Loading...
Approved Minutes - 2019-10-07 PMCity of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 1 of 11 14 CITY OF LAKE OSWEGO Development Review Commission Minutes October 7, 2019 The Commissioners convened at 7:02 PM in the Council Chamber of City Hall, 380 A Avenue. Members present: Chair Jeff Shearer, Vice Chair David Poulson, Craig Berardi, Jason Frankel, Mark Silen, and Randy Arthur Members absent: Kirk Smith Staff present: Jessica Numanoglu, Planning Manager; Ellen Davis, Associate Planner; Evan Boone, Deputy City Attorney; and Kat Kluge, Administrative Support COUNCIL UPDATE Councilor John LaMotte updated the Development Review Commission (DRC) on the following recent City activities: City Hall completion projected for two years, with current building being torn down and turned into parking and an art-walk promenade along "A" Avenue; a "zone of benefit" for a sewer extension along Reao Court was created; annual Code clean-ups were presented by staff; an engineering contract was approved for the Pilkington/Jean Road intersection project; and City Council is discussing the North Anchor proposal process. Commissioner Arthur asked if the City intended to receive a market study regarding whether a hotel for North Anchor was sustainable given the recent approval allowing Short Term Rentals in the city. Councilor LaMotte replied that they were looking for market information to frame the discussion and were asking for developers to outline the hardships of getting that done; adding that he felt there was a demand, but that they needed the details to make it work. FINDINGS Commissioner Arthur moved to approve the Draft Findings, Conclusions, and Order for AP 19- 06 [TR 499-19-03281]. Seconded by Commissioner Berardi and passed 6:0. Evan Boone, Deputy City Attorney, informed Chair Shearer about two procedural matters: Commissioner Berardi voted "no" at the public hearing and Commissioner Frankel was absent for the public hearing. Commissioner Berardi rescinded his "Second" of the motion and stated that he was not changing his mind. Commissioner Frankel affirmed that he reviewed the record and agreed with the findings to deny. Seconded by Vice Chair Poulson and passed 5:1. PUBLIC HEARINGS AP 19-01 [TR 499-19-01631], Chair Shearer stated that the applicant withdrew their Type II application, so it would not be heard this evening. Ellen Davis, Associate Planner, informed the DRC that the applicant had submitted a Hazard tree removal application instead and that the City was reviewing it very closely; however, a permit had not been issued. Ms. Davis stated that all involved parties had been notified that the applicant withdrew the Type II application and City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 2 of 11 14 submitted a Hazard tree removal application, adding that there was no ability to appeal a Hazard tree application. AP 19-07 [TR 499-19-03965], a request for a Type II permit to remove six trees to construct a new single-family house. The site is located at 1507 Cedar Street (21E10CD02000). The Staff Coordinator is Ellen Davis, Associate Planner. Mr. Boone explained the process of the public hearing and inquired of DRC members regarding any ex-parte contacts, biases, or conflicts of interest, and their business and/or employment. All Commissioners stated they had no ex parte contact (other than those listed below), biases, nor financial conflicts of interest. Chair Shearer stated that he made no specific site visit, but had walked by the property many times. Vice Chair Poulson stated that he made a site visit that day and walked around the property. Commissioner Berardi stated that he was familiar with the site, but had not made a site visit. There were no challenges to the Commissioners' right to consider the application. Staff Report Ms. Davis presented the staff report; beginning by entering two new exhibits into the record: F- 003 and F-004. The site is located within the R-7.5 low-density residential zoning district. A demolition permit has been issued for the existing house, and the plans for the new house have been approved by all departments, excepting the pending tree removal and protection. Tree 10207 (located at the center of the back of the house) has been voluntarily withdrawn from the Type II application and will be protected under the Tree Protection Plan. The proposed tree removal is for development of a single-family residence. Over-dig of about a foot is typical in installation of a new foundation. Tree 10191 (a Douglas fir tree with a previously broken top wound) is located within the eaves of the proposed home and right at the wall of the new home, and is codominant with Tree 10190. Tree 10190 is located adjacent to a proposed stormwater chamber and is codominant with Tree 10191. This means that the two trees grew up together, and so, removal of one necessitates the removal of the other, being unsafe to leave just one of them. Tree 10168 is located within the eave-line and Tree 10147 is approximately four feet from the house foundation and two feet from the eaves. Both trees are too close to the house foundation to retain during construction. Tree 10139 (an Oregon white oak) is located approximately 