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Approved Minutes - 2021-11-01 PM CITY OF LAKE OSWEGO Development Review Commission Minutes November 1, 2021 opEGUr The Commissioners convened at 7:00 PM at City Hall, in the Council Chamber, 380 A Avenue, Lake Oswego, OR 97034. Members present: Chair Jeff Shearer, Vice Chair Randy Arthur, Mark Silen, Craig Berardi, Bruce Poinsette, and Dwight Sangrey Members absent: Kirk Smith Staff present: Jessica Numanoglu, Planning Manager; Jason Loos, City Attorney; Evan Boone, Deputy City Attorney; Evan Fransted, Senior Planner; Brian Don, Building Official; and Kat Kluge, Administrative Support REPORT ON COUNCIL ACTIVITIES —Aaron Rapf, City Councilor Councilor Rapf updated members on the following recent City Council activities: the wastewater treatment plant geotechnical analysis and environmental studies results, and consultant bids were shared by City staff on October 5, 2021 (everything is moving according to plan); the City took over management of the Rassekh property and a plan to develop a park is in the works; and the community policing outreach meeting wrap-up was held last week. Commissioner Berardi asked if the discussion over the allocation of the COVID-19 monies was still ongoing. Councilor Rapf replied that the City Council was waiting to hear how much the North Shore Bridge repair was going to cost before deciding how much would be left for other potential projects. MINUTES October 4, 2021 Minutes October 18, 2021 Minutes There were no corrections noted. Commissioner Berardi moved to approve the Minutes for both of the above dates with no changes. Seconded by Commissioner Poinsette and passed 6:0. PUBLIC HEARING LU 21-0016: An appeal of the staff decision on a request for Formal code interpretation of LOC 50.01.006, Nonconforming Structures. This site is located at 3300 South Shore Blvd (Tax Id: 21E17AB02300). The Staff Coordinator is Evan Fransted, AICP, Senior Planner. Development Review Commission Minutes November 1, 2021 Page 1 of 11 Jason Loos, City Attorney, gave an overview of the public hearing process, outlined the applicable criteria and procedures, and gave instructions for any additional verbal testimony given. Mr. Loos asked DRC members to declare any ex parte contacts (including site visits), biases, or financial conflicts. All DRC members present declared they have no ex parte contacts, conflicts of interest, and no bias. Several members mentioned that had driven by the site but had not made any specific site visits. There were no challenges to the Commissioners' rights to hear the application. Staff Report Evan Fransted, Senior Planner, presented the staff report. Mr. Fransted noted that two Exhibits were received after the staff report was written (F-014 and G-100), and that an additional set of papers was handed in that night by the Applicant. The Applicant's Attorney requested to move forward with the hearing and be allowed to request a continuance to submit new evidence at the end of the hearing, if needed. This request was granted. Mr. Fransted explained that, unlike a Development Review Permit application, the specific site conditions were frequently not relevant to the interpretation of Code text in a Formal Interpretation application. He then stated that the task was not to apply criteria to a development proposal; rather, the question was what does the specific applicable Code text mean. The site is located on South Shore Boulevard, with Alder Circle to the north and Cedar Road to the west. It is zoned R-7.5 and is developed with a single-family dwelling and a carport. The front yard setback is 25 feet from Cedar Road. South Shore Boulevard has a special street setback, measured 40 feet from the centerline of the right-of-way (ROW). The required street side yard setback is 20 feet along South Shore Boulevard, measured from the special street setback. The side yard setback is 5 feet from the southwest lot line. In 2014, a Residential Infill Design (RID) variance application was filed by the prior property owner, and approval was given to remodel and construct an addition to the existing dwelling and to reconstruct the existing carport. The pre-existing shed, identified by the Applicant as a reason for the request for a Formal Code Interpretation, was considered to be nonconforming to the special street setback, street side yard setback, and side yard setback. The approval included a condition of approval (COA) regarding the accessory structure that was a recitation of the normal nonconforming standards. In 2016, a building permit was issued for the development approved by the RID, which also included rebuilding the accessory structure in error. The RID approval did not include or authorize the removal or reconstruction of the accessory structure. For reasons unknown, the Applicant did not move forward with the project and the RID approval and building permit expired in 2018. In 2019, a building permit issued for the same plans that were submitted in 2016. The accessory structure was then demolished, and a new foundation was poured in the same location. A short time later, City staff found the error regarding the reconstruction of the nonconforming accessory structure and a stop-work order was issued on the building permit. Mr. Fransted