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Agenda Item - 2022-09-20 - Number 4.1 - AP 22-03, Appeal of Tree Removal Application at 529 8th Street 4.1 et'p` 4P COUNCIL REPORT // 40� r o ORE00t.4 Subject: Appeal of the DRC Approval of Type II Tree Removal Application 499-22-000160-TREE (AP 22-03). Meeting Date: September 6, 2022 Staff Member: Daphne Cissell, Associate Planner Report Date: August 26, 2022 Department: Planning and Building Services Action Required Advisory Board/Commission Recommendation ❑X Motion ❑X Approval ❑X Public Hearing ❑ Denial ❑ Ordinance ❑ None Forwarded ❑ Resolution ❑ Not Applicable ❑ Information Only Comments: ❑ Council Direction ❑ Consent Agenda Staff Recommendation: Per Development Review Commission ("DRC" or "Commission") decision, approval of Tree Removal Application 499-22-000160-TREE. Recommended Language for Motion (Two Options, depending on whether or not the Council agrees with the Commission's findings): 1. Tentatively affirm the Commission's decision to approve the tree removal application 499-22-000160-TREE, with conditions of approval; or, 2. Tentatively reverse the Commission's decision and deny the tree removal application 499-22-000160-TREE. Any of the above motions should include: "and direct staff to present findings, conclusions and an order finalizing the Council's tentative decision on September 20, 2022." Issue before Council (Highlight Policy Question): ❑Council Goals/Priorities EAdopted Master Plan(s) ❑S Not Applicable Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 2 BACKGROUND Applicant/owner Renaissance Custom Homes applied to remove five trees to construct a new single-family house, garage and driveway. Staff tentatively approved the removal of the five trees on May 13, 2022. The First Addition Neighbors— Forest Hills Neighborhood Association (FAN) timely filed a request for a hearing (Exhibit A-001). The Commission held a public hearing on June 20, 2022 and tentatively approved the application. The Commission's Findings, Conclusion and Order was approved on July 6, 2022 (Exhibit B-001). On July 12, 2022, FAN filed a Notice of Intent to Appeal the Commission's decision (Exhibit A- 002). COUNCIL HEARING PROCEDURE Pursuant to LOC 55.02.085(4), the hearing before City Council shall be on the record established before the Commission and only persons who appeared before the Commission orally or in writing may testify. The record consists of the Commission's findings, conclusions and order, minutes of the Commission meetings, and the record before the Commission, including the application materials, staff reports, and testimony. The entire record can be viewed and downloaded at the project webpage/ Public Record of File, or at www.lakeoswego.city (enter "AP 22-03" in the search box at the top right of the home page). DISCUSSION Approval or denial of the application is based on the criteria and the evidence in the record: if the evidence in the record shows that the criteria are met, the application must be approved; if the evidence is insufficient to show that the criteria are met, the application must be denied. The Commission's Findings, Conclusion and Order (Exhibit B-001) and incorporated June 10, 2022, Staff Report (Exhibit D-001), provides detailed findings for each of the applicable approval criteria. Appealed Issue The appellant raises the following issue for the City Council's consideration in the Notice of Intent to Appeal (Exhibit A-002). (The appellant's argument has been copied from the Notice of Intent to Appeal and provided below in bold italics. Staff's response, including the Commission's findings, follows.) "We are appealing the DRC's decision to City Council as The Applicant,per the Tree Code, 55.02.080(3)[exceptions] "b. Alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone",failed to prove that no reasonable alternatives exist. We believe that reasonable alternatives exist to allow the property to be used as permitted in the zone." Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 3 Staff Response: Criterion 3; Exception b. If a tree does not meet the five subcriteria of Criterion 3 [LOC 55.02.080], its removal may still be allowed if Exception A or B to Criterion 3 is met. The Commission found that not all of the five subcriteria were met for all of the five trees (§a — "significant tree"; §b—alterations to continuity of skyline; and §e—more than 50% of a stand; see DRC Findings, Exhibit B-001, pgs. 5-6), and thus, the removal of all five trees was examined by the Commission under Exception B ("no reasonable alternatives exists") to Criterion 3: "[Criterion 3] is not applicable when: b. Alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. In making this determination, the City may consider alternative site plans or placement of structures (development purpose) or alternative landscaping designs (outgrown landscape area; landscape plan) that would lessen the impact on trees, so long as the alternatives continue to comply with