5.5 feet from the foundation and 3.5 feet from the eaves. This tree has a very asymmetrical canopy (all branches going in one direction, with no branches on the other side). The second story of the new house is going to be where all of those branches are located. This will require more than 50% canopy loss and would damage the tree and be considered "removal," under the Tree Code. Tree 10097 is located within the driveway footprint. Staff reviewed all of the criteria and found that the proposal would not have significant negative impacts on: erosion; flow of surface waters; or protection of adjacent trees or existing windbreaks. Looking at the "significance" analysis (LOC 55.02.080) and Criterion #3, staff found that three of the trees proposed for removal may be considered "significant" trees. There is no evidence in the record to support Tree 10097 (a Colorado spruce) being significant to the neighborhood due to species, but staff erred on the side of caution and found it was a potentially "significant" tree (correction made that it is not a "street" tree). Tree 10190 and Tree 10168 could be potentially "significant" trees to the neighborhood skyline, as both are rather tall. In the R-7.5 zone, there is a 25-foot front yard setback and the house is 25 feet and two inches back from the front setback line, so there is no room to shift the house footprint forward toward City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 3 of 11 14 the street. There is a minimum 5-foot side yard setback with both side yards required to add up to 15 feet. The plans show 7.5 feet on the west side and 8.5 feet on the east side, so there is potential to shift to one side by up to 2.5 feet, but staff found that the small movement would not be sufficient to save a Douglas fir and an Oregon white oak (located right next to the house). There is a 30-foot rear yard setback, and the house is right up to that rear setback, so there is no ability to shift the house to the rear away from trees at the front. The area within the setbacks is referred to as the "available building envelope" and the building footprint must be located within that envelope and cannot be located in a required setback. The height of the proposed dwelling is 23-feet, which would allow a maximum lot coverage of 33% in the R-7.5 zone; however, the proposed lot coverage is only 28.7%, so is less than the maximum permitted in the zone. Staff finds that there is insufficient room to move the building footprint to save additional trees. There was a proposal to "flip" the house plan in some of the comments received, but doing that would mean that the driveway would take out a beautiful 33-inch Douglas fir and three Pacific madrone trees, as well as two additional big-leaf maples in the back. Staff did not find that this was a good alternative to save the 19-inch Colorado spruce, by taking out a 33-inch Douglas fir tree. Staff finds there are no reasonable alternatives to removing those three "significant" trees, which would still allow for development as permitted by the zone; and with that, staff finds that the exception to criterion #3 for these three trees is met. If the Commission found that these three trees were significant and approved the tree removal application, those trees must be mitigated at a 2:1 ratio, which would require a total of nine mitigation trees on the site, seven of which would need to be native species. Staff recommended approval of the Type II tree removal application with the following conditions: identify and plant nine mitigation trees (seven native species); and leave the stump for Tree 10139 in the ground or grind it six-inches below ground level (to prevent disturbance to the root area for Tree 10138). Questions of Staff Commissioner Arthur asked if Tree 10191 would need to be removed, if not for the codependency issue. Ms. Davis replied that she believed it would be, as it was 8.5-feet from the foundation; adding that arborists tend to say that for every inch of diameter, there should be about six inches of ground between the work performed and the tree, and that tree was large enough that it would be too close to the development at 8.5-feet to preserve it; and there is a proposed stormwater system near the tree, which, if moved elsewhere, would impact other Douglas fir trees on the site. Vice Chair Poulson inquired if the storm-tech chamber was drawn to scale. Ms. Davis stated she does not review the stormwater systems, but the rest of the plan was to scale, so she would believe it would be. Vice Chair Poulson asked for affirmation of approval on everything else in the proposed residential development. Ms. Davis affirmed. Vice Chair Poulson stated that he would assume it was drawn to scale if staff had gone to that detail and level of approval. Ms. Davis replied that it had been approved by the stormwater reviewer. Vice Chair Poulson opined that this puts DRC members in a tougher position when everyone had done all the work on it and the trees were a fundamental part of the project; adding if members said "no," then a lot of that work would have been wasted. Ms. Numanoglu replied that all criteria had to be met, and when staff said it had been "approved" it