Agenda Item - 2022-11-14 - Number 4.1 - Appeal of the DRC's Approval of LU 22-0041 / AP 22-05 4.1
COUNCIL REPORT
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Subject: A Public Hearing on an appeal of the DRC decision to approve a Development
Review Permit, Minor Variance and Design Variances for additions to an existing dwelling at
520 5th Street (LU 22-0041/AP 22-05).
Meeting Date: November 14, 2022 Staff Member: Evan Fransted, Senior Planner
Report Date: November 4, 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: Uphold the Development Review Commission's (Commission)
decision to approve LU 22-0041.
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 LU 22-0041, with conditions
of approval; or,
2. Tentatively reverse the Commission's decision and deny LU 22-0041.
Any of the above motions should include: "and direct staff to present findings, conclusions
and an order finalizing the Council's tentative decision on December 6, 2022."
Project/ Issue Relates To: Minor development land use application, LU 22-0041.
Issue before Council (Highlight Policy Question):
❑Council Goals/Priorities ❑Adopted Master Plan(s) ❑S Not Applicable
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BACKGROUND
The Commission held a public hearing on September 19, 2022. The Commission approved LU 22-
0041 as reflected in the Findings, Conclusion, and Order adopted on October 3, 2022 (Exhibit B-
001). The notice of intent to appeal the decision (Exhibit A-001) was filed by the First Addition
Neighbors/ Forest Hills Neighborhood Association1 (appellant) on October 11, 2022, prior to
expiration of the 15-day appeal period.
ISSUE BEFORE COUNCIL
Shall the Council affirm the Commission's Decision and approve the Applicant's request for a
Development Review Permit with variances or reverse the Decision and deny the Applicant's
request?The applicant is requesting approval of the following:
• Development Review Permit to construct additions on an existing dwelling in the
Downtown Redevelopment Design District;
• Minor Variance to reduce the combined total 15 foot side yard setback to 12 feet for the
proposed second story and east additions;
• Design Variance to reduce the north side yard setback to 2.9 feet and south side yard to
3.7 feet for the proposed west addition;
• Design Variance to reduce the rear yard setback from 20 feet to 4.5 feet;
• Design Variance to increase the maximum lot coverage from 35%to 47%; and
• Design Variance to increase the maximum long wall plane on a narrow lot from 60 feet
to 72.21 feet.
COUNCIL HEARING PROCEDURE
Pursuant to LOC 50.07.003.7.h, the quasi-judicial public hearing is "on the record" before the
Council; only parties that appeared in the proceeding before the Commission may testify either
orally or in writing before the Council. Argument is limited to issues raised before the Commission.
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 "LU 22-0041" in the
search box at the top right of the home page).
At the start of the public hearing, Councilors will be asked to declare ex parte contacts, bias and
financial conflicts of interest.
DISCUSSION
Approval or denial of the application is based on the criteria and the evidence in the record: if
substantial 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
1 Sec.of State filing is as"First Addition Neighbors."
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be denied. The Commission's Findings, Conclusion and Order (Exhibit B-001) and incorporated
Staff Report (Exhibit D-001), provides detailed findings for each of the applicable approval
criteria.
Appealed Issue(s)
In the notice of intent to appeal (Exhibit A-001), the appellant states that the Commission erred in
approving LU 22-0041 in the following three ways, with staff analysis following:
1. The information presented by the applicant was incomplete and insufficient to meet code
as noted in Exhibit G-200;
This issue was raised in Exhibit G-200.
Staff analysis of the applicable criteria is found in the staff report (Exhibit D-001) and staff
memoranda (Exhibit D-002). The staff memo addresses the concerns raised in Exhibit G-200
regarding the lack of a neighborhood meeting (not required), and the requested minor variance
and design variances to the rear yard setback and lot coverage. Exhibit G-200 discusses the
applicants' narrative and asserts that it included conclusory statements and lack of evidence,
and therefore stated that the application should be considered incomplete.
Staff's recommendation -- and the Commission's decision --was based on all the materials in
the record, not just the applicant's narrative. Staff found that the submitted plans (Exhibits E-
001— E-008) and narrative provided sufficient evidence to demonstrate the criteria were met.
The Commission incorporated the staff report and staff memo in its Findings as support for its
decision.
2. Staff interpretation provided to the Commission on code and First Addition Neighbors-Forest
Hills Neighborhood(FANFH)development was insufficient and that the Commission
deliberation was not sufficient to cover the items raised in Exhibit G-200;and
The appellant does not provide any specific details on how staff interpretation to the Commission
was insufficient or how the Commission's deliberation was insufficient to apply the criteria;
therefore, staff is unable to provide additional analysis on this issue.
