Agenda Item - 2022-06-27 - Number 06.1 - Supplemental Staff Memo 06-24-22 w-Exh (LU 22-0015) p J5�tr MEMORANDUM
wow C))
°REGflt�
TO: Planning Commission
FROM: Paul Espe, Associate Planner
SUBJECT: LU 22-0015/Supplement to Staff Report
Testimony Received as of June 21 2022
DATE: June 24, 2022
BACKGROUND
Testimony Received:
Exhibit G 100: Ed Trompke/Jordan Ramis Representing Jeff Parker- 6-13-22
Exhibit G 101: Thanawala, Pederson, Jesneck, Robinson, et. al. - 6-20-22
At the Planning Commission's June 13, 2022 hearing on LU 22-0015, the Commission received
oral testimony in support of the application from Ed Trompke with Jordan Ramis PC,
representing Jeff Parker, the prospective buyer of the properties (at 13560, 13570 and 13580
Goodall Road), herein after referred in this document as the "proponents".The Commission
also received oral testimony in support from Ruchi Thanawala, a neighbor residing at 13592
Goodall Road.
The Commission also received written testimony from proponents after the publication of the
May 25,'2022 staff report and after the deadline to submit public testimony of June 13 at 12:00
noon. Proponents written testimony (Exhibit G-100) was entered into the record after the
Planning Commission granted a continuance of the public hearing, limited to written testimony
until June 20, 2022, requested by Mr. Parker and his legal representative, Mr. Trompke to June
27, 2022.
The Commission also received written testimony in support of the proposed RP designation
during the continuance period, via joint letter (Exhibit G-101) from; Donna and Andrew
Pederson, 13590 Goodall Road; Ruchi Thanawala and Johnathan Jesneck, 13592 Goodall Road;
and Kelly and Ryan Robinson, 13594 Goodall Road. The residents of 13592, Goodall Road, Ruchi
Thanawala and Johnathan Jesneck included images of the water that flows on to their property
after the land was disturbed immediately behind their property.
503.675.3984 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
Page 2 of 9
Commission Request for Information
During the public hearing, the Commission requested staff provide additional information
about the existing Sensitive Lands Designations on the surrounding properties. Figure 1.1,
below, is a vicinity map which includes the Sensitive Lands (RP and HBA) designations on
subject development site and surrounding properties. The blue areas represent the Resource
Protection (RP) boundaries and the green areas represent the Habitat Benefit (HBA) Areas. The
areas with the red hatching depict RP resources that were previously delineated through the
procedure provided by the Sensitive Lands Code (LOC 50.07.004.8(d)(2) for wetlands and LOC
50.07.004.8(d)(3) for stream corridors) as a part of the land use review for these properties.
Wetland and riparian area delineations are performed as a part of a development application
(usually a partition or a subdivision)that serves to designate the resource more accurately
through additional study by a qualified hydrologist or wetland scientist.
/JFugurei. -urdinity;Map With Existing SL Sens t ve i ands Desi n-atrans--
[ I I- i
'- - - f I , Subject Site (2 Lots)
14—
.... 'x y S, oun ry 1
, ..__. - 1 core,
HBA .1-7---
i
a - -- 1- re v n
r 4' ''•' Delineated
j RP �_.._ N,,,..,
take O wego �l -craze' \N .-
nlgn seko A a,. ! 1
^.-1
Je - r�,. .` N f
F ~
�ShireV Uf �j / F
DISCUSSION
In the proponent's testimony they object to inclusion of the protected riparian area as part of
the RP district designation. Mr. Parker argues that the proposed expansion of the RP district
designation, in addition to the existing RP District and the existing (but reduced) HBA district,
would inhibit housing development on approximately 80 percent of the area of the "combined
properties." He did not identify which properties were considered the "combined properties"
nor quantify the percentage of the additional RP district area proposed.
Page 3 of 9
Staff notes that Mr. Parker has submitted an annexation petition for the subject two parcels
and, following annexation, proposes to develop three parcels; 13560, 13570 and 13580 Goodall
Road as a land division under a single development application. Staff understands the
referenced 80% RP district/ HBA district on the "combined properties" is to be the resulting
combined RP/ HBA district designation upon the two parcels (Exhibit G-1, pg. 4). Staff finds that
for this application and the ESEE analysis required, the analysis is made on incremental effects
of amending the existing RP district designation on the two subject parcels.