meant that it had been reviewed and signed off by other departments as having met code, pending the tree permit, not that the building permit had been issued. She added that if the tree permit was denied, the Applicant would have to start all over again; however, that was not really for the Commissions' concern. The Applicant has to meet all codes and criteria for the development, including the tree removal criteria. Vice Chair Poulson asked if it was drawn to scale, could the stormwater system be moved to the east a little bit, and City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 4 of 11 14 he asked whether someone analyzed the potential move of the storm-tech chamber. Ms. Davis responded that the Douglas fir was fairly sizable, with a pretty big drip-line, and moving a stormwater facility within the drip-line of a tree (one with a compromised root system per Exhibit F-004) was not advisable. Vice Chair Poulson pointed to there being alternative stormwater technologies that were not looked at. Ms. Numanoglu pointed out that while the storm-tech chamber is shown near the tree, the primary reason for removal of that tree was because it was co-dominant with the Douglas fir next to it, and if the one in the footprint were removed, you could not leave the other tree standing because it would leave it susceptible to wind-throw; that was the primary reason for its removal, not the storm-tech chamber. Chair Shearer asked if the photo shown was of those two trees. Ms. Davis replied that was the Colorado spruce (pointing out the photo of the co-dominant trees). Vice Chair Poulson asked for confirmation that an Applicant may propose any footprint for development, as long as it fit within the setbacks for that lot; opining that developers have no responsibility to consider tree locations as part of the footprint developed. Ms. Davis responded that was not entirely the case because the City does ask for alternative site plans and reasonable alternatives to removal when a tree is considered "significant." Vice Chair Poulson stated his concern over approving the development prior to this because if this Commission determined that a tree was "significant," then it would have been a motivation for Applicants to submit alternative site designs, adding that it seemed like a circular argument "given the footprint of the house, these trees have to go" (does it matter how they look at the trees, given that the footprint had been approved and the trees were in the way) versus "they think there was a potential for it being "significant;" therefore, we would like to go back and look at alternative footprints." Ms. Davis again stated that the building permit plans have not been "issued" and that "approved" meant that each department had reviewed the proposed plans and found they met the requirements for their department (building codes, fire codes, setbacks and lot coverage, height requirements, and stormwater requirements), so the Commission had the purview to review this application, and it would be possible for them to require the Applicant to redesign the house if a tree were found to be significant. Vice Chair Poulson inquired if it was possible to review this, irregardless to the conflicts of these trees, with the current proposed footprint (including the oak, the driveway, the two trees in the back, and all the others). Ms. Numanoglu responded that the requested development was allowed in that zone by code, adding that the tree code criteria require that DRC members look at reasonable alternatives that still allow the property to be used as permitted by the zone. She restated that "approval" meant that it met all of the criteria of the zone, being reviewed and signed off, adding that didn't mean that the Commissioners could not still look at alternatives. Staff noted earlier that it couldn't be moved within the setbacks and that the Applicant was below the maximum lot coverage allowed (these other findings were also in the staff report). Vice Chair Poulson opined that they should be considering the hierarchy of the decision. Commissioner Silen asked staff to show the diagram with the red "X's" and then asked what would have to happen to the footprint of the home, in order for the trees in the back and on the side to not be removed (for example, shrinking the square footage by 20%), continuing by asking if it was a moot argument, given the allowance for filling the envelope. Vice Chair Poulson argued that the square footage does not need to be reduced; rather, the geometry needed to be changed. Commissioner Frankel asked for members to make a decision based on what they have in front of them. Vice Chair Poulson asked for clarification on how members should look at this, from a hierarchy point-of-view; adding that what he heard was the building footprint was the reason why the alternatives were not going to work. He opined that he thought he established that could change and alternatives could be submitted and members should be focusing on the significance, the neighborhood character, and other things. Ms. Davis referred to Tree Code 55.02.080 and criteria #1 for the reason the trees were being removed (development, landscape