other provisions of the Lake Oswego Code." In this Exception, the question is whether there are reasonable site plans or structure placement that would lessen the impact on trees so long as the alternative would "allow the property to be used as permitted in the zone" and comply with other Code requirements. The Council has previously held that consideration of"alternatives to the tree removal and that no reasonable alternative exists to allow the property to be used as permitted in the zone" does not require the applicant to consider seeking a variance to land use standards or to reduce the development to less than permitted in the zone. Renaissance Custom Homes, AP 19-07, Council Findings, pg. 2; Renaissance Custom Homes, AP 18-02, Council Findings, pg. 4. Relocation: Commenters testified that they did not agree that the applicant explored alternative structural designs or layouts that would allow for more tree retention. Staff responds that: • The Commission reviewed the prior iterations of the design and found that the various designs in the record submitted by the applicant demonstrated that no alternate position of the building footprint would reasonably allow tree retention and still allow development permitted by the zone. (DRC Findings, Exhibit B-001, pgs. 6-8). See also Exhibit F-001, pgs. 14 and 20. • Site plans submitted into evidence by opponents at the DRC hearing did not take into consideration property lines and zone setbacks (Exhibit G-347, with Staff notation below). Exhibit G-347 shows plans with two dwelling types: two detached dwellings and two zero lot line dwellings (zero lot line dwellings were not a dwelling type proposed by the applicant; see Reduction of Dwelling Footprint discussion, below), and shows the property line running through a portion of one the dwellings in both cases, which is not Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 4 permitted. Thus, that evidence is not sufficient to require the Applicant to respond to those proposed alternatives as suggested "reasonable alternatives" not considered. Exhibit G-347,Alternative Site Plan 1:Zero lot line dwellings. One dwelling crosses lot line and required setbacks are not met. / d ii I+ I I I I/ 'IP9r ari ! 5,+ p i rl f+x = i ti�8�, , f l ; [aIMGAN Ho" ) Property line I /: I s : ag.2.Li lif _ i"rf—r. almswazt . ! /p�yTRp�ITICNAt] I--'—''' .? I „ { I Jr S Exhibit G-347,Alternative Site Plan 2: Detached dwellings. One dwelling crosses lot line and required setbacks are not met. • 111 " d J , M li 77:1-777 / A,1 l 1E/:,::,,: _ it am—— 1 __. . . r ,2::: 4 ' 7 ' r� �[ __ ncoour Property line _fL , c7— I na[sN li 5 Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 5 Constructability and Functionality of the Dwelling: Commenters testified that an alternative could be to remove some square footage away from tree roots and append that same amount of square footage elsewhere on the dwelling. The Commission found that: • This testimony did not include a "constructability" analysis with resulting floor plan to show how the alternative was functionally reasonable from a construction or market acceptance. • Any reasonable alternative must retain the functionality of proposed development; in other words, merely moving some square footage around that does not provide for a functional dwelling use is not a reasonable alternative (DRC Findings, Exhibit B-001, pg. 7-8). Absent some evidence showing feasibility of constructability and functionality, the Commission found that the suggested alternative of removing square footage in one location and appending the same amount of square footage at another location is not sufficient to show a "reasonable alternative" not considered. Reduction of Dwelling Footprint: Commenters contended that reasonable alternatives were not considered that would reduce the dwelling footprint by a number of means, e.g., elimination of one dwelling unit between the two sites (with AP 22-04), reduction of the size of the dwelling or of the basement (including eliminating the basement), changing the type of dwellings from two detached dwellings (AP 22- 03 and AP 22-04) to two zero lot line dwellings, or that variances should be applied for. The Commission found that: • The Commission considered whether a reduction in building footprint or an alternate house plan would be a reasonable alternative. The Commission found it is not a reasonable alternative to require the applicant to reduce the house size or density allowed by the zone, construct a different type of permitted dwelling option (e.g., a zero lot line dwelling) on the two lots, or seek a variance (DRC Findings, Exhibit B-001, pg. 7). Conclusion: The Commission found that the applicant had met its burden of showing that the requirements for Exception b to Criterion 3 were met—that alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. Accordingly, the Commission, having found that Criterion 3 did not apply due to the exception, that Criteria 1, 2, and 4 were