The relevant question is whether the Commission's Findings, Conclusions and Order complies with
LOC 50.07.003.4.g.ii:
"The final written order shall consist of a brief statement that explains the criteria and
standards considered relevant, states the facts relied upon in rendering the decision and
explains the justification for the decision based upon the criteria, standards and facts set forth."
As noted, the Commission incorporated the staff report and staff memo in its Findings as
support for its decision, which identifies the applicable criteria and standards, states the facts
from the record relied upon in rendering the decision, and explains the basis for the decision as
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to each criterion or standard. (To raise an issue on appeal, it must have been raised with
sufficient specificity before the Commission to enable the hearing Commission to respond. LOC
50.07.003.7.h.i. If the appellant argues that the Staff Report did not adequately address the
criteria or standards, it was bound to have first raised the issue before the Commission.)
3. The Commission did not adequately consider, per code mandate, the information presented
during the hearing by the neighbors.
The appellant does not identify the "code mandate" or the degree of"adequacy of consideration"
required. The Commission received written testimony (Exhibits E-001—008, F-001— F-008, G-001,
and G-200 - G-202) and oral testimony that was neutral and in opposition to the application at the
September 19th hearing. The Commission considered the testimony and evidence submitted in its
decision.
The possible "code mandate" that appellant refers to is the requirement that the Commission
tentatively approve or deny an application "based upon the applicable standards and criteria and
the evidence and testimony in the record" and adopt a final written order that consists "of a brief
statement that explains the criteria and standards considered relevant, states the facts relied upon
in rendering the decision and explains the justification for the decision based upon the criteria,
standards and facts set forth." LOC 50.07.003.4.g.i, ii. Thus, the question is whether the
Commission's Findings and Conclusions, with all incorporated materials, comply with LOC
50.07.003.7.h.ii. Appellant's Notice of Appeal does not state how these code requirements were
not met.
RECOMMENDATION
The Council has the following options:
1. Affirm the Commission's decision and approve LU 22-0041, subject to the conditions of
approval listed in the Commission's October 3, 2022, Findings, Conclusion, and Order (Exhibit B-
001). [The Council may modify the conditions of approval if deemed necessary or appropriate
(LOC 50.07.003.7.n.ii)].
2. If the Council finds, from substantial evidence in the record, that not all of the applicable
criteria and standards are met:
a. Reverse the Commission's decision, in whole or in part, and deny LU 22-0041 if the reasons
for denial cannot be addressed through conditions of approval, per ORS 197.522; or
b. If the applicant agrees to extend or waive the 120-day requirement of LOC 50.07.003.1.g.i /
ORS 227.178, remand the decision to the Commission for additional evidence or
reconsideration.
Staff recommends Option 1, that the Council approve LU 22-0041.
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EXHIBITS
A. NOTICE OF INTENT TO APPEAL
A-001 FAN-FH NA, Notice of Intent to Appeal, October 11, 2022
B. FINDINGS, CONCLUSION AND ORDER
B-001 LU 22-0041-2035, October 3, 2022
C. MINUTES OF THE DEVELOPMENT REVIEW COMMISSION HEARINGS
C-001 Minutes of September 19, 2022, Commission Hearing
C-002 Minutes of October 3, 2022 Commission Meeting
D. STAFF REPORTS
D-001 Staff Report, dated September 9, 2022
D-002 Staff Memo, dated September 19, 2022
E. GRAPHICS/PLANS
E-001 Location Map
E-002 Existing Conditions Survey
E-003 Coversheet
E-004 Demolition Plan
E-005 Site Plan
E-006 Floor Plans
E-007 Elevation Plans
E-008 Artistic Renderings
F. WRITTEN MATERIALS
F-001 Applicant's Narrative
F-002 Geotechnical Report, dated April 23, 2022
F-003 Structural Engineering Feasibility Memo, dated July 29, 2022
F-004 Solar Balance Point Worksheet
F-005 Arborist Report, dated January 10, 2022
F-006 Fire Marshal Memo, dated August 11, 2022
F-007 Brown & Caldwell, Stormwater Analysis
F-008 Applicants' Presentation
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G. LETTERS
Neither for nor Against (G1-99):
G-001 FAN-FH NA Comments, dated August 15, 2022
Support (G100-199):
None
Opposition (G200+):
G-200 Testimony from FAN-FH NA, received September 16, 2022
G-201 Testimony from Payton, received September 19, 2022
G-202 Testimony from Jazrawi, received September 19, 2022
Copies of these exhibits were distributed to the Commission and are available online at the following
link: http://www.ci.oswego.or.us/boc dre/lu-22-0041-request-design-review-design-variances-and-minor-
variance-construct-additions
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