Loading...
Approved Minutes - 2022-11-21 PM 011/4REGEo4 CITY OF LAKE OSWEGO Development Review Commission Minutes November 21, 2022 The Commissioners convened at 7:02 PM. Members Present: Chair Randy Arthur, Vice Chair Kirk Smith, Jeff Shearer, Bruce Poinsette, and Dwight Sangrey, Members Absent: Timothy Lyons, and John Dewes Staff Present: Jessica Numanoglu, Deputy Community Development Director; Evan Boone, City Attorney Pro-tem; Daphne Cissell, Associate Planner; and Kat Kluge, Administrative Support MINUTES October 17, 2022 Minutes: No corrections were noted. Vice Chair Smith moved to approve the Minutes of October 17, 2022, as written. Seconded by Commissioner Shearer and passed 5:0. PUBLIC HEARINGS AP 22-06 [499-22-001206-TREE]: A request for hearing appealing the tentative staff decision to approve a Type II tree application to remove one 46" DBH Douglas-fir in order to construct a garage addition to an existing single-family dwelling. This site is located at 817 D Avenue (21 E03CA00700). The Staff Coordinator is Daphne Cissell, Associate Planner. Evan Boone, City Attorney Pro-tem, gave an overview of the public hearing process, outlined the applicable criteria and procedures, and gave instructions for verbal testimony. Mr. Boone 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, except as follows: Commissioner Dewes and Poinsette indicated that they drove by the site but made no specific site visit. There were no challenges to the Commissioners' rights to consider the application. Staff Report Prior to presenting the staff report, Daphne Cissell, Associate Planner, added Exhibits F-004, and G-221 to G-225 to the record (received after the staff report was written). Development Review Commission Minutes November 21, 2022 Page 1 of 5 The site is located in a R-6 zone. Criteria Review: LOC 55.02.080(1): The tree is requested for removal to construct an addition to an existing, attached single-car garage and expand the driveway. The 46" Douglas-fir is located within the footprint of the proposed addition. The reason for removal is development. This criterion is met. LOC 55.02.080(2): Removal of the tree will not have a significant negative impact on erosion, soil stability, flow of surface waters, protection of adjacent trees, or existing windbreaks based on the application materials submitted and the City's contract arborist assessment of the trees, as discussed in the staff report. This criterion is met. LOC 55.02.080(3): The tree is in fair condition, exceeds 15" diameter at breast height (DBH) and is noninvasive. The species is not unique to the neighborhood, nor does the tree provide distinctive character; however, staff finds that the tree is among the largest in the neighborhood and is considered "significant" due to its size. Other smaller trees will be retained on the property. Staff finds that the removal would have a significant negative impact on the continuity of the neighborhood skyline. Because the removal of tree would have a significant negative impact on the character and aesthetics of the neighborhood, the Applicant must consider reasonable alternatives per Exception (b) to this criterion. The tree is within the buildable envelope. All new construction must comply with the Code standards, and the plans provided show these are met for the proposed addition. The Applicant provided an alternative analysis showing an alternate location for the garage that is code compliant demonstrating that the tree would still need to be removed because of the extent of impacts to the critical root zone of the tree due to grading/excavation up to 2'-deep and the garage would be within 1-foot of the tree trunk. Staff finds that this would not be a reasonable alternative that lessens the impact on trees. Staff discussed the other alternatives proposed by commenters, finding that they did not comply with code standards because the garage cannot be located at the front of the lot or in a tandem configuration as proposed because it would not meet the R-6 zone garage appearance standards per LOC 50.06.001.4.b, or that the setback requirements would not be met. Staff finds that there are no reasonable alternatives to the removal of the tree that allows the development as permitted by the zone. Staff recommends approval of the Type II removal application, subject to the following conditions of approval (COAs): A) Prior to issuance of building permit, submit mitigation plan showing the location, size, and species of 2 native mitigation trees. B) Prior to the final inspection for the structure, plant the required mitigation trees per Condition A, and request an inspection by staff. Questions of Staff None Applicant Testimony Jamie Howsley, with Jordan Ramis, agreed with staff's finding to approve the application, denying the appeal. He stated that the root protection zone for this tree consumed 24% of the entire lot. He indicated that due to other Code constraints, expansion to the west was the only alternative. He pointed out that no expert testimony was provided by the Proponents of the appeal. He requested that members deny the appeal, suggesting that the DRC work with City Council to revise the portions of the Code that do not conform to Oregon State law regarding "clear and objective" criteria for housing. Development Review Commission Minutes November 21, 2022 Page 2 of 5 Questions of Applicant None Public Testimony In Opposition Diana Schmidt, 711 7th Street, Lake Oswego, OR 97034, requested that members preserve the significant 46" Douglas-fir, as it was one of the greatest charms of the neighborhood. She opined that D Avenue was a highly trafficked street and this tree was quite visible, with the removal highly affecting the continuity of the skyline. She stated that mitigation with young trees would not equal the loss of the tree. Chair Arthur asked if she had a specific alternative to share. Ms. Schmidt replied that she did not, but that more time should be given to find an alternative. Jill Cabral-Schinn, 949 Cumberland Road, Lake Oswego, OR 97034, representing the First Addition Neighbors/Forest Hills Neighborhood Association (FAN/FHNA), requested that members overturn the tentative approval of the application. She shared a slideshow presentation outlining the recommendations of FAN/FHNA, and comments made by other neighbors in the area. She noted that she was amazed that the tree was thriving, even