met, and that removal of the trees is not contrary to Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 6 another section of the Code [LOC 55.02.080(5)], that the tree removal application should be approved. RECOMMENDATION Staff recommends approval of the Tree Removal Application 499-22-000160-TREE. EXHIBITS (Use the link below to visit the Public Records webpage, which contains all the Exhibits for AP 22-03). https://www.ci.oswego.or.us/WebLink/Browse.aspx?id=2012054&repo=CitvOfLakeOswego A. NOTICE OF INTENT TO APPEAL A-001 Request for Appeal 499-22-000160-TREE, received May 18, 2022 A-002 FAN/FH NA Notice of Intent to Appeal, received July 12, 2022 B. FINDINGS, CONCLUSIONS, AND ORDER B-001 Development Review Commission Findings, Conclusions, and Order, dated July 6, 2022 C. MINUTES OF THE DEVELOPMENT REVIEW COMMISSION HEARINGS C-001 Minutes from June 20, 2022 Development Review Commission meeting C-002 Minutes from July 6, 2022 Development Review Commission meeting D. STAFF REPORTS D-001 AP 22-03 Staff Report, dated June 10, 2022 D-002 AP 22-03 Staff Memo, dated June 20, 2022 E. GRAPHICS/PLANS E-001 Vicinity Map E-002 Existing Features Map E-003 Site Map with Contours E-004 Staff PowerPoint Presentation, June 20, 2022 F. WRITTEN MATERIALS F-001 499-22-000160-TREE Type II Application Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 7 F-002 Summary of Staff Findings 499-22-000160-TREE F-003 Notice of Tentative Staff Decision 499-22-000160-TREE F-004 533 8th St. Legal Lot Determination, September 23, 2021 F-005 Parks and Recreation Park Acquisition Policy F-006 Supplemental Information from Applicant Representative, Jordan Ramis, dated June 17, 2022 F-007 DLCD Enforcement Update, dated August 27, 2020 G. LETTERS Neither For Nor Against (G-001-099) None Support (G100-199) G-100 Hutchinson Comment, received February 14, 2022 G-101 Taylor Comment, received February 25, 2022 Opposition (G200+) G-200 Rudawitz Comments, received February 1, 2022 G-201 Rudawitz Comments, received February 12, 2022 G-202 Hines Comments, received February 13, 2022 G-203 Waterbury Comments, received February 13, 2022 G-204 Anglin Comments, received February 13, 2022 G-205 Lindeman Comments, received February 13, 2022 G-206 Frazier Comments, received February 13, 2022 G-207 Dunn Comments, received February 13, 2022 G-208 Witmer Comments, received February 13, 2022 G-209 Gaudin Comments, received February 14, 2022 G-210 Kole Comments, received February 14, 2022 G-211 Osborne Comments, received February 14, 2022 G-212 Boom Comments, received February 14, 2022 G-213 Reed Comments, received February 14, 2022 G-214 Sabo Comments, received February 14, 2022 G-215 Sheth Comments, received February 14, 2022 G-216 Hanavan Comments, received February 14, 2022 G-217 Klein Comments, received February 14, 2022 G-218 Weiglin Comments, received February 14, 2022 G-219 Seabright, Mary Comments, received February 14, 2022 G-220 Seabright, Mark Comments, received February 14, 2022 G-221 Chou Comments, received February 14, 2022 G-222 Brawner Comments, received February 14, 2022 G-223 Gibson Comments, received February 14, 2022 Respect. 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Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 8 G-224 Froming Comments, received February 14, 2022 G-225 Black Comments, received February 14, 2022 G-226 Fromer Comments, received February 14, 2022 G-227 Botthof Comments, received February 14, 2022 G-228 Large Comments, received February 14, 2022 G-229 Gaudin Comments, received February 14, 2022 G-230 Black Comments, received February 14, 2022 G-231 Meub Comments, received February 14, 2022 G-232 Bocci Comments, received February 14, 2022 G-233 Reilly Comments, received February 14, 2022 G-234 Wurster Comments, received February 14, 2022 G-235 Ogburn Comments, received February 15, 2022 G-236 Waterman Comments, received February 15, 2022 G-237 Gustafson Comments, received February 15, 2022 G-238 Holbrook Comments, received February 15, 2022 G-239 Huntsinger Comments, received February 15, 2022 G-240 Fortner Comments, received February 15, 2022 G-241 Sustrik Comments, received February 15, 2022 G-242 Zubrinsky Comments, received February 15, 2022 G-243 Bassford Comments, received February 15, 2022 G-244 Waites Comments, received February 15, 2022 G-245 Lavios Comments, received February 15, 2022 G-246 Conklin Comments, received February 15, 2022 G-247 Lesage Comments, received February 15, 2022 G-248 Mandelblatt Comments, received February 15, 2022 G-249 Kitzing Comments, received February 15, 2022 G-250 Gardner Comments, received February 15, 2022 G-251 Miller, Alyson Comments, received February 15, 2022 G-252 Kaptur Comments, received February 15, 2022 G-253 Browne Comments, received February 15, 2022 G-254 Puhlman Comments, received February 16, 2022 G-255 Wosko Comments, received February 16, 2022 G-256 Benn Comments, received February 16, 2022 G-257 Schinn Comments, received February 16, 2022 G-258 Moore Comments, received February 16, 2022 G-259 Saporito Comments, received February 16, 2022 G-260 Ellison Comments, received February 16, 2022 G-261 Kemper Comments, received February 16, 2022 G-262 Weber Comments, received February 16, 2022 G-263 Bechtold-Yoo Comments, received February 16, 2022 G-264 Toll, Emily Comments, received February 16, 2022 G-265 Wiens Comments, received February 16, 2022 G-266 Lightcap Comments, received February 16, 2022 G-267 Geshel, Darcy Comments, received February 16, 2022 Respect. 