City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 5 of 11 14 plan, causing damage to an existing structure) and then to the reasonable alternatives under criteria #3 (hoping this made it a little clearer). Chair Shearer asked for confirmation that what Ms. Davis was saying was that staff found they were not "significant" and so would look at what was in front of them. Ms. Davis replied that staff found that three of the trees were potentially "significant" and when they looked at reasonable alternatives for the envelope (the building being shifted), they found it could only be shifted 2.5-feet side-to-side and that wouldn't be enough to save the trees, so staff found there were no reasonable alternatives to build on this site as permitted by the zone. Chair Shearer then asked if they were to look at what was in front of them. Ms. Davis affirmed. Ms. Numanoglu added that the concept of "reasonable alternative" would be different for different people and that from her experience other past Commissions have not interpreted reducing the size of the house, as allowed by the zone, as a "reasonable alternative." Commissioner Silen asked about the height restriction allowed in the zone. Ms. Davis answered that it was 28 feet and the house was currently proposed at 23 feet. Applicant Testimony Kelly Geiger, with Renaissance Homes, 16671 Boones Ferry Drive, LO 97035, showed a 3-D slide of the proposed house and remaining trees. She stated that there were a total of 16 trees on the property, with three invasive-species trees being removed and six Type II trees being removed, and seven non-invasive trees and one street-tree being protected. Ms. Geiger informed DRC members that the primary reason for the tree removal was the building of a new single-family home and the installation of a stormwater chamber in the back. She noted that all building plans had been approved by all departments (all of the building, planning, and zoning requirements had been met), except for the trees; and that the project was ready to break ground, but the tree appeal had extended their start-date by over a month and interest was being paid at a rate of $3,300.00 per month, or $107.00 per day, so they were very anxious to get this project going. Ms. Geiger stated that Renaissance Homes is the legal owner of the property, with the right to build the plan the way it was designed, as it was already approved by staff, who supported approval of the tree removal on this property. Ms. Geiger pointed to a comment coming in after the comment period was closed, from a neighbor to the west, expressing the safety concerns of the trees presented to her and to the general public, as the neighbor had to replace portions of her home due to falling limbs from those very trees. She pointed to the trees' drip-lines on a slide illustration and to the excavation for the home and the stormwater chamber. Ms. Geiger outlined the reasons for requesting the removal for each tree (such as, roots being in the construction area and the "sister" trees having intertwined roots). She noted that the current house had a footprint of 1,668 square feet and the proposed house would be 2,149 square feet (a difference of only 481 square feet). Ms. Geiger opined that there would be no other building configuration that would allow the property owner to develop the property as permitted by the zone and to protect the trees, as they would die due to construction impacts. She then showed photos of comparable homes and different trees in the neighborhood. Ms. Geiger outlined her argument for exceptions to criteria #3 under the tree code; noting alternatives that were considered. She addressed some of the opposition comments: moving the stormwater chamber; trees not being in the construction footprint; trees being unique/rare; the house being "flipped"; and being a sound buffer to McVey Avenue. Ms. Geiger stated, on behalf of Renaissance Homes, that they would comply with mitigation planting instructions as required. Questions of Applicant Commissioner Arthur asked if the branch pictured on the roof was of that home (from the first slide shown). Ms. Geiger responded that was a "Google" image, to show the damage that could occur if the trees do not have protection around them, as it could be a significant hazard. City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 6 of 11 14 Commissioner Arthur noted that had peaked his curiosity, as he did not know if it was an actual photo of something that had happened on the property; adding that he appreciated Ms. Geiger's clarification. Public Testimony Opponents Nancy Osborne, 1217 Laurel Street, LO 97034, stated this was her neighborhood, where all the streets were named after trees and where she walked her dog, shopped for groceries, exercised, and enjoyed the surrounding trees and vegetation. She opined that the neighborhood would be impacted by the removal of the six large, old, established trees that buffered wind and noise, offered shade on hot days, and helped calm the hectic days. Ms. Osborne stated that the City needed to be cautious in allowing the killing of these amazingly beautiful living trees that added so much to their neighborhoods, as once killed, they would not