Table 1.2 provides areas covered by the RP and HBA districts before and after the proposed
Map amendment for the two subject parcels.
Table 1.2
Before % Coverage After % Coverage
Designation Designation
RP 0.98 ac. 19.6 % 2.9 ac. 58 %
HBA 2.69 ac. 53.8 % 1.05 ac. 21 %
Total RP + 3.67 ac. 73.4 % 3.95 ac. 79%
HBA
b. HBA District Designation does not conflict with (is not a Conflicting Use for) Residential
Use of the Subject Properties
Per OAR 660-016-005(1), the first step is to identify conflicts with the Goal 5 inventoried
sites.
OAR 660-016-0005 Identify Conflicting Uses
(1) It is the responsibility of local government to identify conflicts with inventoried Goal 5
resource sites. This is done primarily by examining the uses allowed in broad zoning
districts established by the jurisdiction (e.g., forest and agricultural zones). A conflicting
use is one which, if allowed, could negatively impact a Goal 5 resource site. Where
conflicting uses have been identified, Goal 5 resource sites may impact those uses.
The City may consider only other allowable uses that have a negative impact on the Goal 5
resource. Hegele v. Crook County, 190 Or. App. 376, 379 (2003). When imposing an HBA
district designation, the question is whether residential uses would have a negative impact
on the HBA district (tree grove) area. However, this application will result in a reduction of
the HBA district designation on the subject properties because of the expansion of the RP
district designation area on the current HBA designation area.
Mr. Parker contends that the proposed RP district map amendment is imposing an
additional unmapped HBA district area on the subject properties. That is not correct: see
Staff Report, pg. 1 and pg. 3, Figures 1.1 and 1.2. Accordingly, staff finds that the
reduction of the HBA district designation by this application does not result in a conflicting
use (residential use) on more of a Goal 5 resource area.
Further, possible residential uses upon the HBA district designated areas does not conflict
with the tree groves identified and designated for HBA district "protection" because the HBA
development restrictions are voluntary: a property owner proposing a land division is not
required to apply the HBA development restrictions unless the owner applies for the HBA
district incentives. Similarly, Mr. Parker appears to contend that that residential
development is prohibited in the HBA district; that is not correct.
Page 4 of 9
LOC 50.05.010.5 STANDARDS APPLICABLE TO RESOURCE CONSERVATION
(RC) AND HABITAT BENEFIT AREA (HBA) OVERLAY DISTRICTS
a. Resource Conservation (RC) and Habitat Benefit Area (HBA) Environmental
Review Standards; Applicability and Purpose
In addition to compliance with LOC 50.05.010.4.b, Modifications to Dimensional
Standards, Setbacks and Floor Area of the Underlying Zone, and LOC 50.05.010.4.c,
Density Transfer, applicants for development which are subject to environmental review
pursuant to LOC 50.05.010.2 on property containing an RC district, and applicants for
development on property containing Habitat Benefit Area (HBA) where development
incentives apply pursuant to LOC 50.05.010.7, shall comply with the standards
contained in LOC 50.05.010.5.b and 50.05.010.5.c in order to: ***
LOC 50.05.010.7 HABITAT BENEFIT AREAS (HBA) INCENTIVES
b. Applicability
Only properties meeting the following criteria may apply for land division approval using
habitat-friendly development incentives:
i. Habitat Benefit Areas. Properties designated Habitat Benefit Area (HBA) and
proposed for development.
c. Habitat Benefit Areas (HBA) Delineation and HBA Protection Area
Applications for land division approval using Habitat Benefit Area incentives shall:
i. Delineate the HBA using the procedure under LOC 50.07.004.8.d; and
ii. Establish an HBA protection area using the procedure under LOC 50.05.010.5.b,
except that the HBA protection area shall be a minimum of 50% of the HBA area; or***
If a property owner does not apply for the HBA incentives, then the HBA development
restrictions are not applicable. Accordingly, staff finds for both reasons that the reduction of
the HBA district designation on the subject properties does not result in a conflicting use
upon the HBA district designation area on the subject properties and, therefore, no ESEE
analysis is required for the HBA district designation remaining on the subject properties.
c. The Expansion of the RP District Designation is a Conflicting Use on the Residential Use
of the Subject Properties
19.6% of the area of the subject properties is currently subject to an RP district designation
because of the Nettle Creek stream corridor and its protected riparian area. RP district area
expansion is an additional 38.4% of the area of the subject properties. Upon annexation,
residential use in the expanded RP district designated area would be a conflicting use with
the wetland and protected riparian area. Staff concurs with Mr. Parker and Staff(Exhibit F-
004) that residential use within the proposed expansion area of the RP district designation
would be a conflicting use to the wetland and its surrounding riparian area, and, therefore,
an ESEE analysis is required for, and limited to, the RP district designation expansion area.
