combination of lots. Mr. Boone confirmed for Ms. Ostly that the Commission also had the option to not release the lot from the PD. He advised the Commissioners to consider whether approval of the application would significantly affect other property or uses. Mr. Pishvaie calculated that the building envelope of approximately 6,517 square feet that was shown on Lot 10 in the original application was about 1,000 square feet too large to meet the 25% lot coverage limitation on that lot. Ms. Morales observed that the proposed modification to the recommended conditions of approval would increase the allowable lot coverage to 30%. City of Lake Oswego Development Review Commission Page 4 of 10 Minutes of February 4, 2002 Ms. Morales seconded the motion and it passed with Ms. Binkley, Ms. Morales, Ms. Ostly, Mr. Powers, Ms. Stadnik and Mr. Fagelman voting yes. Mr. Tierney was not present. There were no votes against. Ms. Ostly announced that the final vote on the findings, conclusion and order would be held on February 20, 2002. AP 01-07[LU 01-00601, an appeal by Ramsey Signs, Inc. of the Planning Director's decision to deny a request for two variances to the Sign Code including a variance to retain the existing pole sign, and a second variance to increase the sign size from the maximum of 32-sqaure feet to 42.5 -square feet. Location of Property: 15835 Boones Ferry Road (GK Travel), Tax Lot 100 of Tax Map 2 1 E 8CB. Staff coordinator is Sandy Ingalls, Code Enforcement Specialist. Chair Ostly opened the public hearing and explained the procedures and time limits to be followed. She asked the commissioners to report any ex parte conflicts, biases or conflicts of interest. Ms. Morales, Ms. Brinkley and Ms. Ostly reported they drove by the site on a daily basis. Mr. Powers and Ms. Stadnik also reported they had driven by the site many times. No one challenged any commissioner's right to hear the application. Sandy Ingalls, Associate Planner, presented the staff report, dated December 17, 2001; and staff memorandum, dated January 11, 2002. She clarified that the appellants' request for a hearing was to be labled as Exhibit A and the staff memorandum was to be labeled as Exhibit D. She reported that G K Travel was a new business that was requesting to retain a 42.5 square foot pole sign, which was 10 feet larger than the 32 square foot sign allowed in the GC Zone. She related that the pole sign had been used for many years and the sign text had been changed for G K Travel when that business owner purchased the building in 2001. She said research showed that none of the prior owners had applied for sign permits. She said the City had notified G K Travel in an April 27, 2001, letter that they were a new business on the site, and that the sign had to comply with the Sign Code. She recalled that the applicant had submitted an application for the pole sign on May 29, 2001, and discussed signage options with the staff. She said the staff denied the application on August 30, 2001, on the basis that it did not demonstrate compliance with applicable criteria. Ms. Ingalls explained that the Sign Code specifically provided that a nonconforming sign could be maintained unless there was a new business or use at the site. She said the signage at the site was to comply with the Code because G K Travel was a new business. She said the GC Zone allowed a sign up to 32 square feet in size along any frontage of a site. She related that staff had suggested the applicant use a monument sign that was permitted by the Code. She said monument signs were the only type of freestanding sign permitted by the Code, unless the business could prove there would be a problem with vision clearance for a monument sign. She reported that the City's Engineering staff had found no problem with vision clearance at the site. She then explained that the criteria for a sign variance required an applicant do demonstrate that alternatives, such as a wall or awning sign, would not work at the site. She noted that City of Lake Oswego Development Review Commission Page 5 of 10 Minutes of February 4, 2002 other businesses in the area used monument signs. She pointed out the staff report included photographs of other randomly chosen signs in the area. She pointed out signs shown in the photographs often had vegetation, utility poles, trees or other structures in front of them. She reported that the businesses in the photographs had either come into compliance at startup or sometime within the past two years. She advised that the Code also provided that all nonconforming signs were to be brought into compliance with the Code by May, 2004. She related that the nearby McDonald's business had voluntarily begun compliance discussions with the City. She pointed out the staff had created Exhibit E-6 to show how the parking at the site could be reconfigured to add more parking spaces in the rear and on the side of the building, and prevent a monument sign from being obscured by parked vehicles. She clarified for the Commissioners such a sign could be up to eight feet high, and the outlined sign in Exhibit E-5 was approximately six feet high. She recalled the staff -suggested location for the sign had been determined after they had considered the most logical and typical location of a sign, where it would receive optimum exposure, and what location would best facilitate a utility connection. Ms. Ingalls explained the applicant had requested two variances: a variance to retain the nonconforming pole sign, and a second variance to increase the maximum allowed size of the sign in the event the first variance was granted. She related that the staff believed that if a variance was granted to allow the applicant's pole sign, that approval would encourage other businesses to ask for similar variances. AApplicant Darryl Paulsen, Ramsay Signs, 11275 SE 121St Ct., Clackamas, Oregon, 97015, testified that his company owned the subject sign and