though 1/2 of its root system was covered by concrete or structures. She pointed to this being the only large tree on the property. She requested that variances to the setbacks be granted, rather than removing the tree. Chair Arthur inquired whether FAN/FHNA requested that an arborist analysis or other expert provide an alternatives analysis. Ms. Cabral-Schinn stated that they were unable to gain access to the property to have this performed. Suzanne Meckel, 658 5" Street, Lake Oswego, OR 97035, informed members that she had been a resident of First Addition since the 1980s and was one who was advocating for the revision to the Tree Code (taking it back to how it used to be). She noted that she was one who submitted photos of alternative garage styles (photos shown during the meeting). She mentioned the variances recently given for a different development on 5' Street, wondering why that could not be granted in this case. She relayed information regarding alternative surfaces to save the tree. Applicant Rebuttal Mr. Howsley opined that the comments in opposition were an attempt to design on-the-fly. He pointed to the applicant's alternatives analysis meeting the Code criteria, based on the location of the tree and critical root zone. Questions of Applicant Commissioner Shearer requested confirmation that their opinion was that the significance of the tree fell outside the bounds of the State law. Mr. Howsley affirmed, referring to this same conversation being held in front of the DRC in June 2022. Mr. Boone recommended that members consider the application based on the Code criteria, and if met, there would not be the need to address the "clear and objective" statute issue. Chair Arthur asked if the Applicant felt that the alternatives provided during oppositional testimony were not reasonable. Mr. Howsley affirmed that this was their position because the alternatives Development Review Commission Minutes November 21, 2022 Page 3 of 5 would violate other provisions in the Code and the critical root zone would be impacted with any development on the west side of the property. Vice Chair Smith questioned the argument that the Tree Code criteria could be applied if the DRC found in favor of the application but could not be applied if they denied the application. Mr. Howsley replied that they believed that they met the City's Code criteria, as evidenced by the staff report and recommendation for approval, and that he heard nothing that would contradict that recommendation. He then stated that if the DRC were to disregard the staff's position on this matter, they would remind DRC members that they did not believe that the City's Code met the "clear and objective" requirement under the "Needed Housing Statute," and would be subject to appeal and potential attorney's fees before the Land Use Board of Appeals (LUBA) (as a method of preservation). Vice Chair Smith requested that staff provide the analysis. Mr. Boone noted that he would provide the analysis once directed by the City Council to do so. Chair Arthur closed the public testimony portion of the hearing. Questions of Staff, revisited Commissioner Shearer requested that staff walk through the analysis for LOC 55.02.080(3)(b) again. Ms. Cissell replied that the northern root system would be affected with any development on the west side of the property. Chair Arthur inquired whether the DRC could require that variances be permitted in relation to development permitted in the zone. Mr. Boone replied that variances could not be required, as part of the Tree Code, per decisions ruled on both by the DRC and by City Council. He added that the variance request would be under a separate application following different criteria (citing to the analysis found in the staff report). Chair Arthur then asked why 2 Douglas-fir trees were not required for mitigation. Ms. Cissell stated that the condition would require 2 native mitigation trees rather than a specific species of tree. Deliberations Commissioner Dewes thanked citizens for coming out to speak, adding that he appreciated the passion he heard for the neighborhood. He stated that he saw that the Applicant had the right to make this addition under the zoning standards. Chair Arthur agreed with the finding that this was a significant tree based on size and prominence in the neighborhood skyline; however, he opined that the DRC could not require the Applicant to apply for a discretionary variance, and that the evidence showed that there were no reasonable alternatives for use of the property as permitted in the zone to allow the tree to be saved. Chair Arthur moved to approve AP 22-06, as conditioned by staff. Seconded by Commissioner Dewes and passed 5:0. Mr. Boone instructed staff to return the Written Findings, Conclusion, and Order on Monday, December 6, 2022, at 6:00 PM (via Zoom). SCHEDULE REVIEW AND MANAGEMENT UPDATE Ms. Numanoglu, Deputy Community Development Director, updated DRC members on upcoming meetings: December 5, 2022 has the Findings from this meeting. December 21, 2022 has no items scheduled. Development Review Commission Minutes November 21, 2022 Page 4 of 5 Chair Arthur requested an update on how they may present the information to City Council regarding the Aquatic Center pathway. Ms. Numanoglu replied that the Engineering Department was collaborating with the Parks Department on that issue to produce an estimated cost and to work through right-of-way (ROW) issues. She noted that she could not provide a specific timeline when that would be completed, but the data would be presented to the City Council once compiled. Chair Arthur then asked if there was a "Boards and Commissions Summit" scheduled. Ms. Numanoglu noted that it was scheduled for early January and that she would forward the invitation after it was published. Commissioner Shearer inquired whether the Tree Code issue would be addressed at some time. Ms. Numanoglu indicated that it was a goal of the City Council to update the Urban Community Forestry Plan, and that this is currently underway but would take some time. Ms. Numanoglu shared that the City Council upheld the DRC decision on an appeal regarding variances requested at 520 5th Street. ADJOURNMENT Chair Arthur adjourned the meeting at 8:19 PM. Respectfully submitted, /s/ Kat Kluge, Administrative Support Development Review Commission Minutes November 21, 2022 Page 5 of 5