1. OAR 660-016-0005 Identify Conflicting Uses/ESEE Analysis
(3) Determine the Economic, Social, Environmental, and Energy Consequences: If
conflicting uses are identified, the economic, social, environmental and energy
consequences of the conflicting uses must be determined. Both the impacts on the
resource site and on the conflicting use must be considered in analyzing the ESEE
consequences. The applicability and requirements of other Statewide Planning Goals must
also be considered, where appropriate, at this stage of the process. A determination of the
Page 5 of 9
ESEE consequences of identified conflicting uses is adequate if it enables a jurisdiction to
provide reasons to explain why decisions are made for specific sites.
a. Examining Impacts Between the Conflicting Residential Use and the Goal 5 Resource
(Wetland and Riparian Area)
When a conflicting use (residential use) to a Goal 5 resource (wetland and surrounding
riparian area) is identified, then the impacts of the conflict are examined in both directions:
"both 'impacts on the resource site and on the conflicting uses must be considered in
analyzing the ESEE consequences,' .... The ESEE analysis examines economic, social,
environmental, and energy consequences of the conflicts between the resource site and
other uses." Hegele v. Crook County, 190 Or. App. 376, 379 (2003), quoting Hegele v.
Crook County, 44 Or LUBA 357, 375-77 (2003)(interpreting OAR 660-016-0005(2)).
b. Economic Consequences:
i. Impacts of the Conflicting Residential Use to the Expanded RP District
Designation Area.
There is no economic effect to the wetland from the adjacent residential use.
ii. Impacts of RP District Designation to the Conflicting Residential Use
An additional 1.92 acres (or 38.4%) of the 5.01-acre subject properties would be
designated for RP District development protections, for resulting 2.9 acres (or 58%) of the
developable area would be mapped with an RP district designation.
Mr. Parker states that the number of residential lots created through subdivision will be
reduced by the RP district (and HBA district), and that, based on the average market value
of abutting lots, there would be an economic loss of$1,629,009 per lot. Alternatively, he
states that they could propose fewer lots with larger units.
Mr. Parker's testimony does not provide evidence of: (1) the effect on the number of lots
limited to the expanded area of the RP District, taking into consideration the land division
opportunities with the existing RP district designation area; and (2) how the lots would be
reduced.
Mr. Parker's objection is not to the expansion of the RP district designation to the wetland,
but to the surrounding protected riparian area, as Mr. Parker indicated support for an RP
district designation without the protected riparian area provided under LOC Table
50.07.004-A. Staff finds that in order to determine the economic consequence of the
expanded RP District designation area —wetland and protected riparian area -- on the
number of lots, one would need to apply the minimum lot size under the R-15 zoning
designation and density transfer allowed under LOC 50.04.003.10.c.iii and LOC
50.05.010.4.b.ii, as well as modifications to lot area dimensional standards, setbacks, and
floor area allowed under LOC 50.05.010.4.b for parcels with RP districts to calculate the
number of lots permitted under the RP district designation.
Further, staff finds that in addition to single-family dwelling units within a future subdivision,
the R-15 zone allows accessory dwelling units, duplexes, townhouse projects, cottage
cluster, quadplexes and triplexes (LOC Table 50.03.002-1, as amended by Ord. 2892).
These tools provide the option of building more units, minimizing or eliminating the loss of
developable lots and the loss of number of dwelling units, thereby reducing any perceived
economic impacts. Accordingly, staff finds that the asserted reduction of$1.6M in market
value per lot is limited to the one development possibility, without taking into account the
various adjustments in lot area, density, and dwelling options allowed under the Code with
Page 6 of 9
the RP District designation, and therefore staff finds that the asserted value reduction
cannot be relied upon. And as Mr. Parker does not object to the wetland area portion of the
proposed RP District designation, the calculation of the effect of elimination of the protected
riparian area (if that were possible), is even less quantifiable and would have less economic
impact upon the residential use of the subject properties.
iii. Impacts of RP District Designation to the Community
Mr. Parker also states that there would be an unquantified negative economic
consequences in lost jobs, and in reduced tax base and lost tax revenue to the City
resulting from reduction in the number of lots and dwelling units (Exhibit G-100, pg. 4-5)
and that:
"the economic impact of not applying the RP and HBA District overlays is difficult to
quantify. The result would be an incremental reduction of surface water quality, habitat
connectivity and habitat area. Undeveloped wetlands have a significant but unquantified
economic value in terms of natural services provided; air purification, storm water
management and increase in adjacent property values." (Exhibit G-100, pg. 5).
