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Approved Minutes - 2021-05-17 PM O. CITY OF LAKE OSWEGO visorV Development Review Commission Minutes May 17, 2021 C?E GO The Commissioners convened at 7:03 PM online, via Zoom. Members present: Chair Jeff Shearer, Vice Chair David Poulson (joined at 7:06 PM), Jason Frankel, Randy Arthur, Mark Silen, and Craig Berardi Members absent: Kirk Smith Staff present: Jessica Numanoglu, Planning Manager; Evan Fransted, Senior Planner; Evan Boone, City Attorney Pro Tern; and Kat Kluge, Administrative Support MINUTES May 3, 2021: Commissioner Arthur noted a possible discrepancy (based on the supplemental memorandum dated May 14, 2021) on Page 2, Paragraph 4, where it reads, "The closest structure is the neighbor's abutting garage at 10.8 feet from Sarah Hill Lane." This should be amended to read "...13.8 feet from Sarah Hill Lane," if confirmed by a review of the taped recording of the meeting. Commissioner Arthur moved to approve the Minutes of May 3, 2021, with the correction noted, once confirmed. Seconded by Commissioner Frankel and passed 5:0. PUBLIC HEARING LU 20-0032, an appeal of the staff decision to approve the following Residential Infill Design (RID) variances in order to construct an addition onto an existing single-family dwelling: • Reduce the 25-foot front yard setback from Sarah Hill Lane to 10 feet; and • Allow the garage to be located closer to the street (Sarah Hill Lane) than the dwelling. This site is located at 17760 Lake Haven Drive [21E17BC01500]. The Staff Coordinator is Evan Fransted, Senior Planner. This hearing was continued from May 3, 2021 to allow additional written testimony only. New written testimony was due by 5pm on May 10, 2021 and written rebuttal to the testimony received by May 10th, was due by 5pm on May 12, 2021. No oral testimony will be taken at this hearing. Evan Boone, City Attorney Pro Tem, outlined the procedure for review of objections to new testimony received that were raised by the appellant. Mr. Boone asked DRC members to declare if they have had any ex parte contacts (including site visits), biases, or financial conflicts of interest since the last meeting. All DRC members City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 1 of 8 declared they have no ex parte contacts, conflicts of interests, and no biases, except as follows. Commissioner Arthur declared that he did make a site visit the Saturday prior, parking along Lake Haven Drive and walking through the City-owned undeveloped lot and down Sarah Hill Lane. He stated that this did not create a bias and he would be evaluating this case on the merits. There were no inquiries regarding Commissioner Arthur's observations. Staff Report Evan Fransted, Senior Planner, described and entered into the record the following exhibits received by the May 10 and May 12, 2021 deadlines: F-004 to F-006, G-100 to G-119, and G- 209 to G-223. The issues raised are as follows: Variance to allow garage to be located closer to Sarah Hill Lane than the dwelling; Variance to reduce front yard setback along Sarah Hill Lane; Overall design of proposed building addition; Preservation of Douglas fir tree located near construction activity; City-owned open space tract; and Proposed new driveway and fence/gate along Sarah Hill Lane. Based upon the materials submitted by the Applicant and findings presented in the staff report and staff memos to the DRC dated April 23, May 3 and May 14, 2021, staff concludes that LU 20-0032 complies with all applicable criteria and standards or can be made to comply through the imposition of conditions, and they recommend approval of the application. Mr. Fransted noted that three new exhibits were received today: F-007 (Applicant's final written argument), and G-226 to G-227 (objections by Appellant's Counsel). Mr. Boone indicated that DRC members should rule on the objections raised by Appellant's Counsel (deciding whether the information in the staff memo would be considered "new evidence" - definition noted) before proceeding to deliberations. The sequence for proceeding with the remainder of this public hearing was then outlined by Mr. Boone. Appellant Mr. Levine, Appellant, read their attorney's latest response into the record (sent at 5:30 PM on May 17, 2021, summarized as she opined that no further explanation from the Applicant was needed). He had no additional comments to make regarding the objections raised by his attorney. Chair Shearer noted that Vice Chair Poulson had joined the meeting. Applicant Joan Hutchinson, Property Owner/Applicant, stated that she felt that Mr. Fransted's memo referred back to earlier documents, and that she did not see anything new. Staff Opinion Mr. Fransted noted that the items discussed in his memo were in the staff report and were staff opinions that explained the standards and were not new evidence. Deliberation Members discussed the objections one-by-one. Exhibit G-226, Issue #1 objections: This paragraph sets forth a number of new facts: 1) Whether or not the proposal maintains the "design aesthetic of the existing dwelling." - this staff