leased it to G K Travel. He said the record should indicate that ownership of the sign had not changed, the type of business and the use at the site had not changed, and only the name on the sign had changed. He opined that if business owner, Bud Gillison, had elected to keep the name "Journey Travel" on the sign the issue would never have arisen. He asked what had triggered the City's citation. Evan Boone, Deputy City Attorney, advised the Commissioners to determine whether the request for variances from the Sign Code should be granted without making a determination as to whether the existing sign was legal. Dr. Robert J. Claus, 22211 SW Pacific Highway, Sherwood, Oregon, 97140, held the issue was a constitutional one and the City was attempting to enforce a Sign Code that the applicant believed was neither time, place or manner, nor content neutral by the City's own definition. He said the issue was whether the City had the authority to deny the applicant's request for a variance. Ms. Ostly explained that the Commissioners were to make a determination about the sign, even if litigation followed that decision. Ms. Binkley asked how long an owner was given to change a sign. The staff advised that a nonconforming sign was to be City of Lake Oswego Development Review Commission Page 6 of 10 Minutes of February 4, 2002 brought into compliance with the Sign Code at the time the business ownership changed, and did not hinge on what the sign said. Dr. Claus predicted that if the variances were not granted, the applicant would proceed to litigate the matter. He held the applicant had only changed the copy on the sign and the City could not regulate sign content. He said that if the Sign Code was not time, place and manner content neutral, the City must carry a substantial proof that there is some benefit and they must go no further than necessary. He said if the City allowed changes in reader boards or electronic message boards it was allowing change of copy and it could not establish a benefit. He said the issue was one of censorship. Ms. Ostly explained the Commission was not authorized to decide that issue. Mr. Paulson contended that the City citation had been triggered by a change in the copy on the sign, which he explained was a maintenance action that did not require a permit. Mr. Boone advised that the legality of the sign was not an issue for Commission determination. Mr. Paulson pointed out that Exhibit E-5 showed the outline of where a six -foot -tall monument sign was suggested and he pointed out a vehicle could obscure the sign and that an unreadable sign would not serve the business. He said there was no good reason to not allow the existing sign to remain as it was until 2004. He said that to require the business to change it now would create additional expense for his client, who would have to reconfigure the parking. He observed that the signs in the staff -provided photographs of other businesses could not be easily read from the street. He said the use at the site had been the same for 15 years. He stated that the Code allowed a freestanding sign when there was no other reasonable place to locate it, as was the case at the site. Dr. Claus addressed the staff findings. He said that in sign cases the burden of proof was not on the applicant. He recalled cases in other jurisdictions where courts had found that in order to avoid a First Amendment infringement, any City enforcement action should result in a significant benefit and go no further than was necessary. He said the sign standards in the Manual for Uniform Traffic Control (MUTC), which was the used by the State of Oregon and transportation engineers, were fair standards that should be used by the City. He said the MUTC's minimum standard was seven feet to base and 18 feet to the top. He observed the applicant's sign was not inconsistent with the neighborhood and there had been no complaints. He entered two casebooks into the record (Exhibits E-7 and E-8). He said there was nothing that allowed the City to limit an accessory use below the federal standard of care and the minimum standard of reasonable, not arbitrary and noncapricious. He said the proposed sign fell outside of that standard. He pointed out that the nearby Chevron and Texaco signs did not fit the City's definition of a sign, which provided that graphics were not considered a sign (listing of nearby monument signs on page 6 of the staff report). He said the City's definition was not content neutral because it specified that graphics were not considered a sign. He said it was wrong to suggest that the applicant's "signature business" sign of 40 square feet was excessive. He said that loss of the sign could result in loss of business and closure of the business. He said that case studies showed that travel agencies that lost their signs had been the result of a "taking" of the business. He said City of Lake Oswego Development Review Commission Page 7 of 10 Minutes of February 4, 2002 the Sign Code was not content neutral, the City was not following its own standards regarding size of signs, the sign would not be visible to traffic at eight feet high. He said that "content neutrality" meant that the City should allow anyone to change the face of a nonconforming sign until 2004. He held that that the applicant's request was not an excessive or burdensome request. He opined that if McDonald's changed ownership, the City would have no way of knowing that as long as the corporate name remained the same. He said the current action was obviously discriminatory. He said the business owner was operating at the site at the time the Sign Code was changed; the staff's requirements were not made as a condition for obtaining a business license. He summarized that the business owner he had relied in good faith on the fact that the sign existed and he could stay in business. Mr. Paulson clarified for the Commissioners that his firm owned the sign and the