relayed that the Applicant noted good faith and reliance on the building permit in leveling the accessory structure, and argued that not allowing the Applicant to build a new structure in the same degree of nonconformity was grossly unfair and inequitable, and that building permits should not be revoked by the City unless it wished to repay damages resulting from that decision. The question in this Formal Code Interpretation is limited to the interpretation of the Code provisions, specifically the nonconforming standards, not to rule on the fairness and equities of the Development Review Commission Minutes November 1, 2021 Page 2 of 11 case. This Commission is to determine what the Code text means. Whether the City or Applicant bears responsibility or liability for circumstances that gave rise to the filing of the Interpretation, or what the consequences are to the Applicant or to the City resulting from the Interpretation are not before the Commission. The Commission is not to adjudicate the causes, liabilities, and remedies of the Applicant or of the City. The requested interpretation would apply to any structure where nonconforming standards apply, not just to this particular accessory structure, but to any nonconforming structure (NCS) (e.g., a two-story house nonconforming to maximum height, lot coverage, or floor area standard). NCSs are structures that were legally constructed at the time they were built, but due to a subsequent change in code standards, are no longer permitted except to the degree permitted by the nonconforming regulations (the regulations are a means to mitigate the effective change in zoning standards by allowing continued use and maintenance, but to affect the phase out of NCSs through attrition). Staff's Formal Interpretation (issued in the Staff Report dated August 27th) was that, when a landowner voluntarily undertakes a reconstruction project in which a NCS is dismantled in the process of rebuilding, the nonconforming standards did not allow a transfer of nonconformities from the removed NCS to a replacement structure. Staff agreed with the Applicant that LOC 50.01.006.4.a.iv does not authorize such a transfer of nonconforming rights. Lastly, the Enforcement standards of LOC 50.09.002.3 do not apply to the suspension or revocation of a building permit. Three other issues raised by the Applicant in the request for Public Hearing include: whether a landowner is allowed or required to make whatever resulting structural and foundational upgrades are needed to support a new roof and to comply with the current version of the Oregon Specialty Structure Code (staff found that dismantling the NCS to its foundation and new construction that does not conform to the code was not authorized in order to change the roof pitch); whether a landowner is allowed to make changes to a NCS that did not increase the degree of nonconformity when those changes fell outside the definition of mere maintenance (staff found that the only change permitted to a NCS was a change to the roof pitch that did not encompass rebuilding new construction from the foundation up); and whether the general conformance of the Code provision be interpreted as the authority to interpret Code sections that authorized development action included as an implied negative (staff found that this provision was an express prohibition of any construction, reconstruction, or alteration that did not comply with the requirements of Chapter 50). Evan Boone, Deputy City Attorney, described the applicable methodology recommended for DRC members' analysis, noting that the application originally included 8 different Code sections requested for interpretation, which now has been winnowed down to 2 major sections. He stated that the methodology to interpret the code was to look at the text, context, legislative history, and the rules of construction in order to determine what the Planning Commission meant at the time the Code was adopted (a step-by-step analysis of these Provisions is found in the Staff Report dated August 27, 2021). The individual circumstances that brought this case before them and what may happen in the future is not before this Commission. The DRC is to determine what these words mean. Mr. Boone then explained the statutory schemes, starting first with LOC 50.01.002 (the Compliance section) and going to LOC 50.01.006 (the Nonconforming Use section). The McKay Creek case, cited by the Applicant in their appeal, was found not to apply because it dealt with a county's Nonconforming Code. There are four sections dealing with nonconformities: Continuation (2.a); Maintenance (2.b - nothing shall prevent the restoration of a structure when deemed unsafe by a public building official: e.g., rot found when peeling back siding and building official Development Review Commission Minutes November 1, 2021 Page 3 of 11 contacted) - this does not apply in this case; Expansion or Change (3.a -this allows for only the roof pitch to be changed - see pages 9-15 of the October 22, 2021 Staff Memo); and Damage and Reconstruction (4.iv, i - reconstruction allowed only with unintentional damage and the 50% damage test removed by the Planning Commission). He relayed that the Applicant's argument focused on two alternatives: the roof pitch and