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Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 9 G-268 Stellway Comments, received February 16, 2022 G-269 Robinson Comments, received February 16, 2022 G-270 Rochelle Comments, received February 16, 2022 G-271 Wosko Comments, received February 16, 2022 G-272 Miller, Mary Ann Comments, received February 16, 2022 G-273 Eckmann, Lois Comments, received February 16, 2022 G-274 Kraemer Comments, received February 16, 2022 G-275 Eckmann, Stuart Comments, received February 16, 2022 G-276 Adriano Comments, received February 16, 2022 G-277 Geshel, Greg Comments, received February 16, 2022 G-278 Cabral Schinn Comments, received February 16, 2022 G-279 FAN-NA Comments, received February 16, 2022 G-280 Mikulka Comments, received February 16, 2022 G-281 Yoo Comments, received February 16, 2022 G-282 Anglin, Melanie Comments, received February 16, 2022 G-283 Meckel Comments, received February 16, 2022 G-284 Haber and Pleasants Comments, received February 16, 2022 G-285 Ehrenfreund and Cain Comments, received February 16, 2022 G-286 Bender-Baird Comments, received February 16, 2022 G-287 Hupala and Moriyash Comments, received February 16, 2022 G-288 Toll, Peter Comments, received February 16, 2022 G-289 Ortega Comments, received February 16, 2022 G-290 Buscalia Comments, received February 16, 2022 G-291 Petition 1 Comments, received February 16, 2022 G-292 Petition 2 Comments, received February 16, 2022 G-293 Petition 3 Comments, received February 16, 2022 G-294 Petition 4 Comments, received February 16, 2022 G-295 Petition 5 Comments, received February 16, 2022 G-296 Petition 6 Comments, received February 16, 2022 G-297 Rolufs Comments, received February 17, 2022 G-298 Moore Comments, received February 17, 2022 G-299 Weiglin Comments, received February 17, 2022 G-300 Johnson Comments, received February 21, 2022 G-301 Bennett Comments, received March 29, 2022 G-302 Weber Comments, received April 28, 2022 G-303 Waterbury Comments, received May 1, 2022 G-304 Anglin, Melanie Comments, received May 1, 2022 G-305 Hugos Comments, received May 1, 2022 G-306 Kraemer Comments, received May 3, 2022 G-307 LeSage Comments, received May 3, 2022 G-308 LeSage Comments, received May 4, 2022 G-309 Boom Comments, received May 5, 2022 G-310 Rudawitz Comments, received May 5, 2022 G-311 Osborne Comments, received May 5, 2022 Respect. 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Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 10 G-312 Seabright, Mark Comments, received May 6, 2022 G-313 Mikulka Comments, received May 6, 2022 G-314 Seabright, Mary Comments, received May 6, 2022 G-315 Waterman Comments, received May 6, 2022 G-316 Meckel Comments, received May 6, 2022 G-317 Moore Comments, received May 6, 2022 G-318 Eckman, Lois Comments, received May 6, 2022 G-319 Anglin Comments, received May 6, 2022 G-320 FAN-NA Comments, received May 6, 2022 G-321 Bender-Baird Comments, received May 6, 2022 G-322 Eckmann, Stuart Comments, received May 6, 2022 G-323 Petition Comments, received May 6, 2022 G-324 Kohlhoff Comments, received June 10, 2022 G-325 Johnson Comments, received June 17, 2022 G-326 Puhlman Comments, received June 18, 2022 G-327 Steel Comments, received June 18, 2022 G-328 Gustafson, Sharon Comments, received June 19, 2022 G-329 Wosko Comments, received June 19, 2022 G-330 Milkulka Comments, received June 20, 2022 G-331 Ayers Comments, received June 20, 2022 G-332 Savage Comments, received June 20, 2022 G-333 Lesage, Noreen Comments, received June 20, 2022 G-334 Moore Comments, received June 20, 2022 G-335 Wiens Comments, received June 20, 2022 G-336 Wiles Comments, received June 20, 2022 G-337 Ogburn Comments, received June 20, 2022 G-338 Czerniejewski Comments, received June 20, 2022 G-339 Manfield Comments, received June 20, 2022 G-340 Waterbury Comments, received June 20, 2022 (Comment appears to be duplicate of G-203) G-341 Silber Comments, received June 20, 2022 G-342 Bender-Baird Comments, received June 20, 2022 G-343 Presentation from Cabral-Schinn Submitted at DRC Hearing G-344 Presentation from Anglin Submitted at DRC Hearing G-345 Photos from Meckel Submitted at DRC Hearing G-346 Kohlhoff Comments, received August 29, 2022 The City Staff Report, DRC Findings, and all exhibits are available at the above address and online at www.lakeoswego.citv (type AP 22-03 in the search box at the top of the screen for the Public Record of File). Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY c§t'p` COUNCIL REPORT C 0 ORE00t.4 Subject: Appeal of the DRC Approval of Type II Tree Removal Application 499-22-000158-TREE (AP 22-04). Meeting Date: September 6, 2022 Staff Member: Daphne Cissell, Associate Planner Report Date: August 26, 2022 Department: Planning and Building Services Action Required Advisory Board/Commission Recommendation ❑X Motion ❑X Approval ❑X Public Hearing ❑ Denial ❑ Ordinance ❑ None Forwarded ❑ Resolution ❑ Not Applicable ❑ Information Only Comments: ❑ Council Direction ❑ Consent Agenda Staff Recommendation: Per the Development Review Commission ("DRC" or "Commission") decision, approval of Tree Removal Application 499-22-000158-TREE. Recommended Language for Motion (Two Options, depending on whether or not the Council agrees with the Commission's findings): 1. Tentatively affirm the Commission's decision to approve the tree removal application 499-22-000158-TREE, with conditions of approval; or, 2. Tentatively reverse the Commission's decision and deny the tree removal application 499-22-000158-TREE. Any of the above motions should include: "and direct staff to present findings, conclusions and an order finalizing the Council's tentative decision on September 20, 2022." Issue before Council (Highlight Policy Question): ❑Council Goals/Priorities ❑Adopted Master Plan(s) ❑S Not Applicable Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 2 BACKGROUND Applicant/owner Renaissance Custom Homes applied to remove five trees to construct a new single-family house, garage and driveway. Staff tentatively approved the removal of the five trees on May 13, 2022. The First Addition Neighbors— Forest Hills Neighborhood Association (FAN) timely filed a request for a hearing (Exhibit A-001). The Commission held a public hearing on June 20, 2022 and tentatively approved the application. The Commission's Findings, Conclusion and Order was approved on July 6, 2022 (Exhibit B-001). On July 12, 2022, FAN filed a Notice of Intent to Appeal of the Commission's decision (Exhibit A- 002). COUNCIL HEARING PROCEDURE Pursuant to LOC 55.02.085(4), the hearing before City Council shall be on the record established before the Commission and only persons who appeared before the Commission orally or in writing may testify. The record consists of the Commission's findings, conclusions and order, minutes of the Commission meetings, and the record before the Commission, including the application materials, staff reports, and testimony. The entire record can be viewed and downloaded at the project webpage/ Public Record of File, or at www.lakeoswego.city (enter "AP 22-04" in the search box at the top right of the home page). DISCUSSION Approval or denial of the application is based on the criteria and the evidence in the record: if the evidence in the record shows that the criteria are met, the application must be approved; if the evidence is insufficient to show that the criteria are met, the application must be denied. The Commission's Findings, Conclusion and Order (Exhibit B-001) and incorporated June 10, 2022, Staff Report (Exhibit D-001), provides detailed findings for each of the applicable approval criteria. Appealed Issue The appellant raises the following issue for the City Council's consideration in the Notice of Intent to Appeal (Exhibit A-002). (The appellant's argument has been copied from the Notice of Intent to Appeal and provided below in bold italics. Staff's response, including the Commission's findings, follows.) "We are appealing the DRC's decision to City Council as The Applicant,per the Tree Code, 55.02.080(3)[exceptions] "b. Alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone",failed to prove that no reasonable alternatives exist. We believe that reasonable alternatives exist to allow the property to be used as permitted in the zone." Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 3 Staff Response: Criterion 3; Exception b. If a tree does not meet the five subcriteria of Criterion 3 [LOC 55.02.080], its removal may still be allowed if Exception A or B to Criterion 3 is met. The Commission found that not all of the five subcriteria were met for all of the five trees (§a — "significant tree"; §b—alterations to continuity of skyline; and §e—more than 50% of a stand; see DRC Findings, Exhibit B-001, pgs. 5-6), and thus, the removal of all five trees was examined by the Commission under Exception B ("no reasonable alternatives exists") to Criterion 3: "[Criterion 3] is not applicable when: b. Alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. In making this determination, the City may consider alternative site plans or placement of structures (development purpose) or alternative landscaping designs (outgrown landscape area; landscape plan) that would lessen the impact on trees, so long as the alternatives continue to comply with other provisions of the Lake Oswego Code." In this Exception, the question is whether there are reasonable site plans or structure placement that