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Approved Minutes - 2016-01-20 APPROVED: 02/17/2016 City of Lake Oswego Development Review Commission Minutes of January 20, 2016 Page 1 of 6 CITY OF LAKE OSWEGO Development Review Commission Minutes Wednesday, January 20, 2016 The Commissioners convened at 7:04 p.m. in the Council Chambers of City Hall, 380 A Avenue. Ms. Melendez was elected Acting Chair in the absence of the Chair and Vice Chair. Members present: Kelly Melendez, Paden Prichard, Kirk Smith and David Rabbino. Chair Brent Ahrend, Vice Chair David Poulson and Jeff Shearer were excused. Staff present: Jessica Numanoglu, Planning Manager; Evan Fransted, Associate Planner; Evan Boone, Deputy City Attorney; and Jean Hall, Administrative Support. Also present was City consulting arborist Morgan Holen, Morgan Holen & Associates, LLC. MINUTES None. FINDINGS LU 15-0058: A request by Medallion, LLC for approval of a Development Review Permit to construct a new 3,776 sq. ft. commercial building, a Major Variance to LOC 50.06.001.5.g that requires new structures to be located within 30 feet of a public street, and the removal of five trees to accommodate the development. Location of Property: 2 Monroe Parkway (Tax Lot 400 of Tax Map 21E05 AA). The staff coordinator is Debra Andreades. The commissioners wanted to know if the applicant had applied for an encroachment permit that would allow the propane tank to be located where the Commission preferred to it be located, which was in an easement on the southern portion of the site. There was concern that if the permit was not granted and the tank had to be located in the landscaped corner near the intersection it might not be screened well enough. Chris Davies, representing the applicant, clarified that the applicant preferred to have the tank in the southern location and upon final approval of the application they were going to apply for the encroachment permit. He anticipated if the tank had to be in the corner location the brick wall and landscaping there would provide screening. Mr. Rabbino moved to approve LU 15-0058-1884 Findings, Conclusions and Order. Mr. Smith seconded the motion and it passed 4:0. PUBLIC HEARINGS TR 499-15-05916 [AP 15-08]: An appeal by Thomas and Kathleen Rastetter of a tentative decision by Planning & Building Services Department on a Type II tree removal application to remove a 36- inch Douglas fir tree. This hearing was postponed from the January 4, 2015 public hearing. Location of Property: 17360 Grand View Court (Tax Lot 505 of Tax Map 21E 04BC). The staff coordinator is Evan Fransted. Acting Chair Melendez opened the hearing. Mr. Boone outlined the applicable criteria and procedure. At time of declarations Mr. Prichard and Ms. Melendez each reported making a site visit. No one challenged any Commissioner’s right to consider the application. APPROVED: 02/17/2016 City of Lake Oswego Development Review Commission Minutes of January 20, 2016 Page 2 of 6 Staff Report Mr. Fransted presented the December 24, 2015 Planning Division Staff Report. He and Ms. Holen compared the application with the applicable criteria for approval of Type II tree removal. Staff discussed that the request met Criteria 3, 4 and 5, highlighting the following aspects: 3. Removal of the trees will not have a significant negative impacts on the character, aesthetics, or property values of the neighborhood. There were other large trees nearby and in the surrounding neighborhood. The City had received two public comments in favor of removal. (Exhibits G-100 and G-101). 4. Removal of the tree is not for the sole purpose of providing or enhancing views. The branches of the subject tree were already above the view line. 5. Mitigation was required for removal. The applicant had submitted a Mitigation Plan (Exhibit F- 5). Staff recommended looking for a mitigation tree that was more comparable in stature to the removed tree than Milky Way Dogwood. They recommended a condition to leave the stump of the removed tree in the ground to avoid impacts to roots of other trees and soil stability. Ms. Holen discussed why the request did not meet Criteria 1 and 2, highlighting the following: 1. The trees are proposed for removal for landscaping purposes or in order to construct development approved or allowed pursuant to the Lake Oswego Code or other applicable development regulations. The applicant indicated the reason for removal was for landscaping purposes because the tree dropped a significant amount of needles, branches and sap on their deck and roof despite having had branches trimmed. They also contended that the tree was a nuisance and insignificant benefit to the neighborhood and an egregious burden they should not have to bear for the community. Staff found the evidence did not support that removal was necessary for landscaping purposes. Tree needles and sap were considered natural characteristics of trees to be dealt with. A healthy Douglas fir tree that had been properly maintained had a low risk of branch failure. In practice the City agreed that a tree that would inevitably cause damage to a structural foundation by root growth could be removed for landscaping purposes. This application did not state any concern that the tree would cause damage to the dwelling foundation. It talked about potential damage to the roof and deck from debris. The application did not establish that the subject Douglas fir’s characteristics included any abnormal shedding. The tree appeared to be healthy, although excessively pruned. Pruning could lead to sap dripping from the bark. Trees with higher canopies that had been pruned beyond what would be considered a balanced height (two-thirds canopy to one-third trunk) experienced more trunk and root stress. The branches in this grove of trees had been lifted to approximately less than half of their total height. The application did not provide any details regarding new landscaping on the site based on the tree removal. 