that the Code did not prohibit new construction. When looking through the code schemes, Mr. Boone found no authority to do what the Applicant requested. Pages 12 and 17 of the Applicant's appeal statement cite the lack of prohibition in reconstructing a structure of the same size and dimensions on the same footprint; however, the Compliance section states that you cannot construct something that does not comply with the Code, and the Nonconforming section gives the authority to only change the roof pitch. Staff urges the interpretation of 2.b and 3.a.iv, as set forth in the October 22, 2021 Staff Memo. Mr. Boone stated that he had trouble understanding the question over issue #3 in Mr. Stamp's October 29th, 2021 reply letter, adding that he found no code provisions that authorized the intentional demolition of a structure and the reconstruction of the structure to the same prior degree of nonconformity. Questions of Staff Vice Chair Arthur asked how a Formal Interpretation of the Code would differ from previously used term of"DRC Precedent." Mr. Boone replied that they were essentially the same thing; however, they arose through two different venues (e.g., a Minor Variance application versus Formal Interpretation). Mr. Boone added that once a Formal Interpretation was made, it was binding to the property for the proposed application; however, it would create precedent as it would then be applied to future applications. Vice Chair Arthur inquired whether the decision would apply to just accessory structures or also to primary structures. Mr. Boone affirmed that it would apply to all nonconforming residential structures, both accessory and primary. Vice Chair Arthur then asked if this would also affect demolition codes. Mr. Boone stated that it would not, as this would only affect roof pitch. Commissioner Berardi stated that the precedent issue was concerning to him and asked how this would be different compared to other cases that they have heard. Mr. Boone indicated that the DRC normally heard cases such as Conditional Use or Variance requests and those dealt with unique circumstances specific to that property (e.g., retaining wall, landscaping, mitigation, etc). He noted that, in this case, the circumstances of the surrounding property were irrelevant. Commissioner Silen expressed his confusion over the issuance of two separate building permits to two separate owners, adding that he understood that the building permits required foundation work to accomplish the change in roof pitch. Mr. Boone explained that the original RID did not grant any variances to the accessory structure, and only noted the ability to change the roof pitch per the nonconforming standards, and that the building permits (which included the house, the garage, and the accessory structure) were issued in error, in terms of the accessory structure. Commissioner Silen then asked why the homeowner was being held accountable for the City's error (after they acted in good faith on the issued permit). Jessica Numanoglu, Planning Manager, noted that there was a Tort claim being adjudicated separately and that it was not up to the DRC to resolve that issue; they were to focus on how to interpret the code in regard to a NCS. Speaking to Commissioner Silen's question, Mr. Boone queried whether the building permit was valid/issued correctly (correctly or incorrectly applying the Code), opining that there was no analysis seen in the first building permit, and the second permit was only a reissuance of the first. He noted that any potential damage would be addressed through the Tort claim, and the remedy is to apply the Code, which would apply to all applicants. Development Review Commission Minutes November 1, 2021 Page 4 of 11 Chair Shearer inquired who was responsible for determining whether a structure was conforming or nonconforming during the building permit phase. Mr. Boone replied that the application was filed with the Building Department and reviewed by the Planning Department, who then would sign off on the application; however, the obligation to comply with the Code was, ultimately, the property owner's (i.e., it was not up to the Building Department to "catch you"). There had been cases where errors were found and stop-work orders or revocations were issued in order to make the correction. Chair Shearer asked if the homeowner could have rebuilt the shed exactly as it was, remodeling one wall at a time. Mr. Boone responded in the negative, as the 50% test no longer existed to allow for progressive remodeling. He noted that the question would be whether the homeowner intended to remove the structure and for what purpose. Chair Shearer requested confirmation that the building official never saw this structure. Mr. Boone affirmed. Chair Shearer then asked for confirmation that LOC 50.01.006.3.a.iv would be the governing paragraph if a homeowner wished to change the roof pitch of a NCS. Mr. Boone again affirmed. Mr. Fransted added that the Code allowed for only the change in roof pitch and that the homeowner must use the existing support structure to do so; they would not be allowed to tear the building down to change the pitch of the roof. Chair Shearer asked for the citation which stated that intent. Mr. Boone replied that members would need to look