City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 2 of 8 opinion is presented as a fact to show that particular criteria are satisfied; 2) Any garage toward Lake Haven Drive would require more extensive variances; 3) Reconfiguring the interior of the home would be more disruptive; and 4) Staff evaluation of the "practicability" of the other options. Subsection 1): Commissioner Frankel opined that this was not a "new fact" because the aesthetics were discussed previously and were seen in other documents. He agreed wholly with staff's opinion. Commissioner Arthur indicated that these were analytical observations by staff and were consistent with and in line with the analysis mentioned at the prior hearing. He stated that he would not accept the objection; however, he appreciated the organized format in which the Appellant's attorney had presented those matters. Vice Chair Poulson stated that he remembered that these issues were brought up in the staff report and in other discussions by both the Appellant and the Applicant, and so would not be new information, rather would be an expression of opinion. He stated that he agreed with everyone else thus far. Commissioner Berardi recalled these issues being brought up. He acknowledged that there was a difference of opinion regarding the design of the house between staff and some of the neighbors. He stated that he saw no new facts. Commissioner Silen agreed in substance with the opinions over subsection 1). Commissioner Frankel moved to find that Issue#1, Subsection 1) was not a fact (agreeing with staff opinion). Seconded by Commissioner Arthur and passed 6:0. Subsection 2): The Appellant stated that this was a new fact not previously brought up in any other document. The Applicant rebutted this by saying that this was copied and pasted from the original staff report. Mr. Fransted noted that this was a matter of opinion and discussed on page 14 of the staff report. Commissioner Frankel moved to agree with staff on Issue #1, Subsection 2), specific to any garage. Seconded by Commissioner Arthur and passed 6:0. Subsection 3): The Appellant stated that he and his attorney could not find this item mentioned in any previous document. The Applicant opined that this was an assumption because when you move a garage from one side of the house to the other side of the house, it would be very disruptive to the existing structure and visual nature of the home. She stated that she agreed with staff. Mr. Fransted again indicated that this was an opinion. There were no new plans submitted that showed how the interior could be redesigned. That would be speculative and very disruptive in his opinion. Vice Chair Poulson indicated that whether this was new information or not was very interesting. He stated that he is not agreeing or disagreeing whether this is a fact, but he is saying that it is not new information. Mr. Boone explained that it was not that new opinions could not be raised, City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 3 of 8 rather, that new evidence could not be submitted. Vice Chair Poulson stated that with this definition, it was clear that these were not new facts. Commissioner Frankel moved to agree with staff on Issue #1, Subsection 3). Seconded by Commissioner Arthur and passed 6:0. Vice Chair Poulson declared that, since the last meeting, he has had no ex parte contacts (including site visits), biases, or financial conflicts of interest. Subsection 4): The Appellant opined that the other options were not considered as far as their practicability. The Applicant stated that this was not new. Mr. Fransted indicated that this was an analysis of other comments that were submitted and was not a new fact. Commissioner Arthur agreed that staff was presenting their evaluation and expressing what they found regarding practicability; a position in which the Appellant disagreed. He again opined that these were analytical opinions and not new facts. Commissioner Frankel moved to agree with staff on Issue #1, Subsection 4), regarding practicability. Seconded by Commissioner Arthur and passed 6:0. Exhibit G-226, Issue #2 objections: Suggesting that a deviation will be "generally consistent" when it does not "stick out like a sore thumb" provides additional facts or guidance about how to interpret LOC 50.08.003.3.a.ii, offers facts that go to whether a criterion is or is not satisfied, and is not reflected in the March 18 staff report or other materials submitted to date. The Appellant stated that this was new information, and nothing was previously said about "sticking out like a sore thumb." The Applicant opined that staff summarized some of the feedback received from the public during the additional evidence submission period, adding that they may have been confused about the scale and the rendering. Mr. Fransted indicated that this was an interpretation and not fact. Commissioner Arthur pointed to the objection being over additional facts or guidance given, but that it seemed to him that providing guidance was an expression of opinion. He stated that he did not consider the quoted statement as being additional fact and