would lessen the impact on trees so long as the alternative would "allow the property to be used as permitted in the zone" and comply with other Code requirements. The Council has previously held that consideration of"alternatives to the tree removal and that no reasonable alternative exists to allow the property to be used as permitted in the zone" does not require the applicant to consider seeking a variance to land use standards or to reduce the development to less than permitted in the zone. Renaissance Custom Homes, AP 19-07, Council Findings, pg. 2; Renaissance Custom Homes, AP 18-02, Council Findings, pg. 4. Relocation: Commenters testified that they did not agree that the applicant explored alternative structural designs or layouts that would allow for more tree retention. Staff responds that: • The Commission reviewed the prior iterations of the design and found that the various designs in the record submitted by the applicant demonstrated that no alternate position of the building footprint would reasonably allow tree retention and still allow development permitted by the zone. (DRC Findings, Exhibit B-001, pgs. 6-8). See also Exhibit F-001, pgs. 18 and 24. • Site plans submitted into evidence by opponents at the DRC hearing did not take into consideration property lines and zone setbacks (Exhibit G-347, with Staff notation below). Exhibit G-347 shows plans with two dwelling types: two detached dwellings and two zero lot line dwellings (zero lot line dwellings were not a dwelling type proposed by the applicant; see Reduction of Dwelling Footprint discussion, below), and shows the property line running through a portion of one the dwellings in both cases, which is not Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 4 permitted. Thus, that evidence is not sufficient to require the Applicant to respond to those proposed alternatives as suggested "reasonable alternatives" not considered. Exhibit G-347,Alternative Site Plan 1:Zero lot line dwellings. One dwelling crosses lot line and required setbacks are not met. ,il ;7, li :;:, � SIN STREET { LJ u voiNcAN MODERN) Property line I iii r r NI STN STREET 111, I I 1 NpRT1 •• • 5 Exhibit G-347,Alternative Site Plan 2: Detached dwellings. One dwelling crosses lot line and required setbacks are not met. r" ir' ,714/ ' , . „ .-ff'---- i I f ii x --- arN STREET il z i n N McvERsi Property line mlivAlk • i.,._i_,_,,,H 1 Zr."-T l'ili ! 7-: I 74 r +' ,. Nam NO I1 $ Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 5 Constructability and Functionality of the Dwelling: Commenters testified that an alternative could be to remove some square footage away from tree roots and append that same amount of square footage elsewhere on the dwelling. The Commission found that: • This testimony did not include a "constructability" analysis with resulting floor plan to show how the alternative was functionally reasonable from a construction or market acceptance. • Any reasonable alternative must retain the functionality of proposed development; in other words, merely moving some square footage around that does not provide for a functional dwelling use is not a reasonable alternative (DRC Findings, Exhibit B-001, pg. 7-8). Absent some evidence showing feasibility of constructability and functionality, the Commission found that the suggested alternative of removing square footage in one location and appending the same amount of square footage at another location is not sufficient to show a "reasonable alternative" not considered. Reduction of Dwelling Footprint: Commenters contended that reasonable alternatives were not considered that would reduce the dwelling footprint by a number of means, e.g., elimination of one dwelling unit between the two sites (with AP 22-03), reduction of the size of the dwelling or of the basement (including eliminating the basement), changing the type of dwellings from two detached dwellings (AP 22- 03 and AP 22-04) to two zero lot line dwellings, or that variances should be applied for. The Commission found that: • The Commission considered whether a reduction in building footprint or an alternate house plan would be a reasonable alternative. The Commission found it is not a reasonable alternative to require the applicant to reduce the house size or density allowed by the zone, construct a different type of permitted dwelling option (e.g., a zero lot line dwelling) on the two lots, or seek a variance (DRC Findings, Exhibit B-001, pg. 7). Conclusion: The Commission found that the applicant had met its burden of showing that the requirements for Exception b to Criterion 3 were met—that alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. Accordingly, the Commission, having found that Criterion 3 did not apply due to the exception, that Criteria 1, 2, and 4 were met, and that removal of the trees is not contrary to Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 6 another section of the Code [LOC 55.02.080(5)], that the tree removal application