at the legislative history, as there were many ways to change the roof pitch (this was a complete demolition that did not need to occur). Chair Shearer argued that a homeowner would not look at legislative history but would look at the Code, and that Code does not prohibit changing the supporting structure. Mr. Boone stated that this authorizes a change to an existing NCS. Chair Shearer requested a walkthrough to explain why this precludes the addition of supporting members. Mr. Fransted replied that supporting members could be added to change the roof pitch; however, removing existing support members (i.e., the frame, columns, or any other structural support) was not allowed, unless it was normal maintenance or repair, or if the building official determined it was unsafe. Brian Don, Building Official, added that the homeowner could get a truss design that would not add any support members to the roof system, as it would carry the same bearing; however, there were situations where extra support members would be needed when raising the roof, but this would not be demolishing the entire wall system of the structure. Mr. Boone noted that the City agreed that support members could be added to change the roof pitch, but they disagreed with the Applicant's opinion that this meant the structure could be demolished and rebuilt, adding that this was addressed in the "Damaged" section which dealt only with unintentional damage. He further explained that changing the roof pitch was not a vehicle/work around to demolish and reconstruct an entirely new structure. Commissioner Berardi asked for the square footage of the structure. Mr. Fransted replied that it was 165 square feet. Mr. Boone reminded members that this could also apply to a 4000 square- foot house. Applicant Testimony Andrew Stamp, Land Use Attorney representing the Applicant, and Stephen Winstead. Co-owner of NW Building Forensics, presented the Applicant's argument. Mr. Stamp gave a brief history of the Applicant's background and purchase of the subject property. He cited neighbors' opinions that stated they felt that the Applicant had made great improvements to the property. He noted that the Applicant was frustrated because they took the risk to rebuild the building in a way that was attractive; however, it now seemed that the City was punishing them because of a mistake that the City made. Mr. Stamp opined that making the error the Applicant's problem was a bad approach, and that the DRC should really think about not adopting that approach. Images were shown depicting the appearance of the shed in 2005 and in 2021. He informed members that the structure originally contained a bed, sink, shower, and a toilet, and was used as housing for foster care and as a primary dwelling when a former owner became too old to use the Development Review Commission Minutes November 1, 2021 Page 5 of 11 stairs in the house. Mr. Stamp opined that City staff was upset about the new structure and that they wanted it removed because of an error made when they issued the building permit, which did not address conditions in the expired RID. He requested that broad precedent not be made in this case and that the underlying Building Code be allowed to be used when changing the pitch of the roof. He stated that it was not feasible to just add support members to the structure to change the pitch because the 1960's foundation no longer met the Seismic Code and needed to be updated, adding that this became an issue of cascading secondary effects (snowballing downhill). He then opined that none of this was considered by City Planning staff because, frankly, they did not understand a "d..n" thing about the Building Code (seen just a moment ago in prior testimony). Mr. Stamp reviewed the sequence of events and the prior RID and Building Permit orders, found on pages 4-13 of the Applicant's hearing presentation (F-015). He cited modern Building Seismic Code that demanded upgrades to foundations once weight-bearing walls were replaced or upgraded. He pointed to the options suggested in the RID decision. He relayed what he felt were important takeaways from the facts: City Planning staff offered the change from a gable roof to a shed roof and the Building Department required compliance with current Building Codes (requirement to rebuild from the foundation up in order to effectuate the shed roof design, including the replacement of the support wall and upgrading the entire foundation). During the presentation, Mr. Stamp indicated that there were two staff"themes" of this case: the landowner lost their rights to a nonconforming structure when City staff made the error (they did not understand the Building Code consequences of it and use planning decisions/actions, and they mistakenly issued the 2019 Building Permit based on the expired RID land use decision); and there was no right to reconstruct/replace a NCS (the Code disagreed with staff in that damage did not include dismantling of a building or site feature or portion of a building or site feature in the course of voluntary reconstruction or repair, and maintenance did not include structural alteration unless the structural alteration was required to remedy a condition declared to be unsafe by any official charged with protecting the