2. Removal of the tree will not have a significant negative impact on erosion, soil stability, flow of surface waters, protection of adjacent trees, or existing windbreaks. This criterion was not met because removal of the dominant subject tree would result in probable failure of adjacent trees that would no longer be protected by the dominant tree. Exposure due to opening up the stand by removing the dominant tree put two intermediate trees at greater risk. They had 27% and 30% height: live crown ratios. Less than 30% was generally an indicator that trees were at greater risk of wind throw. Based on the diameter measurements shown on the site plan and some sample measurements she made using a laser range finder Ms. Holen had determined the intermediate trees had height: diameter ratios that indicated they were currently at moderate risk. That risk would be increased by exposure after removing the dominant tree. APPROVED: 02/17/2016 City of Lake Oswego Development Review Commission Minutes of January 20, 2016 Page 3 of 6 Questions of staff Staff was asked how they could conclude that that removal was not for landscaping purposes when the code did not define ‘landscaping purposes’. They were asked if the application met the criteria now that the applicant had submitted an arborist’s report (Exhibit F-4). Staff interpreted ‘landscaping purposes’ to mean removing a tree because someone was altering the landscaping on the site, such as regrading or installing a new planting scheme. They had generally not accepted that landscaping was just removing and replacing a tree. Although the applicant had submitted an arborist’s report the staff decision would be the same based on probable failure of surrounding trees. Ms. Holen discussed that the accepted industry threshold to stability was 30% or higher live crown to height ratio. She estimated the ratio was 30% or less for two intermediate trees. It was also problematic that the distribution was confined to the upper limits. More than half of each tree had been pruned when best practice was to leave a crown of two-thirds or better. In regard to the potential for a tree to grow new limbs she advised they sprouted when exposed to sunlight but it took decades to grow into normal branches. She had not seen evidence of such sprouting, but the sprouts might have been removed. Applicant Thomas Rastetter, 17360 Grandview Ct., testified along with the applicants’ arborist, Terry Flanagan, Teragan & Associates, Inc. 3145 Westview Circle, Lake Oswego (97034). Mr. Rastetter, recalled that Ms. Holen had based live crown ratio on the diameter measurements on his plan. He clarified that he had measured the diameter of the subject tree but had estimated the diameters of the other trees. He indicated that most of the pruning of trees had been done before the applicants purchased their house in 2006 and the applicants had done some pruning of the subject tree and one other tree a couple of years ago in order to minimize the amount of debris that fell from them. He suggested if the Commission was concerned about other trees failing they could impose a condition of approval that if a tree failed the applicant was to plant more mitigation trees at that time. He related that a tree in the southeast portion of the stand had significant sprouting. Mr. Rastetter held that the applicants’ unsuccessful 2012 application to remove two trees should not be part of the record in this case. He discussed that they wanted to remove the subject tree because of the significant amount of branches, needles and sap falling on their roof and deck and to address a landscaping issue. There was a danger of falling branches (branches often fell and a large branch had once almost hit a neighbor). He offered examples of the volume of tree debris that affected their roof drainage and could cause damage to the structure even though they had gutter guards and blew the roof off every couple of months. It was risky work and they could not practically blow the roof off as often as they needed to in winter. He submitted and discussed photographs. They showed the proximity of the subject tree to the deck (about six feet) and that its branches extended over the house; the amount of debris that had accumulated in the roof valleys and gutters and on the deck during certain time intervals; and the amount of sap that had accumulated in a couple of years after refinishing the deck. He discussed the landscaping issue that they had to remove their shoes before entering the house from the deck so they did not track sap inside. The applicant anticipated that no one else would notice the subject tree had been removed because it was one of ten trees in a grove behind his house. Mr. Rastetter discussed that the way staff interpreted the code that authorized Type II removal for landscaping and development purposes (Criterion 1) was not warranted. Since the code did not define ‘landscaping purposes’ the rules of statutory construction would have them look at the plain ordinary meaning. That could be found in Webster’s Dictionary: ‘to modify or ornament a natural landscape by altering the plant cover.’ He said he wanted to do that by removing the subject tree and planting a dogwood instead. He held that the rules of statutory construction did not allow staff to insert the word ‘necessary’ when they reported that the application did not meet the criterion that ‘removal had to be necessary for landscaping purposes.’ By adding ‘necessary’ they were adding APPROVED: 02/17/2016 City of Lake Oswego Development Review Commission Minutes of January 20, 2016 Page 4 of 6 an additional criterion to the code. He held Criterion 1 was met because the applicant was removing a tree for landscaping purposes. The applicant held that it was not fair or just when staff interpreted the code in a limited way and found the landscaping purposes criterion was met and an owner could get a permit if the tree would inevitably cause damage to a structural foundation by root growth, but deny a permit if the tree was likely to cause inevitable damage from falling branches and by compromising the drainage system on the roof without an egregious and expensive amount of maintenance. He held the “inevitable damage” principle should apply regardless of the nature of the inevitable damage. Mr. Rastetter discussed that his arborist reported that Criterion 2 was met. The ten trees in the grove were healthy with no detectable defects and all of the trees met the live crown ratio for their continued well-being. The subject tree was one of 10 trees in the grove and its removal would not significantly impact the remaining trees. Those trees had many years after pruning to establish root growth to stabilize themselves against prevailing winds. They were on the leeward side of the hill and protected from strong winds by the mass of the house. They were about 300’ in elevation below the Skylands Neighborhood so the strong winds that tended to compromise trees flowed well above them and should not have an appreciable impact on the remaining trees if one tree was removed. The applicant held the application met the criteria and asked for approval. Mr. Flanagan highlighted aspects of his arborist’s report (Exhibit F-4). The trees had high crown ratios. In the many years since the majority of them had been lifted there had been time for some stabilization of the structural stability of the trees through additional root growth. In regard to wind throw potential he advised that the subject tree was one of ten trees. Its removal would open up one point along an edge. There would be some additional force from winds that might impact trees, but his report listed the reasons why he felt that it was not significant. Questions of applicant The applicant clarified that they had decided to limit their current application and not press for removal of a 24” Douglas fir that was just as close to the deck as the subject tree. The subject tree was over the main part of the deck they used and they could live with the other Douglas fir there. Mr. Flanagan confirmed that the subject tree had no health issues and no greater propensity for limb loss than any of the other Douglas fir trees. Public testimony None. Deliberations No one asked to keep the record open for additional written testimony and evidence. The applicant waived their right to keep the record open for submission of a final written argument. Acting Chair Melendez opened deliberations. The commissioners discussed Criterion 1, which allowed removal for landscaping purposes. Mr. Smith discussed that the applicant had met this criterion. The code did not define ‘landscaping purposes’ so things like removing blackberry bushes or a tree were ‘landscaping purposes.’ Mr. Rabbino discussed that staff had the discretion to interpret code in a manner that would be consistent for all applicants. He did not know if they inserted ‘necessary’ consistently. He recalled the subject tree was healthy and not abnormally prone to limb loss. He noted that many other property owners experienced the same issues that a limb could potentially fall off and the debris was a nuisance. Mr. Pritchard discussed that as a designer, ‘landscaping purposes’ meant improving landscaping by adding things like plants, walkways, stonework, etc. He was very reluctant to say removing a tree was landscaping. That was a dangerous precedent to set. He recalled the main reason for removal of the subject tree was not to improve the landscape but to remove the potential for damage and falling debris. His own experience was that his Douglas fir APPROVED: 02/17/2016 City of Lake Oswego Development Review Commission Minutes of January 20, 2016 Page 5 of 6 tree was messy and