site's business owner desired to be allowed to use the sign until 2004. He recalled the sign had been installed over 20 years ago, but he had recently found there was no City record to show that. He said that did not mean that a permit had never been issued. Mr. Claus, testified that the trigger for City action had been a change in the sign face, but there had been no change in the use of the site or of the type of business there. He added that the sign's size and geometry had not been changed — only its text. He opined there was a First Amendment issue to be addressed. He explained that existing case law showed the context of a sign was to be considered under less obtrusive methods. He said the City's regulation also discriminated against new businesses and favored existing ones. He said that the MUTC was the applicant's evidence of fair standards of sign traffic safety and the monument sign suggested by the staff would not comply with MUTC standards. He said staff's concern that the granting of the variance request for the subject business would encourage other businesses to do the same was not a valid reason for denying the variance, but was a valid reason for reviewing the fairness of the City Code. Dr. Claus advised that if the applicant had correctly identified the City's action as a First Amendment violation (as was determined in Blockbuster vs. the City of Tempe), the City would be held responsible for the costs of litigation and for the demise of the business. Mr. Boone clarified for Ms. Morales that any request for a change in the Sign Code was to be decided by the City Council. Mr. Pishvaie clarified for Ms. Morales that the Sign Code allowed a nonconforming sign to undergo a change of copy, but if the business changed, the sign was to conform to the Code. He said the application for a business license had indicated a change in the business. He further clarified that the City did not normally take action against nonconforming parking and landscaping until the site occupant applied for an addition or change of type of use. Mr. Boone advised that the Zoning Code allowed a nonconforming use to continue so long as the use continued, and ownership was not the triggering factor. If a change of use occurred (even if there was no change of business) the City would then consider square footage, parking and other requirements. City of Lake Oswego Development Review Commission Page 8 of 10 Minutes of February 4, 2002 Mr. Boone recalled for the Commissioners that the applicant had testified that a new ownership occurred with regard to the use - even if the business remained a travel agency — but the Sign Code did not mention "use", it only talked about a new business. Mr. Pishvaie advised that a nonconforming painted wall sign could not be changed unless it was brought into conformance with the Code. Mr. Paulson reported that the Cities of Portland and Salem had both abandoned requirements for copy change permits for signs, including wall signs, due to constitutional issues. Proponents None. Opponents None. Neither for nor Against None. The applicant requested that the record be left open for an additional seven days to allow them to submit a final written argument. Ms. Morales moved to continue AP 01-07[LU 01-00601 to February 11, 2002 for written testimony only. Written testimony was to be submitted by 5:00 PM February 11, 2002. Mr. Powers seconded the motion and it passed with Ms. Binkley, Ms. Morales, Ms. Ostly, Mr. Powers, Ms. Stadnik and Mr. Fagelman voting yes. Mr. Tierney was not present. There were no votes against. VI. GENERAL PLANNING & OTHER BUSINESS Restaurant in Block 136 Development The staff clarified that the development had been approved as a mixed-use office/retail project that could feature a minor amount of restaurant use as long as there was adequate parking for the uses. Mr. Pishvaie agreed to find out if the site owner intended to use part of the space for a restaurant. Timing of Applicant Comments About Suggested Conditions of Approval Mr. Pishvaie advised that although staff typically suggested conditions for the Commissioners to use in approvals of applications, the Commissioners could modify or delete them based on testimony. He said that when that happened it was fair to an applicant to afford him an opportunity to discuss the acceptability and constitutionality of the conditions. He noted that by the time the Commission considered an application, City of Lake Oswego Development Review Commission Page 9 of 10 Minutes of February 4, 2002 the applicant had usually been discussing conditions with the staff for several months and would not be surprised by the recommendation of the staff at the hearing. Ms. Ostly asked if the Commissioners should be working out compromises at a hearing. Ms. Binkley and Ms. Morales recalled the Commission often considered how to bring about a compromise through deleting or adding changes to the recommended conditions. Mr. Boone advised that the applicant could chose how to use his allotted time for testimony — whether the testimony was relevant to the decision or not. He said the best time for an applicant to raise an issue related to conditions of approval was when the staff report was issued and the deliberation phase of the hearing was not an opportune time to raise an issue; however, the applicant was given an opportunity to comment on the constitutionality of modifications to conditions of approval during that phase to ensure fairness and due process. Joint DRC/ Planning Commission Meeting The staff announced that a joint meeting of the DRC and the Planning Commission to discuss the work of the Infill Development Ad Hoc Task Force had been scheduled. VII. ADJOURNMENT There being no further business, Ms. Ostly adjourned the meeting at 8:45 PM. Respectfully submitted, Jean Hall Secretary L:\pc\drc\Tninutes\02-04-02.doc City of Lake Oswego Development Review Commission Page 10 of 10 Minutes of February 4, 2002