public safety, and the Code allowed NCSs to be expanded in certain respects). He cited Mr. Boone's admission that the City was negligent, and the Oregon Tort law for Negligent Issuance of Building Permit, adding that this was a prima facie case made here that night on the basis of admission. He then countered by relaying the Applicant's three "themes" of this case as: the City erred and they need to take responsibility and make it right; the Code allowed a change in roof pitch, which also encompassed all Building Code requirements/upgrades needed to effectuate that change; and nothing in the Code prohibited changes which did not increase the degree of nonconformity, including the voluntary reconstruction of an NCS. Mr. Stamp pointed to the Maintenance, Changes and Expansions, and Damage sections of the Code, the statements made by both the Applicant and her neighbors that the structure was in poor condition (submitted to the Land Use Board of Appeals - LUBA), and the legislative intent. Mr. Winstead focused on the 6-foot roof pitch section of LOC 50.01.006. He opined that it did not take into consideration the ramifications of additional wind exposure, lateral force analysis, foundation structure, stud wall type, etc. He cited his past military experience, equating what occurred here with what the military terms a "mission creep" (what you wanted to do at one time began to expand and expand and expand as a direct result). He also opined that there was an escalation of Building Code requirements that were not really thought about either when the ALU-214 was originally approved or what it would do to the project. He acknowledged that the Building Department went out of their way to try to help the Applicant and to move this project along, until they found out there was an issue with the permit. Then followed inspections and consultations until they found out that the land use folks had an issue with the project, and the stop-work order was issued. Development Review Commission Minutes November 1, 2021 Page 6 of 11 Mr. Winstead then turned his focus on the section dealing with the unsafe condition that resulted from the City allowing the additional six feet in height, as it exasperated the condition. He agreed that it became a snowball effect when the baton was passed from the Planning Department to the Building Department. He requested that members really consider this application, stating that he did not think that members would be setting precedent because this dealt with one site and all of the ramifications dealing with that site. Mr. Stamp closed by stating that the DRC could find that the NCS section of the Code did not prohibit a landowner from reconstructing a NCS pursuant to a Building Permit when the landowner did not propose to increase the degree of nonconformity (including the voluntary reconstruction of an NCS), or they could find that the Code encompassed all Building Code requirements/upgrades needed to effectuate the "Change in Roof Pitch." He noted that the Planning Department was now saying that the Building Department could only allow the change in roof pitch if there were no secondary Building Code effects, opining that this almost nullified the entire roof pitch change. Chair Shearer allowed the Applicant additional time to speak on her own behalf. Vanessa Mull Coffen, Applicant, opined that the contention that an error had been made was a little bit cloudy, pointing to the fact that the Building Permit was issued both in 2016 to the prior owner, Steve Masters, and to herself in 2019, but the exact same facts and circumstances occurred to the original builders in 1984 when the special setback was discovered after the Building Permit was issued and the foundation for the house had already been poured. She stated that this had been a historical problem for this property because of the nonconformity and the entire lot being in the special setback area. She informed members that there were special provisions in the code to protect landowners whose entire property fell within a special setback because it rendered the entire property useless and her property had been couched in special provisions since the home was built in 1984 (this being an important history for this case). Speaking on the point of demolition/reconstruction, she stated that the building plans required her to deconstruct the building to reconstruct it and to retain the foundation to preserve the nonconformity of being in a special setback, adding that the RID still applied because of the massive beam that had to flyover and sit on the wall of the accessory structure. At the time she renovated the main home, she relayed that she was instructed to upgrade the basement plumbing to 4-inch PVC pipe, and this required trenching and upgrading the plumbing for not only the primary house but also for the accessory building (a set of building plans was printed and handed to her by City staff at the time she applied for the Building Permit). She indicated that she did not feel that the City did not know what it was doing to such an extent that It produced and signed off on building plans to then say that they had no idea because she was then told to resubmit the RID, that City staff forgot the special setback for South Shore Boulevard, and then