return in their lifetimes. She pointed to the 2016 adoption of "Healthy Ecosystems" in a Comprehensive Natural Resources Plan, opining that this was founded as a guide to City staff. Ms. Osborne requested the removal of the trees be denied because killing those trees would have a negative impact on: the character and aesthetics of her neighborhood; the continuity of her neighborhood skyline (being harmed); and the surface water flow, wind-blow and noise pollution (with the missing root system and canopy affecting this). She stated that, after listening to the Applicant's presentation and DRC members questions, she understood the solution to the dilemma as making the house smaller, even though that would cause Renaissance Homes not to make as much money off of the sale of the house. She opined that a 1,600 square-foot house is nicely inhabitable. She pointed to Tree 10168 as being the one most especially important to save, as it is near Tree 10147, acknowledging that the "sister" trees might not be able to be saved due to the header damage caused by a storm. Ms. Osborne noted that over 30 of her neighbors signed the petition to save the trees and asked for the Commission's help in doing so. Betsy Wosco, 320 Durham Street, LO 97034, stated that she was speaking on behalf of the Old Town Neighborhood Association (OTNA). Ms. Wosco opined that the big, old trees were their first stormwater system, as they absorb rainwater, and that the skyline would be impacted per Tree Code 55, adding that the trees also offered a reduction to heating and cooling costs, and increased property values. She stated that reasonable alternatives existed to the trees' removal, as the building plan could and should be changed to accommodate these trees following the current plan that allows for the existence of these trees. Ms. Wosco opined that property rights should not be limited to the owner of 1507 Cedar Street, rather that, neighbors, broader owners of real property, and future generations have property rights too, as they would be affected by removal of those six trees (including social and psychological benefits, rainwater absorption, character and aesthetics, noise and wind muffling, carbon sequestration, habitat for wildlife, reduced energy costs, and increased property values). She pointed to climate change as being a reason for denying the application. Ms. Wosco opined that Chapter 50 (the Development Code) and Chapter 55 (the Tree Code) were meant to be read together, not one trumping the other. She requested that the trees be put first. Ms. Wosco pointed to Goal #1 of the Comprehensive Plan as being citizen involvement and the interpretation of Chapter 55 should be consistent with the spirit of the Comprehensive Plan. She noted that there were 47 individual objections, including the 30 that were on the petition, plus two neighborhood associations objected (Old Town and McVey-South Shore); adding that she suggested that considerable weight be given to these objections per Goal #1 of the Comprehensive Plan. Ms. Wosco mentioned a one-page letter from Mr. Snell, where he stated that the City should be careful about taking out old trees, as it seemed the reason for the application was that it would be easier to maneuver heavy equipment without the old trees. She stated that this struck her as having a kernel of truth to it. She requested that DRC members deny this application. Commissioner Arthur thanked Ms. Wosco for her testimony, opining that many of her thoughtful City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 7 of 11 14 comments may be better addressed to the City Council as it was the Commission's role to apply the code as written. Commissioner Arthur addressed Ms. Wosco's statement about co-equal status of the Tree Code and the Development code, asking her if she had thoughts or recommendations, or if she supported clarification of the application of those two codes. Ms. Wosco replied that she was not a land use attorney, but she did consult with one, who recommended that same thing, and when she requested authority to the contrary from Mr. Powell, all she heard were crickets. Ms. Wosco affirmed she would address her comments to the City Council. Sue Haines, 1861 Kilkenny Drive, LO 97034, stated that she previously lived at 1507 Cedar Street for 36 years. Ms. Haines addressed the comment by the neighbor who complained of the risk of the trees, stating that the lady was worried about healthy, living trees dropping branches on her grandchildren (after cutting down two of her own trees for dropping things on her yard and patio), so Ms. Haines had arborists come out three times, but to her knowledge, there had never been a branch fall on the roof since her parents bought the property in 1972, as they've been pruned and taken care of. Ms. Haines understood she would have 20 minutes, but then found she did not, so would rush through. Mr. Boone noted that she actually only had three minutes and 45 seconds remaining. Ms. Haines and Mr. Boone discussed the time allowance for each individual, organization, and Applicant. Ms. Donna Larson ceded her five minutes to Ms. Haines. Ms. Haines continued by pointing to the Climate Change Summit that took place