that he would be siding with staff on this issue. Commissioner Arthur moved to reject the objection raised in Issue #2 and to agree with staff. Seconded by Commissioner Frankel and passed 6:0. Exhibit G-226, Issue #3 objections: New facts set forth here that are not reflected in the record include: 1)A conclusive statement that the proposed garage setback is "similar" to the one next door and that the proximity of the park reduces visual clutter; and 2)What is proposed is better than a full-height building set back 25 feet from Sarah Hill Lane. City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 4 of 8 Subsection 1): The Appellant asked Mr. Boone to define "fact" again. Mr. Boone stated there is no definition in the Code, so they use the common definition of: something that is hard and fast; is not an opinion, an interpretation or advice; is physical or an immutable conclusion; is proven in science to some degree. DRC members will interpret the term "fact" as it will. Mr. Fransted read the definition of"evidence" as: facts, documents, data, or other information offered to demonstrate compliance or non-compliance with standards believed by the proponent to be relevant to the decision. The Appellant stated that this was new information not found in any prior documentation (the assertion that the garage is "similar" is a new fact). The Applicant noted that there was nothing new about the location of the neighbor's garage and that "similar" is subjective. Mr. Fransted pointed to this being mentioned on Page 18 of the staff report and is an opinion. Vice Chair Poulson stated that he looked at the location of the garage in the information provided at the last hearing and he based his opinion on that, as he has seen no new information to change how he looked at the garage location. He agreed with staff. Commissioner Arthur opined that "similar" was in the eye of the beholder and was an opinion. Commissioner Frankel moved to agree with staff on Issue #3, Subsection 1), regarding practicability. Seconded by Vice Chair Poulson and passed 6:0. Subsection 2): The Appellant stated that this was a new fact not brought up in previous documentation. The Applicant rebutted that this was an opinion. Mr. Fransted pointed to the detailed discussion on Pages 15 and 20 of the staff report, adding that stating something is "better than" is an opinion not a fact. Commissioner Frankel moved to agree with staff on Issue #3, Subsection 2). Seconded by Commissioner Arthur and passed 6:0. Exhibit G-226, Issue #4 obiections: The new facts here include: 1) Staff's long-standing interpretation of the term "exceptional;" 2) How an "extravagantly detailed house" would be viewed under the relevant criteria; and 3)Again, whether the new Sarah Hill Drive façade has been designed to complement the design aesthetic of the dwelling. Subsection 1): The Appellant stated that a "long-standing interpretation of the term 'exceptional' would be considered a fact. The Applicant pointed to the term "exceptional" being woven through documentation provided by staff. Mr. Fransted noted that the way this was analyzed was consistent, but they never talked about "staff's long-standing interpretation." He opined that this would be new evidence and should be City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 5 of 8 stricken from the record. Commissioner Frankel moved to have the information in Issue#4, Subsection 1) stricken from the evidence. Seconded by Commissioner Berardi and passed 6:0. Subsection 2): The Appellant stated that this was a new fact not previously brought up. The Applicant pointed to the sentence starting with the words "For instance" being an implied example statement, to provide context to staff's opinion. Mr. Fransted noted that he was offering his opinion, and this was not a fact. Vice Chair Poulson opined that this would be giving guidance. Commissioner Frankel added that it was an example of an opinion. Mr. Boone pointed to the additional words of"might have" and whether that would be considered a fact in this case. Commissioner Arthur opined that the statement being challenged in #4, 2) was an opinion and he would side with staff. Commissioner Arthur moved to reject the objection in Issue #4, Subsection 2), and to accept staff's position in viewing it as an opinion, not a new fact. Seconded by Commissioner Berardi and passed 5:1. Subsection 3): The Appellant stated that this was a new fact. The Applicant rebutted that this would be an opinion and that the materials were reviewed during the initial staff report. Mr. Fransted noted that this would be a value statement and an opinion, not a fact. Commissioner Berardi asked if this kind of statement could be a fact. Mr. Boone stated it could be considered a fact when it is noted as a finding, as other information was used to draw this conclusion. Vice Chair Poulson opined that this was not new information. Commissioner Frankel moved to agree with staff on Issue #4, Subsection 3). Seconded by Commissioner Arthur and passed 6:0. Exhibit G-226, Issue #5 obiections: Adding an arrow pointing out the location of the trees and recommending