when that did not work, they told her that she intentionally damaged her structure (this was why she had to go to LUBA and this was framed as some sort of Code interpretation - the Code states that voluntary reconstruction is not damage). She then opined that the City feeling that precedent would be set if the DRC found in favor was a stretch. Questions of Applicant Commissioner Berardi asked what the structure's intended use was. Mr. Stamp replied that the Applicant intended that it be used as her disabled teenage son's bedroom and would also contain a bathroom. He added that it would require a building permit and that it was currently built to code. Vice Chair Arthur thanked Mr. Stamp and Mr. Winstead for their forceful and persuasive presentation. He requested clarification over whether part of their contention was that the City was estopped from their withdrawal of the permit approval. Mr. Stamp stated that he was not a fan of Development Review Commission Minutes November 1, 2021 Page 7 of 11 using estoppel and it would not be the first avenue he chose, but he was not waiving any rights to future legal claims (citing "Barrett v. Wiggins"). Public Testimony In Support Brett Grantham, 33040 SE Darrow Road, Estacada, OR 97023, informed members that he knew the Applicant and was involved in the transaction over the purchase of her house, and that he was a Certified Master Builder in the State of Oregon. He stated that he agreed with the Applicant's presentation and testimony, and that moving forward should be approved, noting that there had only been two times during his 25 years in building and development that he had seen a Building Permit issued and withdrawn (one of the withdrawals was rescinded and the Permit was reissued). He pointed to OR SB-100 functioning to protect egregious acts such as this. Neither For nor Against Carole Ockert, 910 Cumberland Road, Lake Osweao, OR 97034, Land Use Liaison of the FAN- FHNA, read Exhibit G-0001 into the record (her prepared written testimony). She noted that Jim Boland was the co-author of the statement read, and that they were concerned over the precedent that could be set that night. Chair Shearer closed the Public Testimony portion of the hearing. Applicant Rebuttal Mr. Stamp agreed that all Neighborhood Associations be given notice when dealing with Code interpretation, as a Goal I compliance. Speaking to the 50% or 100% damage noted many times that night, Mr. Stamp pointed to the exception of the definition of"Damage" that read "Damage does not include dismantling of a building or the site feature or portion of a building or site feature in the course of voluntary reconstruction or repairs." He stated that if you were outside of the definition of"Damage," you were outside of that section in its entirety. Mr. Stamp opined that Mr. Boone missed this analysis in April of 2020, when the stop-work order was issued, as Damage was the basis for his legal reasoning. He noted that, in this case, the structure was not 100% removed, as the foundation was kept as the placeholder to retain the nonconformity use rights. Vice Chair Arthur asked what practical impact the adoption of this request would have on the Applicant (whether it meant that she could use the accessory structure as she wished). Mr. Stamp affirmed that they could go ahead with the accessory structure, adding that the Applicant planned to build a carport, which would require the renewal of the RID application. He stated that he would not be opposed to coming back to clean up the accessory use structure with a supplemental land use application, as he was weighing his options for what to do next (the land use permit was subject to the 120-day Rule). He requested that members approve their request to the narrowest degree that they were willing to, and he would write something that was a very narrow precedent regarding the ability to make changes to a structure when changing the roof pitch, stating that he felt this was something members were concerned about. Questions of Staff, revisited Given that there were two new members on the Commission, Chair Shearer asked Mr. Boone to give an overview of a RID and to address the 120-day issue. Mr. Boone explained that a RID was a type of design-based variance having the purpose of allowing modifications to Code requirements, provided that the Applicant could demonstrate that Development Review Commission Minutes November 1, 2021 Page 8 of 11 the design of the building better accomplished the purpose of the standards being varied with regard to relationship to the neighbors, the streetscape, and the building mass (e.g., a 5-foot intrusion into the front yard setback having a slanted front-facing wall versus a straight front-facing wall or having architectural design elements). Speaking to the 120-day issue, Mr. Boone stated that this was not an issue for the DRC. If the 120-day deadline was violated, the first question would be whether it was applicable and if so, the Applicant would have the opportunity to file a petition in Circuit Court to have it reviewed there (meaning that the City Council would make that decision, not the DRC). Mr. Boone relayed that this was somewhat unusual, as City staff would basically be considered the Opponent, and he wished the opportunity