on September 21, 2019, where two million people gathered across seven continents to voice their concerns over the reality of climate change, and to the recent findings for potential mega-storms by the United Nations Intergovernmental Panel on Climate Change. She opined that the norm for the City was to let people build what they wanted to build, but the time had come to challenge that norm, because if no changes were made, it would be a non-issue. Ms. Haines listed the same benefits of retaining the trees, as were mentioned previously, and added some additional benefits. She opined that keeping seven trees would produce enough oxygen to support 14 human beings and would remove 336 pounds of carbon dioxide from the atmosphere. Ms. Haines showed a streetview photo from McVey Street, stating that most of the taller trees were on her property. She acknowledged that Renaissance has many excellent people on their staff and wondered why no one there could design a home that could fit without taking out the trees; adding that as trees add to the value of the house, they should be able to get about the same amount of money or even more versus taking them out. Ms. Haines noted that 80% of the white oaks in the valley are now gone and that the Douglas firs could be considered "old growth." Ms. Haines stated that they needed to value the trees, as they were the "lungs of the world", providing 80% of the oxygen, and they need to be environmentally responsible, working toward protecting things that mitigate global warming and pollution. She closed by saying that "every little bit counts" and asked that DRC members deny the tree cutting request. Applicant Rebuttal The Applicant stated she had nothing to add. Deliberation Mr. Boone informed Chair Shearer that DRC members may move to deliberation, as there was no rebuttal. Commissioner Berardi stated that he was sympathetic to the people who showed up and had some really good input, opining that it seemed like they had conflict with the process (to be addressed by the City Council), and that the Commission was there to ensure that the City planners had done their job (with looking at all of the options of moving the configuration of the footprint). Commissioner Berardi asked staff if members were to reject the application, but the City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 8 of 11 14 Applicant followed all of the City requirements, would that be a problem. Mr. Boone responded that if the Applicant had followed all of the criteria, then the process for reviewing would go to the Clackamas County Circuit Court(if the City Council affirmed the DRC decision of denial, as it was not a land use decision, then the issue for the judge would be under "writ of review" to determine whether or not the City had articulated the basis upon which they had made its decision, and if the City did not do so, the judge would grant the "writ" and reverse the decision. Ms. Davis asked that if the question was more focused on the building permit application. Commissioner Berardi stated that Mr. Boone answered his question. Commissioner Berardi pointed to the older footprint of the existing home as being much smaller and it being a heavily treed property; adding that it would be an expense to the builder to make changes. Commissioner Frankel opined that, based on 1507 Cedar Street, other properties on Cedar Street also had big trees on their lots, but couldn't guarantee it, as he might not have been around (citing to 1408, 1425, 1438, 1448, and 1523 Cedar Street). He stated that Renaissance had done there "due-diligence" and did not go up to the 33% lot coverage allowed, rather, they did scale down to keep it in and under many of the houses that were in that neighborhood, so he felt he didn't have the right to bring it down even further, because the previous home owner said "that is the size home that fits for me." With technology, life, or growing families, that was not the size of house the Applicant wanted in there, and to go in and tell them "no, you can't do it because you followed the rules,” Commissioner Frankel stated that he didn't agree with that. Vice Chair Poulson stated that he didn't see this as "approve all six or none," and was a little frustrated, as it seemed there could be a little bit done, especially to save the trees on the east, as they could move the footprint over 2.5-feet to get to a 5-foot setback on the west side. Commissioner Frankel asked which page Vice Chair Poulson was looking at. Vice Chair Poulson asked staff to bring up a picture on the screen. Commissioner Frankel stated he found one on page 68. Mr. Boone interrupted to comment about all seven trees needing to meet criterion #1 through #4, but if some of the trees meet criteria #3 (not needing to look at the exception), then the reasonable alternative analysis would not apply to those trees, or if staff found that three trees triggered the alternative site analysis because they were one of the seven not to be met, those would be the trees to look at; opining that it would not be all seven, unless the Commission found that all seven trees were significant. Vice Chair acknowledged that he understood, but was looking at the ones