should be approved. RECOMMENDATION Staff recommends approval of Tree Removal Application 499-22-000158-TREE. EXHIBITS (Use the link below to visit the Public Records webpage, which contains all the Exhibits for AP 22-04). https://www.ci.oswego.or.us/WebLink/Browse.aspx?id=2012069&repo=CitvOfLakeOswego A. NOTICE OF INTENT TO APPEAL A-001 Request for Appeal 499-22-000158-TREE, received May 18, 2022 A-002 FAN/FH NA Notice of Intent to Appeal, received July 12, 2022 B. FINDINGS, CONCLUSIONS, AND ORDER B-001 Development Review Commission Findings, Conclusions, and Order, dated July 6, 2022 C. MINUTES OF THE DEVELOPMENT REVIEW COMMISSION HEARINGS C-001 Minutes from June 20, 2022 Development Review Commission meeting C-002 Minutes from July 6, 2022 Development Review Commission meeting D. STAFF REPORTS D-001 AP 22-04 Staff Report, dated June 10, 2022 D-002 AP 22-04 Staff Memo, dated June 20, 2022 E. GRAPHICS/PLANS E-001 Vicinity Map E-002 Existing Features Map E-003 Site Map with Contours E-004 Staff PowerPoint Presentation, June 20, 2022 F. WRITTEN MATERIALS F-001 499-22-000158-TREE Type II Application Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 7 F-002 Summary of Staff Findings 499-22-000158-TREE F-003 Notice of Tentative Staff Decision 499-22-000158-TREE F-004 533 8th St. Legal Lot Determination, September 23, 2021 F-005 Parks and Recreation Park Acquisition Policy F-006 Supplemental Information from Applicant Representative, Jordan Ramis, dated June 17, 2022 F-007 DLCD Enforcement Update, dated August 27, 2020 G. LETTERS Neither For Nor Against (G-001-099) None Support (G100-199) G-100 Hutchinson Comment, received February 14, 2022 G-101 Taylor Comment, received February 25, 2022 Opposition (G200+) G-200 Rudawitz Comments, received February 4, 2022 G-201 Kitzing Comments, received February 4, 2022 G-202 Rudawitz Comments, received February 12, 2022 G-203 Waterbury Comments, received February 13, 2022 G-204 Anglin Comments, received February 13, 2022 G-205 Witmer Comments, received February 13, 2022 G-206 Lindeman Comments, received February 13, 2022 G-207 Frazier Comments, received February 13, 2022 G-208 Dunn Comments, received February 13, 2022 G-209 Burson Comments, received February 13, 2022 G-210 Weiglin Comments, received February 14, 2022 G-211 Seabright, Mary Comments, received February 14, 2022 G-212 Seabright, Mark Comments, received February 14, 2022 G-213 Terpstra Comments, received February 14, 2022 G-214 Kole Comments, received February 14, 2022 G-215 Bocci Comments, received February 14, 2022 G-216 Gaudin Comments, received February 14, 2022 G-217 Sheth Comments, received February 14, 2022 G-218 Reilly Comments, received February 14, 2022 G-219 Boom Comments, received February 14, 2022 G-220 Osborne Comments, received February 14, 2022 G-221 Wurster Comments, received February 14, 2022 G-222 Reed Comments, received February 14, 2022 G-223 Sabo Comments, received February 14, 2022 Respect. 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Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 8 G-224 Hanavan Comments, received February 14, 2022 G-225 Bednark Comments, received February 14, 2022 G-226 Klein Comments, received February 14, 2022 G-227 Brawner Comments, received February 14, 2022 G-228 Gibson Comments, received February 14, 2022 G-229 Froming Comments, received February 14, 2022 G-230 Black Comments, received February 14, 2022 G-231 Froming Comments, received February 14, 2022 G-232 Large Comments, received February 14, 2022 G-233 Meub Comments, received February 14, 2022 G-234 Botthof Comments, received February 14, 2022 G-235 Chou Comments, received February 15, 2022 G-236 Miller Comments, received February 15, 2022 G-237 Ogburn Comments, received February 15, 2022 G-238 Waterman Comments, received February 15, 2022 G-239 Gustafson Comments, received February 15, 2022 G-240 Kaptur Comments, received February 15, 2022 G-241 Tandberg Comments, received February 15, 2022 G-242 Knowles Comments, received February 15, 2022 G-243 Holbrook Comments, received February 15, 2022 G-244 Huntsinger Comments, received February 15, 2022 G-245 Fortner Comments, received February 15, 2022 G-246 Sustrik Comments, received February 15, 2022 G-247 Zubrinsky Comments, received February 15, 2022 G-248 Bassford Comments, received February 15, 2022 G-249 Waites Comments, received February 15, 2022 G-250 Mandelblatt Comments, received February 15, 2022 G-251 Kitzing Comments, received February 15, 2022 G-252 Gardner Comments, received February 15, 2022 G-253 Browne Comments, received February 15, 2022 G-254 Lesage Comments, received February 15, 2022 G-255 Lavios Comments, received February 15, 2022 G-256 Puhlman Comments, received February 16, 2022 G-257 Kapowich Comments, received February 16, 2022 G-258 Kemper Comments, received February 16, 2022 G-259 Lorbach Comments, received February 16, 2022 G-260 Weber Comments, received February 16, 2022 G-261 Bechtold-Yoo Comments, received February 16, 2022 G-262 Toll, Emily Comments, received February 16, 2022 G-263 Lightcap Comments, received February 16, 2022 G-264 Wiens Comments, received February 16, 2022 G-265 Geshel, Darcy Comments, received February 16, 2022 G-266 Ellison Comments, received February 16, 2022 G-267 Stellway Comments, received February 16, 2022 Respect. 