to offer a rebuttal, asking for a continuance to do so, if necessary. Chair Shearer asked if there would be a continuance because of the packet that was received that night from the applicant. Mr. Stamp stated that he did not think that was necessary, as there was only one letter included that was not already part of the record, and he could submit that. Mr. Fransted noted that the new letter would be new information that they did not have previously. Chair Shearer asked for confirmation that the Applicant was withdrawing the rest of the information handed in that night. Mr. Stamp affirmed that they were withdrawing that information. Mr. Boone noted that they would need to review the letter to decide what to do with it. Mr. Stamp disagreed with the idea that staff could ask for a continuance. Mr. Boone stated that it would be up to the Chair to rule on that, as any person could request a continuance. Chair Shearer asked Mr. Loos to speak to that question. Mr. Loos agreed that any person, including staff, could request a continuance. Mr. Fransted noted that the letter was from NW Building Forensics regarding the Code, and that it would be nice for the Building Official to review it. Mr. Stamp requested to make a point of order. Chair Shearer ruled that either staff be given the opportunity to review the new evidence in order to submit it to the Commission for their review (which would not happen that night) or the Applicant could withdraw the evidence. Mr. Stamp responded that he would take the evidence back; however, he cited "Multnomah County v. Multnomah County," where staff was found not to have any rights. Chair Shearer then ruled that Mr. Stamp was out-of-order because the issue was over the Commission reviewing the evidence in order to make their decision. Mr. Stamp agreed that he understood Chair Shearer's point. Staff/Opponent Rebuttal Mr. Boone noted the following six points: staff did not mandate that the Applicant change the roof pitch (three options were given); the schematic bubble speaking to "garage walls needing to be rebuilt due to the roof structure" was made by the architect/designer, not by the Planning Department (this showed that it was the original planned design - Mr. Don confirmed that the Building Department did not add those notes, as they did not have digital review capability at the time that plan was reviewed, but they do now - he noted he was not on staff at the time these plans were originally reviewed); it was not the job of the DRC to make policy there that night, rather to interpret was intended by the Code; the foundation was most likely compliant with the setback, as it was at grade-level; there could be some ripple effects when dealing with remodeling structures, as both the Building and Planning Codes must be complied with; his statement was that the City probably improperly issued the Building Permit on the Code interpretation and whether that was negligence or there were additional factors to that, he was not saying that was a confession of judgement; any precedent would only apply to NCSs that the Applicant wished to tear down and justify by putting a roof on; the underlined sentence on "Damage" was not relevant, as it only appeared in section 4, and the request for review fell under section 3 that dealt with the "Change" in roof pitch ("damage" did not appear anywhere in section 3, so would be irrelevant); and the testimony noted over the 1984 agreement would not be an interpretational question nor was it found anywhere in the record. Development Review Commission Minutes November 1, 2021 Page 9 of 11 Questions of Staff, revisited Commissioner Silen asked if there was a Code that applied to an accessory structure rather than the primary structure. Ms. Numanoglu affirmed that the City had accessory structure standards in a couple of different sections of the Code and those standards applied to structures more than 30" above grade, and the issue here and why this was a NCS was that it did not meet the special street setback or the side yard setback. She added that all structures, whether primary or accessory, were subject to a special street setback, and variances are not allowed to a special street setback. Mr. Boone added that section 3 had nothing that stated it only applied to structures that were in the special street setback, so the precedent would be how the Code would be interpreted for all NCSs. Vice Chair Arthur stated that he understood Mr. Boone to say, in regard to precedent, that it would not be limited to just to this special street setback area circumstances going forward. Mr. Boone replied that a property could be nonconforming for other reasons and once it was nonconforming, the question becomes what one could do with that property (here tonight on the "Change" issue). Chair Shearer requested confirmation that they could not draft a Finding that would be narrow enough to only affect this lot. Mr. Boone responded that they heard Mr. Stamp say he could, but when described, it was not narrow enough, adding that he felt he could not draft such a Finding either, as it would apply to any NCS, wherever it dwelt in the City, and that this was not unique to Formal Interpretations, as many come through application reviews. Mr. Boone noted that the uniform fact here