Staff agrees that the economic impact to the community by not applying the RP District is
difficult to quantify, but it is nevertheless real and significant. For example, if the current
flood-dampening effects provided for the stream and drainage basin by its associated
wetland and riparian area were not protected through the RP district development
restrictions, there would be downstream flooding and damage to public infrastructure and
private property, resulting in negative economic effects to the community. Retaining the
current wetland function, with its riparian area, protects adjacent and downstream property
values and avoids costly new public infrastructure that would result if the flood-carrying
capacity were reduced.
The City Comprehensive Plan identifies that wetlands are an important part of Lake
Oswego's environment. (Comprehensive Plan, Healthy Ecosystems, pgs. 8, Policies 2, 6).
They are valuable for many reasons including stormwater storage, erosion control, water
quality enhancement, groundwater recharge and fish and wildlife habitat. Wetlands also
contribute to the community's aesthetic quality and provide opportunities for recreation and
education. (Comprehensive Plan, Healthy Ecosystems, pg. 6). Development on this
resource and other resources throughout the city would result in the incremental reduction
of surface water quality, stormwater storage, habitat connectivity and habitat area. This
would adversely affect both intrinsic aesthetic -- and thus city-wide property values— but
would also have direct financial costs to address the loss of flood-dampening, flood
capacity, water quality, public infrastructure cost for repairs and new construction, and
private property costs to protect against new flooding.
Staff finds that the economic element of the ESEE analysis under OAR 660-016-0005 does
not consider the broad community economic effects, although they are real.
c. Social Consequences:
i. Impacts of the Conflicting Residential Use to the Expanded RP District Designation
Area
Mr. Parker states that "not applying the overlay would likely result in additional lots and
houses, thereby creating additional housing opportunities in the City." He also states that
the expansion of the RP district would result in higher housing costs and social stratification
Page 7 of 9
from these increasing home prices, and that "applying the RP and HBA overlays to land
zoned for housing will exacerbate the shortage and the large social costs that follow."
(Exhibit G-100, pg. 5).
As discussed under"Economic Consequences" above, staff finds that Mr. Parker's
assumed reduction of the number of residential lots and dwelling units by the expansion of
the RP district (and incorrectly also by the HBA district reduction) was both incorrect and
failed to consider the other residential housing options, including needed housing as
defined by ORS 197.303 ("Attached and detached single-family housing and multiple family
housing for both owner and renter occupancy"), that were possible on the subject
properties.
Staff finds, as stated in the ESEE analysis provided by staff(Exhibit F-004), the net social
consequence of producing smaller footprint units or producing fewer, but larger units
adjacent to a common open space is uncertain, but the net social impact would not be
significant.
ii. Impacts of RP District Designation to the Conflicting Residential Use
Mr. Parker concurred with staff that "that application of the RP and HBA overlay will
displace housing by moving development away from the resource area and reducing tree
and vegetation removal," preserving "privacy and natural character of the neighborhood",
and that not applying the RP District overlay would likely result in a greater amount of tree
and vegetation removal and more disturbance from larger lot development of these
properties, which would in turn, reduce the area's sense of privacy and natural character,
resulting in what would be perceived as a negative social consequence by existing
residents. (See Exhibit G-101, pg. 5, and Exhibit F-004, pg. 5.)
Staff concurs.
d. Environmental Consequences:
i. Impacts of the Conflicting Residential Use to the Expanded RP District
Designation Area
Residential development would be subject to RP District development restrictions, which
would ensure that the wetland and protected riparian area would be preserved to the extent
possible. The RP District development standards also ensure mitigation of unavoidable
development impacts (LOC 50.05.010.4.g), and with protection or replanting of Native
Plants (LOC 50.05.010.4.g.vii), along with other development standards found in LOC
50.05.010.6.