he felt were "significant" (being the ones on the east side), adding that with a little care around the root system, there ought to be a way to take out that foundation and put in another one in almost the same spot and have those trees exist and survive as they were today. He opined that their problems were that they were not valuing trees enough, as it is "they meet the criteria" or "they were in the way of the house", and then just decide to get rid of them. Vice Chair Poulson stated that he would wish for just a little more care. Commissioner Frankel stated that he was not disagreeing, but did not realize it was their job to put the value on the tree, per se; adding that he agreed and would love to keep certain trees than not, but the value of the tree was coming from what the codes were. Vice Chair Poulson pointed to the ambiguous term "significant" as being a way to consider value, and if looking at the skyline and how it would be affected, he would rather take out less than more. Commissioner Frankel again stated that where the value comes in, they could put their opinion or a little bit of subjection in there. Commissioner Silen asked Vice Chair Poulson if he was suggesting moving the footprint 2.5 feet to the left/west, and then what would need to happen, as it would not be quite enough space according to the calculations they heard earlier. Vice Chair Poulson stated that they could modify the footprint just enough with an integrated design, to think about analyzing those trees, where the roots were, and how they were coexisting with the house today, and then modify the architectural footprint to accommodate City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 9 of 11 14 them. Chair Shearer stated that he agreed with what members were saying and liked it, but did not know if that was their purview, rather, to look at what was in front of them, interpreting the code. He stated that he agreed with staff that the Applicant fell within the boundaries of getting the Type II tree permit, opining that he felt that was how they should look at it. He stated that he could design something on that property that would not affect the trees, but the Applicant followed all the rules that were set up by their citizens, and according to the staff report, he could not see where he did not agree with staff. Vice Chair Poulson acknowledged that he knew the Commission's job was not to design the footprint, but was simply pointing out the hierarchy of their process, as he knew a footprint modification was possible, and the criteria used a lot in the argument in support of the removal was the conflict of that footprint relative to those trees, so if he were to say "that footprint does not have to be" and the hierarchy of their decision was based on other things (such as the significance of the tree, itself) and if they were to deem those trees as "significant" or to deny the trees, that would motivate the developer to go back and look to redesign the footprint to save the trees. Commissioner Silen asked staff to indicate which trees they felt were "potentially significant" and why they were not actually "significant." Ms. Davis responded that two of the Douglas firs were visible in the neighborhood, so could be considered "significant" within the neighborhood skyline, and the 19-inch Colorado spruce was potentially "significant" due to species, but there was a lack of evidence one way or the other, to say so. Commissioner Silen then asked if that was the tree that was involved with the driveway issue. Ms. Davis affirmed. Commissioner Silen inquired if the two trees in the back were considered "significant." Ms. Davis replied that they were potentially "significant" to the neighborhood skyline. Mr. Boone stated that staff found them to be "significant." Ms. Davis affirmed that they were reviewed for alternative analysis. Mr. Boone indicated that would be a potential now, as it would be up to the Commission to make that finding. Commissioner Silen asked how the storm drainage was currently managed. Ms. Davis replied that she was unaware, as she does not review stormwater systems; adding that if the house had been in place since the 1970's, it may not have a system that meets current standards. Commissioner Silen asked Mr. Boone what were the rights of the property owner, as there was clear tension here; seeing that they have complied with all rules having to do with fitting the structure within the envelope. Mr. Boone responded that the rights were defined by the code (proposal of a house permitted under the zone) and if that were to affect trees, it would trigger the owner's obligation to show that alternative site locations had been considered and were not reasonable (such as the example earlier of changing the geometry of the house from a square to a triangle). Commissioner Silen opined that an alternative site was not the same as an alternative footprint. Mr. Boone replied that was what he meant, citing an application that was approved by this Commission, that then went to the City Council on appeal, and the question was one of moving it a bit, with the Council finding no evidence of presentation of consideration of the alternative footprints or why they wouldn't work. Mr. Boone then cited the code "consider alternative site plans;" noting that staff had looked at alternative footprints to be alternative site plans (for example, an option of flipping the house or pushing it in or out one way or another). Commissioner Arthur pointed members to Exhibit G-213, the letter from Jan Castle on behalf of the McVey-South Shore Neighborhood Association (M-SSNA) citing the request to deny the application on the basis of requiring a house that necessitated the removal of fewer trees. He then asked staff if Commissioners found that the Applicant had satisfied the applicable criteria under the Tree or Development Code, what would be the guidelines they would have, other than just redrawing another house plan that would guide them if they wanted to entertain the suggestion by M-SSNA to change the design of the house. Mr. Boone replied that DRC City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 10 of 11 14 members would not look at the Development Code, but the question would be if the Applicant was proposing something that was within their rights, and if so, under the Development Code, it would stop there; however, the next question would be, if there were "significant" trees that would be affected, had the Applicant shown they had considered alternative site plans and that there was nothing else to give them reasonable development; adding that it was not a reduction of the house size, rather, the question would be what the Applicant was allowed under the zone for a certain amount of lot coverage, and if there would be another means that would allow for a provision of reasonable development opportunity (it would be a burden-of-proof question). Vice Chair Poulson opined that the stormwater was a bothersome thing, as they had not seen the basis for the design (it was not in their packet and should have been, as it was one of the reasons for the removal of the tree and that it couldn't be relocated). He added that some developments in Portland take up the whole lot/block, so the opportunity to put in underground storm-tech chambers was often not available. He listed the hierarchy of how Portland looked at things: infiltration systems; detention pond/underground piping; and existing trees or planting trees. Vice Chair Poulson informed members that when looking at increasing the impervious surface by only 400-square feet (20-feet by 20-feet), the trees there now would mitigate for that additional square footage if they were to remain. He opined that he thought that in the Stormwater Code there were opportunities for the Applicant to present to the City a proposal to mitigate the impervious surface increase associated with the tree canopy that currently existed in order to avoid the storm/septic chambers (which would also save a lot of money if they did not have to dig it up). He stated again that they were not appreciating the value/benefits that the trees bring to a site, adding that he agreed with everyone's perspective, but felt that there was not enough effort to look at the root balls, how the house could be designed around it, how to reconfigure the site to have the same size house and keep the trees, and how to reconfigure the driveway to keep the Colorado spruce. Vice Chair Poulson stated that he would be voting "no;" using the criteria that the trees were "significant" and needed to be preserved. Decision Commissioner Frankel moved to approve AP 19-07, as stated in conjunction with the City. Seconded by Commissioner Berardi and passed 4:2. Commissioner Arthur stated he was voting "yes," based on his understanding of the criteria that apply and their rule as a Commission, pending further changes in the applicable Tree Code to make a better coordination between the Development Code and the Tree Code. He opined that he felt the criteria had been met and was persuaded by staff's recommendation and by the Chair's comments as well as other comments by the Commissioners. Mr. Boone instructed staff that the Tentative Decision and written Findings would be brought back to the Commission on October 21, 2019. OTHER BUSINESS Schedule Review and Management Update Ms. Numanoglu informed DRC members that there were no other items scheduled for October 21 so they could meet at 6:00 PM in the Council workroom, or they could arrange to participate by phone if they were unavailable and that was more convenient. Chair Shearer proposed looking at the Findings and taking up the work session Minutes at the same time. Commissioner Berardi asked how the Commission could get this before the City Council to address this for future older homes. Chair Shearer noted that they had talked about that a little bit. Ms. Numanoglu added that DRC members could submit a unified recommendation to the City of Lake Oswego Development Review Commission Minutes of October 7, 2019 Page 11 of 11 14 Council that they believed this needed to be looked at by that body, noting that the Council had been asked about trees on numerous occasions, but had not directed staff to review the Tree Code at this time. ADJOURNMENT Chair Shearer adjourned the meeting at 8:53 PM. Respectfully submitted, /s/ Kat Kluge Administrative Support