he cleaned up after it. His removing his own tree would not enhance his landscaping. Ms. Melendez discussed that in the context of land use review of projects to improve the land she would not say removal of a tree was landscaping. That was a slippery slope as it could be used by anyone who wanted to remove a tree). Mr. Smith recalled the City allowed people to remove trees in order to expand their homes and decks. He would not force applicants to extend their decks in order to remove a tree that had the potential to cause damage. He noted the criterion did not specify “necessary for improvement of the property.” Ms. Melendez recalled the City had allowed trees to be removed in order to add a deck, expand a structure, or even to add a fish pond or rock garden. However she did not want to set the precedent of saying removal of a healthy tree was ‘landscaping purposes.’ Mr. Rabbino recalled the subject tree was a healthy tree. He contrasted removing a tree that endangered the foundation of a home with what owners did all the time, which was doing what was necessary to maintain and prune a tree to mitigate the risk of any damage to the upper part of their structure and to clean their roofs and gutters. He noted no evidence of water damage had been presented. He recalled staff historically interpreted landscaping as being more than just cutting a tree. He was troubled that staff had inserted ‘necessary’ into their interpretation. Staff confirmed they did not consider just removing a tree to be ‘landscaping.’ They looked for damage to a foundation or a plan that necessitated removal of the tree. If a tree was clearly diseased or malformed and was detracting from the landscape they considered its removal a landscaping purpose. They also allowed removal as a hazard permit if the applicant demonstrated a tree had problems/defects that qualified it as a hazard tree. However, they did not grant a permit to remove a tree that had the normal limb failure rate typical of its species. Ms. Melendez observed that limbs could be trimmed so they did not fall on rooftops and the entire tree did not need to be removed. When asked if the applicants could lift the branches even higher staff advised that if they removed more than 50% of the live crown it was considered removal of the tree. The commissioners discussed Criterion 2, noting that the arborists’ reports differed and the commissioners were not tree experts. Mr. Boone advised that the burden of proof was on the applicant. Mr. Smith recalled the report regarding crown ratio and suggested the applicant had met this criterion. Mr. Pritchard was inclined to say the staff interpretation was correct because staff tried to consistently apply the criteria in every case. Ms. Melendez indicated that the applicants’ arborist’s windbreak argument seemed to make sense. The report was that the subject tree was on an edge of the group. She had not asked if the other trees would grow stronger after its removal. However, she was still not satisfied the application met all of the other criteria. Mr. Rabbino discussed that no one had weighed in on whether drainage would be an issue if the tree was removed. He gathered that was why staff recommended leaving the stump in place. Mr. Prichard discussed that the subject tree was dominant and had the largest crown of the group of trees, which were all the same age. He was concerned that some of the other trees needed it for protection. His experience was that trees that had been shaded out or crowded by other trees never got better after the dominant trees were removed. Mr. Rabbino asked Ms. Holen if she agreed with Mr. Flanagan’s Findings 6 and 7. She indicated she agreed the trees were located on the leeward side of the house but she was not sure whether the house served as a deflector of wind because the trees were taller than the house and their live crowns were above the house. She agreed it was conceptually possible for the house to act as a wind deflector, reducing the wind force on the trees. Rebuttal None. APPROVED: 02/17/2016 City of Lake Oswego Development Review Commission Minutes of January 20, 2016 Page 6 of 6 Deliberations Acting Chair Melendez polled the commissioners regarding whether Criterion 1 and Criterion 2 were met. Mr. Smith indicated Criterion 1 was met and the other three commissioners indicated it was not met. Mr. Rabbino indicated he believed Criterion 2 was met based on the response from the City’s arborist. He indicated he believed all the criteria except Criterion 1 were met. Mr. Prichard indicated Criterion 2 was not met and the other three commissioners indicated they believed it was met. Mr. Rabbino moved to deny AP 15-08 (TR 499-15-00916) because the applicant had not met Criterion 1. Mr. Prichard seconded the motion and it passed 3:1. Mr. Smith voted no. The vote on the findings, conclusions and order was scheduled on February 1, 2016 at 7:00 p.m. GENERAL PLANNING AND OTHER BUSINESS None. ADJOURNMENT There being no other business Acting Chair Ms. Melendez adjourned the meeting at 8:47 p.m. Respectfully submitted, Jean Hall /s/ Jean Hall Administrative Support Link to the meeting video and documents: http://www.ci.oswego.or.us/boc_drc/development-review-commission-96