was that the structure was nonconforming, and the question was whether you could demolish a structure in order to end up with a different roof pitch. Deliberations Mr. Loos asked if anyone wished that the record be left open to submit additional evidence or if the Applicant wished to submit final written argument. There were no such requests, nor did the Applicant wish to submit final written argument. Mr. Loos instructed Chair Shearer to conduct deliberations. Commissioner Sangrey asked if their responsibility was to discuss and craft a resolution, as they have not been offered assistance by either side, followed by the normal review and confirmation process (at which time the decision becomes final and subject to appeal). Chair Shearer affirmed that both crafting the resolution was their responsibility, and the final decision would be subject to appeal to the City Council and then up to LUBA. Commissioner Berardi acknowledged that there was some ambiguous Code, a very unique nonconforming property, some mistakes made, and some confusion along the way from hearing all of the testimony. He stated that this was a tough decision because he did not want to set precedent and that it involved a unique situation, adding that he would like to hear from the other Commission members. Vice Chair Arthur indicated that he was reluctant to approve the Applicant's request, even if the DRC has the authority to interpret what the Code meant, because he was persuaded that what was decided there that night would only have marginal impact on the Applicant (who has other proceedings, forums, and a prima facie case, and where the City noted that they would respond if found liable). He stated that it seemed that they were being asked to legislate on the questions being presented, and if asked to do so, he would vote "no" on the application. He recommended requesting that the Planning Commission address what adding the 6-foot extension to the roofline meant if the supporting structures could not be replaced. Development Review Commission Minutes November 1, 2021 Page 10 of 11 Commissioner Poinsette stated that he agreed with members' prior opinions. Commissioner Sangrey stated that he could easily separate the two issues: their interpretation of the Code and the, perhaps legitimate and sustainable, grievance on the part of the Applicant who wished to have something done that was not done. He opined that the latter was not the DRC's responsibility or jurisdiction at all. He then indicated that he was focusing on the singular question of whether he saw anything in the Code reviewed there that he would find as unenforceable or ambiguous, stating that he did not, so would be voting "no." In his profession as a civil engineer, he stated that he was confident that the roof that was on the original structure could be supported without having to modify any of the exterior walls of the structure. Retrospect to the question of setting or not setting a precedent, Commissioner Silen opined that they did not have a choice, because either way it would be done. He noted that he was not a civil engineer; however, it seemed to him that modifications in the structure do have sequential or consequential impacts on the structure's walls and foundation. He stated that there was sufficient evidence to convince him that that was the case, and that he would vote in favor of the Applicant. Chair Shearer agreed that the Code was ambiguous or not very well spelled out for what was expected from the Planning side of things. He stated that he felt that raising a roof height 6' opened Pandora's Box as it would change the whole structure, adding that he did not feel comfortable making that decision there that night, as this would be something that would impact the entire city and would need review beyond where they were. He indicated that he would vote "no" against the application; however, that did not mean that he did not feel that the Applicant had not been impacted, because he did. He opined that it was a bigger problem and needed more review then what they could do there that night in two hours. Commissioner Berardi asked if they voted "yes" for the Applicant, would the Planning Commission correct the Code. Vice Chair Arthur replied that he would not imagine the DRC decision would be given high urgency by the Planning Commission, but he could not speak for them. Vice Chair Arthur moved to deny the Applicant's request (LU 21-0016), as submitted. Seconded by Commissioner Sangrey and denied 4:2. Chair Shearer stated that this was a difficult decision for them, and he did not want it to reflect on how they felt about the Applicant, understanding that she was in a tough spot. Mr. Loos instructed staff to return the Written Findings, Conclusion, and Order on Monday, November 15, 2021, at 7:00 PM. SCHEDULE REVIEW AND MANAGEMENT UPDATE Jessica Numanoglu, Planning Manager, updated DRC members on upcoming meetings: November 15, 2021 will have the Findings from this hearing and an application for a new apartment building off of Park View. December has nothing scheduled at this time. ADJOURNMENT Chair Shearer adjourned the meeting at 10:01 PM. Respectfully submitted, /s/ Kat Kluge, Administrative Support Development Review Commission Minutes November 1, 2021 Page 11 of 11