Mr. Parker states that residential use will have a negative impact on the resource:
"annexation and subsequent development without the RP and HBA overlays would likely
have negative environmental impacts. Development in the wetland reduces habitat area
and quality. Wetlands provide values that are unique to other ecosystems. These include
natural water quality improvement, flood protection, opportunities for recreation and
aesthetic qualities. However, modern development techniques, especially for
stormwater detention and treatment, mitigate these impacts." (Exhibit G-100, p. 6).
Staff concurs. (Exhibit F-004, pg. 5).
ii. Impacts of RP District Designation to the Conflicting Residential Use
Mr. Parker states that the RP District designation's environmental consequence to the
residential use of the subject properties was only that the wetland would be preserved.
(Exhibit G-100, pg. 6).
Page 8 of 9
As noted above in staffs "Economic Consequences" finding, residential development under
the RP district development restrictions may still occur on the subject properties, given the
adjustments, density transfers, and housing options permitted.
e. Energy Consequences:
i. Impacts of the Conflicting Residential Use to the Expanded RP District
Designation Area
Mr. Parker and staff concur that residential development of the wetland and riparian area
would result in an energy demand for artificial cooling of the surrounding environment, as
the wetland's tree canopy, and to a lesser extent, vegetative cover create a shaded, cooling
microclimate. Allowing the vegetation to be removed (no resource overlay) would result in
higher energy demand. (See Exhibit G-100, pg. 6 and Exhibit F-004, pg. 6-7).
ii. Impacts of RP District Designation to the Conflicting Residential Use
Conversely, Mr. Parker and staff concur that protecting the wetland and riparian area will
result in conserving natural vegetation per LOC 50.05.010.6.c.iii(2, 8, 9), and thereby
reducing energy demand required for artificial cooling of surrounding development, for a net
positive impact on energy consumption. (See Exhibit G-100, pg. 6 and Exhibit F-004, pg.
6-7).
iii. Impacts of RP District Designation to the Community
Mr. Parker states that the expansion of the RP district designation will have a negative
energy consequence upon the community:
"Conversely, applying the larger RP and HBA District overlays will prevent additional
housing from being located on the site that is within walking distance of Lake Oswego
Junior and Senior high schools. Requiring those households to live elsewhere will
increase vehicle miles traveled, thereby increasing energy consumption. Allowing
vegetation to be removed (no or reduced resource overlay) would result in lower energy
demand." (Exhibit G-100, pg. 6.)
As discussed under the "Economic Consequences" above, staff finds Mr. Parker's analysis
is based on an incorrect assumption that the RP District development standards will
necessarily result in reduced number of housing units on the site. It fails to consider the
adjustments, density transfers and housing options permitted by the RP District regulations.
Further, there is no analysis of the difference between the RP district as now existing on
the subject properties versus the expanded RP district area (or just the protected riparian
area).
Conclusion:
Staff finds that the subject properties contain significant wetland habitat resources that
could be negatively impacted by intensified residential development. The impacts to the
wetland and riparian area can be reduced by the Sensitive Lands development restrictions
(LOC 50.05.010.6).
Although there may be some negative economic consequences upon the subject properties
by protecting the wetland and riparian area through expanding the RP District, any negative
consequences are substantially mitigated through the adjustments and density transfer
allowed under LOC 50.05.010, and the range of housing options allowed in the R-15 zone.
Page 9 of 9
The substantial negative economic impact envisioned by Mr. Parker is incorrect, as it does
not consider the full range of development adjustments and housing options available.
Staff also notes that there are substantial economic consequences for downstream
property owners and public infrastructure if the flood-dampening effects of the wetland and
its riparian area are lessened. Additionally, the negative social and energy consequences
Mr. Parker alleges are premised upon residential development without taking advantage of
the development adjustments and housing options available.
As the ESEE analysis demonstrated, these restrictions have positive social, environmental,
and energy impacts and an uncertain, marginal economic impact to the subject properties
and community. Protection of these resources will allow residential development to occur,
while ensuring that residents continue to enjoy good water quality, the presence of local
wildlife and a healthy natural environment.
###
EXHIBITS
Proponents
G-100 Revised ESEE analysis - Ed Trompke (Jordan Ramis Representing Jeff Parker): 6-13-22
G-101 Letter from Thanawala, Pederson Robinson et all: 6-20-22