that certain conclusions be drawn from the photo depiction are new facts. The Appellant stated that the picture with the arrow pointing to the trees and that statement that the trees were "prominent" was new evidence. The Applicant noted that the trees have been there a long time, were seen in many other photos and that they were important to keep intact. Mr. Fransted pointed to Exhibit E-009 and F-004 being photos of the street view and of the trees. He acknowledged that this was a new photo of the trees, but that the trees are shown on the site plan and the analysis was the same. Being "prominent" would be a judgement or an opinion. City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 6 of 8 Vice Chair Poulson asked staff if the arrow was added. Mr. Fransted affirmed it was to highlight the trees and was in response to the comments raised. Vice Chair Poulson agreed that this did not add new information. Commissioner Frankel moved to agree with staff on Issue #5. Seconded by Commissioner Arthur and passed 6:0. Exhibit G-227, Issue #1, Page 4 of 6 from the Applicant's final rebuttal power point: All of the information contained in Slide 4, both the image and narrative text, is new and should be disregarded by the DRC. The Appellant stated that the fourth slide was a brand-new rendering (showing their garage as a blank wall) and the third bullet point was confusing and a new assertion. The Applicant noted that this photo was used previously, but just zoomed out and having additional trees, and the Appellant has had this information since last summer. "Proud" means "forward of." Mr. Fransted agreed that the trees were new, but that the information noted in the bullet points was not new evidence. Commissioner Arthur acknowledged that this was a different illustration; however, the changes were deminimus and not a materially new fact. Commissioner Frankel moved to agree with staff and reject the objection in G-227. Seconded by Vice Chair Poulson and passed 6:0. Deliberations Commissioner Arthur asked staff if they needed to do an analysis to determine whether the trees were significant. Mr. Fransted replied that that would only be necessary with a tree removal application and in this case, the trees will be retained. Commissioner Arthur then asked what staff would recommend as a condition to protect the trees. Mr. Fransted stated that they would need to do the analysis to add that condition, if members find that the trees should be retained. Mr. Boone added that if the trees were found to be necessary to meet the criterion of the neighborhood objectives, goals, materials, and design, that condition could be included. This would also protect the trees in the future, requiring a similar replacement should they die. Commissioner Arthur stated that he appreciated that clarification and that he would support that condition. Vice Chair Poulson stated that he could understand the neighbors' shock, but the evidence provided showed the criteria were met. He agreed that the Applicant could probably not come up with something better if they were to deny this application. He indicated that he would be voting in favor of this application. Commissioner Berardi concurred with Vice Chair Poulson. He acknowledged that this was a different type of situation adding another garage to a different street. He stated that he agreed with the staff report. Chair Shearer agreed with what has been said and that the ideas he has would not change his vote. City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 7 of 8 Commissioner Arthur moved to approve LU 20-0032, with the condition of preserving the trees, as explained by staff and City Attorney Boone. Seconded by Commissioner Berardi and passed 6:0. Mr. Boone directed staff to return the Written Findings, Conclusion, and Order on June 7, 2021 at 7:00pm. FINDINGS LU 20-0045, a request for approval of Major Variances to the front yard, north side yard and rear yard setbacks in order to construct carports in an existing residential parking lot. This site is Tract A of the Lake Oswego Sailing Club PD on 3rd St. (No site Address) [Tax Map/Lot 2110AB12200]. The Staff Coordinator is Evan Fransted, Senior Planner. Commissioner Frankel moved to approve the findings of LU 20-0045. Seconded by Chair Shearer and passed 6:0. OTHER BUSINESS Schedule Review and Management Update Ms. Numanoglu updated DRC members on upcoming meetings: June 7, 2021 will have a hearing for a new multi-family project in the Downtown Redevelopment Design District. The staff report for this application will be available on May 28, 2021 (10 days prior to the hearing). June 21, 2021 will have a hearing for a new multi-tenant commercial structure in the Southwest Overlay District. This is still on-track to be the first scheduled in-person meeting at the new City Hall. The Diversity, Equity, and Inclusion training is available for all Commissioners who wish to attend. ADJOURNMENT Chair Shearer adjourned the meeting at 8:41 PM. Respectfully submitted, /s/ Kat Kluge, Administrative Support City of Lake Oswego Development Review Commission Minutes of May 17, 2021 Page 8 of 8