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Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 9 G-268 Robinson Comments, received February 16, 2022 G-269 Yoo Comments, received February 16, 2022 G-270 Rochelle Comments, received February 16, 2022 G-271 Wosko Comments, received February 16, 2022 G-272 Miller Comments, received February 16, 2022 G-273 Eckmann, Lois Comments, received February 16, 2022 G-274 Eckmann, Stuart Comments, received February 16, 2022 G-275 Kraemer Comments, received February 16, 2022 G-276 Adriano Comments, received February 16, 2022 G-277 Geshel, Greg Comments, received February 16, 2022 G-278 Cabral Schinn Comments, received February 16, 2022 G-279 FAN-NA Comments, received February 16, 2022 G-280 Mikulka Comments, received February 16, 2022 G-281 Anglin Comments, received February 16, 2022 G-282 Meckel Comments, received February 16, 2022 G-283 Haber and Pleasants Comments, received February 16, 2022 G-284 Ehrenfreund and Cain Comments, received February 16, 2022 G-285 Bauer Comments, received February 16, 2022 G-286 Bender-Baird Comments, received February 16, 2022 G-287 Hupala and Moriyash Comments, received February 16, 2022 G-288 Toll, Peter Comments, received February 16, 2022 G-289 Ortega Comments, received February 16, 2022 G-290 Buscalia Comments, received February 16, 2022 G-291 Saporito Comments, received February 16, 2022 G-292 Benn Comments, received February 16, 2022 G-293 Petition_1 Comments, received February 16, 2022 G-294 Petition_2 Comments, received February 16, 2022 G-295 Petition_3 Comments, received February 16, 2022 G-296 Petition_4 Comments, received February 16, 2022 G-297 Petition_5 Comments, received February 16, 2022 G-298 Petition_6 Comments, received February 16, 2022 G-299 Rolufs Comments, received February 17, 2022 G-300 Moore Comments, received February 17, 2022 G-301 Weiglin Comments, received February 17, 2022 G-302 Johnson Comments, received February 21, 2022 G-303 Bennett Comments, received March 29, 2022 G-304 Weber Comments, received April 28, 2022 G-305 Waterbury Comments, received May 1, 2022 G-306 Anglin Comments, received May 1, 2022 G-307 Hugos Comments, received May 1, 2022 G-308 Kraemer Comments, received May 3, 2022 G-309 LeSage Comments, received May 3, 2022 G-310 LeSage Comments, received May 4, 2022 G-311 Rudawitz Comments, received May 5, 2022 Respect. 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Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY Page 10 G-312 Boom Comments, received May 5, 2022 G-313 Osborne Comments, received May 5, 2022 G-314 Anglin, Maya Comments, received May 6, 2022 G-315 Mikulka Comments, received May 6, 2022 G-316 Waterman Comments, received May 6, 2022 G-317 Moore Comments, received May 6, 2022 G-318 FAN-NA Comments, received May 6, 2022 G-319 Bender-Baird Comments, received May 6, 2022 G-320 Meckel Comments, received May 6, 2022 G-321 Eckman, Stuart Comments, received May 6, 2022 G-322 Eckman, Lois Comments, received May 6, 2022 G-323 Seabright, Mark Comments, received May 6, 2022 G-324 Seabright, Mary Comments, received May 6, 2022 G-325 Petition Comments, received May 6, 2022 G-326 Kohlhoff Comments, received June 10, 2022 G-327 Johnson Comments, received June 17, 2022 G-328 Puhlman Comments, received June 18, 2022 G-329 Steel Comments, received June 18, 2022 G-330 Gustafson, Sharon Comments, received June 19, 2022 G-331 Wosko Comments, received June 19, 2022 G-332 Lesage, Nick Comments, received June 19, 2022 G-333 Milkulka Comments, received June 20, 2022 G-334 Ayers Comments, received June 20, 2022 G-335 Savage Comments, received June 20, 2022 G-336 Lesage, Noreen Comments, received June 20, 2022 G-337 Moore Comments, received June 20, 2022 G-338 Wiens Comments, received June 20, 2022 G-339 Wiles Comments, received June 20, 2022 G-340 Ogburn Comments, received June 20, 2022 G-341 Czerniejewski Comments, received June 20, 2022 G-342 Manfield Comments, received June 20, 2022 G-343 Waterbury Comments, received June 20, 2022 (Comment appears to be duplicate of G-203) G-344 Silber Comments, received June 20, 2022 G-345 Bender-Baird Comments, received June 20, 2022 G-346 Presentation from Cabral-Schinn Submitted at DRC Hearing G-347 Presentation from Anglin Submitted at DRC Hearing G-348 Photos from Meckel Submitted at DRC Hearing G-349 Kohlhoff Comments, received August 29, 2022 The City Staff Report, DRC Findings, and all exhibits are available at the above address and online at www.lakeoswego.citv (type AP 22-04 in the search box at the top of the screen for the Public Record of File). Respect. Excellence. Trust. Service. 503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY