F-012 Staff Memo LU 20-0027
503.635.0215 380 A Avenue PO BOX 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
TO: Development Review Commission
FROM: Evan Boone, City Attorney Pro Tem
Johanna Hastay, AICP, Senior Planner
CC: Jessica Numanoglu, AICP, Planning Manager
SUBJECT: LU 20-0027 (DR Permit for Improvements to LO Tennis Center)
Additional Testimony/New Evidence/Rebuttal Received
MEMO DATE: February 12, 2021
CONT’D HEARING DATE: February 17, 2021
After the publication of the January 29, 2021 DRC Memo, new evidence and testimony was
submitted into the public record prior to and then at the first evidentiary public hearing on
February 1, 2021 at the Development Review Commission (Commission).
At the hearing, the applicant then exercised the option of having the record left open per LOC
50.07.003.4.a.xi. The Commission elected to allow written testimony only, and set the following
submittal dates:
• New evidence due by February 8, 2021, 5:00 PM
• Rebuttal evidence to any of the new evidence submitted due by February 10, 2021, 5:00 PM
NEW EVIDENCE SUBMISSION by 2/8/21
F Exhibits: Additional Written Materials
F-011 CU 1-74 COLO Tennis Courts
F-012 CAO Memo re Testimony Time Limits 2-1-21
F-013 Applicant’s Memo – Remodel & Usage 2-8-21
G Exhibits: Additional Written Testimony
In Support:
G-115 Darby Email in Support 1-30-21
G-116 Buhlmann Letter in Support 2-1-21
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G-117 Meyer Email in Support 2-2-21
G-118 Lynch Email in Support 2-2-21
G-119 Moffenbeier Email in Support 2-2-21
G-120 Buhlmann Letter in Support 2-4-21
G-121 Dudley Email in Support 2-4-21
In Opposition:
G-226 Rossi Email in Opposition 1-29-21
G-227 Palaniappan Email in Opposition 1-29-21
G-228 Engel Email in Opposition 1-30-21
G-229 Appellant’s Written Testimony Hearing Procedures 1-31-21
G-230 Hicks DRC Presentation 2-1-21
G-231 Hepner Email in Opposition 2-2-21
G-232 Appellant’s Written Testimony dated 2/5/21
G-233 Hicks Letter in Opposition 2-8-21
G-234 Hicks Letter in Opposition 2-8-21
REBUTTAL EVIDENCE SUBMISSION BY 2/10/21
G Exhibits: Additional Written Testimony
In Support:
G-122 Christenson Email in Support 2-8-21
G-123 Dumestre Letter in Support 2-8-21
In Opposition:
G-235 Eves Letter in Opposition 2-9-21
ANALYSIS OF NEW TESTIMONY/REBUTTAL
With the exception of Exhibits G-222, G-223, G-230, G-232, and G-234, the additional written
testimony received either up to and at the public hearing, during the “new evidence” period, or
during the “rebuttal” period, has already been sufficiently addressed in the November 25, 2020
Staff Report (Staff Report). These issues include general comments regarding tree removal,
traffic, change in use intensity (both in support and in opposition), parking (in support of
additional parking and in opposition), application procedures, application of City Charter, and
public involvement/outreach (both in support of prior efforts and in opposition to). Staff refers
the Commission to the Staff Report.
This Memorandum reviews and provides staff findings for specific written testimony from the
appellant and others in opposition (see listed exhibits, below) regarding the prior CUP
permit/conditions of approval, development application procedures, parking, noise,
landscaping, loss of natural features, traffic studies, City Charter, LCDC, US Constitution,
stormwater, and tree removal:
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• Exhibit G-222 Appellant’s Written Testimony, 1-28-21
• Exhibit G-223 Appellant’s Supplemental Exhibit – City Charter Chapter ‘X’, 1-28-21
• Exhibit G-230 Hicks DRC Presentation 2-1-21
• Exhibit G-232 Appellant’s Written Testimony – New Evidence 2-5-21
• Exhibit G-234 Hicks Letter in Opposition 2-8-21
Table of Contents
CRITERIA DEPENDENT UPON IMPACT ............................................................................................ 4
SUMMARY OF PARTY’S IMPACTS ARGUMENT ............................................................................... 5
COMMISSION REVIEW OF IMPACTS TO BE BASED ON PROPOSED IMPROVEMENTS .................... 6
1974 CONDITION OF APPROVAL ..................................................................................................... 6
Programming .............................................................................................................................. 7
Parking ........................................................................................................................................ 7
Landscaping ................................................................................................................................ 7
Subconclusion ............................................................................................................................ 7
PROGRAMMING OF TENNIS FACILITY ............................................................................................. 7
PARKING (MINOR OR MAJOR CONDITIONAL USE MODIFICATION / PARKING STANDARD) .......... 8
1974 Conditional Use Approval - Parking Standard ................................................................... 8
“Recreation Facility” ................................................................................................................... 9
Numerical Method – Determining Parking Spaces by Gross Floor Area .................................... 9
Minimum Required by Modification ........................................................................................ 10
Additional Parking Spaces for Existing Facility / Minor v. Major Conditional Use Mods ........ 10
Reducing Degree of Nonconformity ........................................................................................ 10
Reducing Degree of Nonconformity Is Not Evidence of Increased Usage ............................... 11
Conditional Use Authority to Reduce Number of Parking Spaces ........................................... 11
LANDSCAPING (MINOR OR MAJOR CONDITIONAL USE MODIFICATION) .................................... 12
Subsection 4.b (“significantly affect other property or uses”) ................................................. 13
Subsection 4.c (“affect any condition specifically placed on the development)...................... 13
LOSS OF NATURAL FEATURE (MINOR OR MAJOR CONDITIONAL USE MODIFICATION) .............. 13
TRAFFIC / VEHICLE BEHAVIOR....................................................................................................... 15
TRAFFIC STUDY REQUIREMENT .................................................................................................... 15
CHARTER PROVISION ................................................................................................................... 16
Land Use Regulation ................................................................................................................. 16
Effect of Section 43 Regarding Trees & Vegetation In Tennis Center or “Springbrook Park” .. 18
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“Springbrook Park” Does Not Include Tennis Center ............................................................... 18
Trees in Tennis Center Parking Median Are Not In “Springbrook Park” .................................. 18
Construction Activity in “Springbrook Park”............................................................................. 19
LCDC GOALS ................................................................................................................................. 19
US CONSTITUTION, AMDT 14: DUE PROCESS AND EQUAL PROTECTION .................................... 21
TREE REMOVAL – “SIGNIFICANT TREE” ........................................................................................ 23
STORMWATER MANAGEMENT ..................................................................................................... 24
Stormwater Management Code .............................................................................................. 24
Stormwater Management of Existing Improvement – Scope of Conditions for
Modification of Conditional Use .............................................................................................. 24
Impose Stricter Standards Because City is Applicant ............................................................... 25
SOUND LEVEL FROM PARKING LOT ............................................................................................. 25
CRITERIA DEPENDENT UPON IMPACT
The key point of dispute is whether the proposed improvements will result in additional
significant impacts to the surrounding area due to increased facility usage beyond that
approved or allowed by the 1974 Conditional Use approval.
• If there is “no significant impact,” then the improvements:
• Meet one of the critical elements of a “minor modification” of the 1974 Conditional
Use approval (LOC 50.07.004.4.b: “Does not significantly affect other property or
uses.)
• Are a “Minor Park Improvement (LOC 50.10.003.2: “Park improvements with limited
off-site impacts”) and are outright permitted uses in the PNA Zone (Table 50.03.002-
2: Commercial, Mixed Use, Industrial and Special Purpose Districts Use Table).
• Do not require mitigation (LOC 50.07.003.5.a.iv: “The condition is reasonably related
to eliminating or mitigating a negative impact on … on the built environment of the
neighborhood which is created or contributed to by the proposed development.)
• Conversely, if the improvements would result in a significant increase in the impacts to
the surrounding properties beyond that within the scope of the 1974 Conditional Use
Approval, then the application:
• Is a major modification of the 1974 Conditional Use approval (LOC 50.07.005.3).
• Is a major park improvement that requires conditional use review (Table 50.03.002-
2; LOC 50.07.005.5.c, d).
• Requires mitigation of impacts to the built environment (LOC 50.07.003.5.a.iv).
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A major modification of a conditional use is also triggered if the modification “cause[s] any
deterioration or loss of any natural feature, process or open space; [or] significantly affect[s]
any public facility” (LOC 50.07.005.4.b).
SUMMARY OF PARTY’S IMPACTS ARGUMENT
With the exception of additional parking spaces to address an existing nonconforming
deficiency in compliance with current minimum parking space requirement, both applicant and
other interested parties look to whether the improvements will result in additional facility
usage beyond the 1974 Conditional Use approval that, in turn, will result in significant impacts
to the surrounding area.
• The applicant argues that the improvements will not result in a significant increase in
the facility usage, and hence no significant impacts to the surrounding area, because:
o There is no change in the number of tennis courts, and as evidenced by the ITE
manual (Exhibit F-007), the number of tennis courts is what determines the
facility usage for traffic generation;
o The improvements do not change the programming of the facility;
o The formal elevated spectator viewing area will replace the current informal “on-
court-level viewing” (and provide safety for the spectators and players);
o The improved bathrooms are to meet ADA standards; and,
o An expanded lobby area will contain pre- and post-match discussion to inside the
building (Staff Report, pgs. 8-9).
• The appellant and other interested persons argue that the proposed improvements will
cause significant increased facility usage, and hence significant traffic impacts to the
surrounding area because the improvements will result in a change in programming:
existing “limited come, play, and go use” or “limited use,” to a “full service,” “for
spectator events, such as stay and play, recreational team competition use,” and that
allowing team events will generate more spectators, and hence more traffic generation.
“While this may be an existing condition, it exists, in part, because the
intensification of recreational use over the years allowed by the Applicant
without seeking any formal approval or otherwise providing mitigating
conditions. The proposal seeks to avoid any responsibility for mitigating traffic
calming or safety conditions or additional noise protection for the impacts
Applicant has let occur contrary to the original design for use. Traffic safety is
certainly significant and the facility’s resulting traffic impacts that have been
allowed to grow, defacto, without approval, significantly affect the traffic safety
of and congestion for the residents and their property.” (Emphasis added).
(G-222, pgs. 1, 2, and 5-6).
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COMMISSION REVIEW OF IMPACTS TO BE BASED ON PROPOSED IMPROVEMENTS
The focus of the analysis for this application by the Commission is limited to what the proposed
improvements will cause, not what the impacts are of the existing facility under the existing
Conditional Use approval. As the Commission has considered prior applications, the
Commission must separate objections to the existing background conditions (either from the
subject permitted use or from the neighborhood generally) from the conditions that would
arise from the proposed development.
Once the Commission determines whether the proposed improvements will result in additional
significant impacts to the surrounding area due to increased facility usage, deterioration or loss
of any natural feature, or significantly affect any public facility beyond that approved or allowed
by the 1974 Conditional Use approval, that will then determine which criteria are applicable.
1974 CONDITION OF APPROVAL
The tennis center was considered a conditional use in the then-zoned SR-10 site. Conditional
uses were reviewed under the criteria of LOC 50.110 (Attachment 1):
“conditions found necessary to protect the best interests of the surrounding property or
neighborhood or the City as a whole. The conditions may include requirements …
increasing the number of off-street parking or loading spaces required…”
Review of the 1974 Conditional Use approval (CU 1-74) yields no conditions of approval either
recommended by staff (Exhibit F-011, pgs. 5-6) or imposed by the Planning Commission (Exhibit
F-011, pg. 8). 1
The appellant made assumptions as to what the conditions of approval should have been for
the 1974 approval: “There is a high probability that city officials sought and the Planning
Commission imposed conditions…” (Exhibit G-222, pgs. 3-4).
• The resulting 18 spaces (instead of the 26 spaces discussed in the applicant’s narrative in
Exhibit F-011, pg. 14) is evidence of conditions of approval imposed by the Planning
Commission (Exhibit G-232, pg. 1, to the contrary, Exhibit G-222, pg. 4).
• City Council discussion of funding for landscaping (Exhibit F-011, pg. 9) is evidence of
conditions of approval imposed by the Planning Commission (Exhibit G-232, pg. 1).
• “The design of the parking lot with the drainage meridian and four trees and 30 ft
buffering, again was designed to be in keeping with surrounding neighborhood and
reduce noise and glare associated with the intended use” (Exhibit G-222, pg. 4).
1 In the November 25, 2020 Staff Report (Staff Report), pg. 20, staff found that there were no prior conditions of
approval applicable to this application. Staff reviews any prior approvals (CU 1-74 for the tennis center) to
make this finding, but does not typically include those approvals as exhibits in the public record for a current
project if the finding is negative. In response to the appellant’s concern, staff added the entire record for CU 1-
74 (Exhibit F-011).
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Staff finds, from review of the 1974 Condition Use approval, that:
Programming:
Staff did not then recommend and the Planning Commission did not make any findings in
response to or in support of the idea that use of a reservation system for play “will keep the
additional traffic to a minimum” as stated in the 1974 Conditional Use approval applicant’s
narrative (Exhibit F-011, pg. 14). The 1974 Conditional Use approval also did not impose
conditions “capping” the intensity of the use in response to the noted narrative statement.
Parking:
Staff concurs with the appellant that there was a reduction in on-site parking from 26 spaces to
18 spaces. Appellant assumes that the intent was to ensure compatibility with other uses in the
vicinity (Exhibit G-232, pg. 1). Staff finds neither discussion about the number of parking spaces
nor the basis for the reduced number of parking spaces in the 1974 record. There was no
condition of approval regarding parking (Exhibit F-011, pg. 8). See discussion under Parking
(Minor or Major Conditional Use Modification / Parking Standard), below.
Landscaping:
The approved site plan illustrates a general “planting area” in the parking lot landscape island
(Exhibit F-011, pg. 2); there is no specific landscape plan with species, size, or location of
planting or discussion of a necessary percentage of landscaping set aside to ensure compliance
with the standards applicable at the time of approval. While the record notes the work
necessary to issue a certificate of occupancy (Exhibit F-011, pg. 11), this is not considered a
condition of approval, and certainly not for compliance with the conditional use criteria, as
stated by the appellant (Exhibits G-222, pg. 3, and G-232, pg. 1).
Subconclusion:
Accordingly, staff finds the proposed improvements:
• Meet the essential element of a “minor modification” (LOC 50.07.004.4.b: “Does not
significantly affect other property or uses);
• Are a “Minor Park Improvement (LOC 50.10.003.2: “Park improvements with limited
off-site impacts”) and are outright permitted uses in the PNA Zone (Table 50.03.002-2:
Commercial, Mixed Use, Industrial and Special Purpose Districts Use Table); and,
• Do not require mitigation (LOC 50.07.003.5.a.iv: “The condition is reasonably related to
eliminating or mitigating a negative impact on … on the built environment of the
neighborhood which is created or contributed to by the proposed development).
PROGRAMMING OF TENNIS FACILITY
Applicant has submitted a statement of the historic usage of the facility (Exhibit F-013, pgs. 2-
4).
Appellant states, and the basis of much of the neighborhood testimony about the existing
traffic conditions, is that:
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503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
• There has been an “intensification of team tennis play over the years and the buildup of
greater traffic associated with it without seeking any approvals,” resulting in, “an
increase of traffic to the tennis center over the years, including more speeding and
longer queuing at the Boones Ferry Road intersection …” (Exhibit G-222, pg. 2, see also,
pg. 5).
• There are additional negative traffic impacts generated by the unapproved recreation
league, team competition usage of the tennis center that has been allowed by the City
in contradiction to the intent of CU 1-74 (Exhibits G-222, pgs. 5-6, and G-232, pg. 1).
Appellant’s statements assume both a “no growth” condition of approval other than as the
facility was approved in 1974 and that “non-team tennis” was a condition of the 1974
Conditional Use approval, so that, even if this is true, that change in programming should have
been pursuant to a major modification of the Permit. The objection that the existing team
tennis play or “stay and play” tennis is outside of the scope of the 1974 Conditional Use
approval is necessarily outside the scope of this application for structure improvements. The
question isn’t the programming of the facility per the terms of the 1974 Conditional Use
approval; the question before the Commission is whether the proposed facility modifications
and their expected impacts will meet the minor (or major) modification of conditional use
criteria, per LOC 50.07.005.3.a or LOC 50.07.005.4.b.
PARKING (MINOR OR MAJOR CONDITIONAL USE MODIFICATION / PARKING STANDARD)
1974 Conditional Use Approval - Parking Standard
The tennis center was initially applied for with 26 parking spaces “to keep congestion from
occurring along the neighboring streets” (Exhibit F-011, pg. 14). The Planning Department
recommended approval. The parking lot discussion was limited to concern by a neighbor that
the lot would “become a haven for motorcycles as late as 2 am…” (Exhibit F-011, pg. 8). The
Planning Commission adopted findings, including:
“(6)…central location of the proposed development will result in greater player access
thus achieving maximum use of the development,” ... and
“(8) visual exposure of the facility will be significantly reduced in the Rainbow Terrace
Subdivision due to the topographic features of the subdivision in relation to the
structure” (Exhibit F-011, pgs. 5-6; emphasis added in italics).
No condition of approval was placed on the approval regarding the number of parking spaces
(Exhibit F-011, pg. 8).
In 1974, LOC 50.210 established the minimum number of parking spaces based on expressly
listed uses. Needless to say, “recreation facility” generally, “tennis center” more specifically, or
“baseline tennis facility” was not expressly listed. Per LOC 50.230(2), the Planning Commission
was to determine the number of parking spaces required, “based upon the requirements of
comparable uses” (Attachment 1). “Commercial amusements” were listed, setting the parking
spaces based on seats, bench length (stadium, arena, theater), per bowling alley, and per sq.
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footage (dance hall, skating rink). For conditional uses, per LOC 50.110, the number of parking
spaces could be increased (not decreased) by the conditional use approval (Attachment 1)2. The
record for the 1974 Conditional Use approval is silent as to what similar use was used to
establish the minimum number of parking spaces for the tennis center.
“Recreation Facility”
Appellant describes the existing (and continuing) use to be a “baseline (tennis) facility” (Exhibit
G-222, pg. 13). Presumably, the appellant would apply a different parking requirement than
found for “recreation facilities” in Table 50.06.002-3 Minimum Off-Street Parking Requirements
(Parking Table).
Although Appellant would prefer a different more tailored “baseline (tennis) facility”
classification in the Parking Table, that is a legislative decision, not one to be made on a case-
by-case, ad hoc basis. Absent a parking study at the option of the applicant, the numerical
method for “recreation facilities” is as stated in the Parking Table in order to determine the
minimum number of parking spaces required.
“Recreation facility” is a broad classification that includes many different types of recreation
facilities, including indoor tennis courts. Appellant concurs that “recreational facility” sweeps in
different types of recreation facilities, including as Appellant classifies the use, “baseline
(tennis) facility” (Exhibit G-222, pg. 13). Neither Appellant nor staff assert that the use is not a
“recreation facility” and would not be within the express “recreation facility” listing in the
Parking Table. See also, definition of “Social, Recreational, or Cultural Facility, Nonprofit” in
LOC 50.10.003.2:
“Swimming pools, tennis courts, recreation centers, community centers, cultural
facilities, open space, view points, and similar uses operated by a nonprofit organization
made up of a homeowners association or associations, neighborhood groups or an
association of such groups or neighbors, designed and intended for use by residents of
the development.”
Numerical Method – Determining Parking Spaces by Gross Floor Area
As presented to the Commission in the staff report for Kruse Village formal interpretation, LU
20-0030, there are a number of reasons why the numerical method, based on Table 50.06.002-
3 is a crude method to determine the amount of parking spaces needed for a specific use.
An additional reason is that the methodology for determining parking need may differ between
different types of “recreation facilities.” The Parking Table’s numerical parking method bases
the number of parking spaces for all “recreation facilities” upon the gross floor area (GFA).
2 In 1974, the conditional use standards also provided that the conditional use approval could modify zone
standards, e.g., setbacks, height, access to certain street classifications, signs, and special school, utility, and
residential dwelling standards, access [LOC 50.160 (Attachment 1)]. Parking is not a zone standard, and as
noted in LOC 50.110, a conditional use may only increase off-street parking.
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Table 50.06.002-3. The GFA method may well have their maximum capacity determined by the
gross floor area, e.g., “sports club/recreation facilities, including billiard and pool parlors, video
arcades, dance hall, gymnasium, health club.” The GFA methodology for “recreation facilities”
generally differs from the ITE traffic generation specific method of determining the number of
trips to and from a tennis facility by the number of courts. Tennis facilities do not fit this
pattern: the size of the lobby does not result in more people playing tennis and more
spectators watching the same number of persons playing tennis.
Minimum Required by Modification
Appellant asserts that the amount of parking is not nonconforming, but even if it is, the number
of parking spaces was reduced by the 1974 Conditional Use approval and therefore there is no
existing nonconformity in the minimum number of parking spaces required by the Parking
Table.
As to the proposed improvements of the tennis center building, three (after the development
size parking modifier) new parking spaces are required to meet the minimum parking
requirement per the Parking Table.
Additional Parking Spaces for Existing Facility / Minor v. Major Conditional Use Modification
Appellant and others state that 18 parking spaces were approved by the 1974 Conditional Use
approval, and therefore a change in the number of parking spaces for the existing 18 parking
spaces is a major modification of the 1974 Conditional Use approval (Exhibits G-232, pg. 1, and
G-234).
As noted above in the 1974 Conditional Use Approval - Parking Standard discussion, there was
no condition of approval regarding the number of parking spaces. There is no evidence that the
reduction in the number of parking spaces was to meet the conditional use criteria of then LOC
50.110. The 1974 application proposed 26 parking spaces and the application was approved;
only 18 parking spaces were constructed, for reasons unknown.
A major modification of a prior conditional use approval occurs when, in part, the modification
“affect[s] any condition specifically placed on the development by action of the hearing body or
City Council” (LOC 50.07.005.4.c). As the 1974 Conditional Use approval did not contain any
conditions about the number of parking spaces, a change in the number of existing parking
spaces today does not “affect any condition specifically placed” on the tennis center by the
1974 approval and therefore the change does not trigger this major modification criterion.
The minor modification analysis thus examines the change in the number of parking spaces
under the “not significantly affect other property or uses” criterion of LOC 50.07.005.4.b.
Reducing Degree of Nonconformity
Regardless of how the number of parking spaces was determined to be the minimum number
for the tennis center in 1974, as discussed below, that number is now nonconforming under the
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numerical method per the Parking Table.3 The existing (and continued) use is an expressly listed
use, “recreation facility” in the Parking Table, and therefore the site is nonconforming to the
minimum number of parking spaces required by the Parking Table. Adding additional parking
spaces reduces the degree of nonconformity.
Reducing Degree of Nonconformity Is Not Evidence of Increased Usage
Appellant argues that reduction of the degree of nonconformity of the existing facility is, in fact,
evidence of future increase in facility usage, because “parking was design[ed] for a 4 court,
baseline facility with 18 parking stalls” (Exhibit G-222, pg. 1).
Staff finds this argument is without merit. Assuming no other changes to the facility than
adding parking spaces, merely reducing the degree of nonconformity of the minimum number
of parking spaces would not itself be grounds to find an increase in facility usage. At best it
would bring the facility up to the minimum number of parking facilities required by the Parking
Table. Staff finds that reduction of a parking nonconformity is not evidence of a proposed
increased usage.
Conditional Use Authority to Reduce Number of Parking Spaces
Appellant argues that under the conditional use criteria, citing LOC 50.07.005.1.a (Intent and
Purpose of Conditional Use Permits), the Commission may reduce the required minimum
number of parking spaces under the numerical method and the Parking Table, to ensure
compatibility (assuming this was a major modification of the 1974 Conditional Use approval
(Exhibit G-232, pg. 2).
Staff assumes the correct citation intended is LOC 50.07.005.3, Authorization to Permit or Deny
Conditional Uses. If this were a major modification of the 1974 Conditional Use approval, which
it is not, the criteria are under Subsection a: (1) meet zone requirements, (2) comply with
special conditions based on use, (3) the site must be physically capable of accommodating the
proposed use; and (4) functional characteristics of the use can be made reasonably compatible
with uses in the vicinity. The types of conditions listed in Subsection b to achieve the criteria do
not include requiring the use to not comply with the other standards applicable, e.g., minimum
parking requirements per the Parking Table. A variance per LOC Art. 50.08 – not a conditional
use – would be needed to approve a development that did not meet another standard. Where
a proposed conditional use, in meeting the other standards, would not meet the conditional
use criteria, then the request for the conditional use permit must be denied.
In this case, the applicant has (apparently) a nonconforming number of parking spaces and the
applicant is proposing to reduce the degree of nonconformity. There is no obligation on the
applicant to reduce the degree of nonconformity, and in proposing to do so, if that would result
3 Nonconforming: “A use, structure, lot, or site feature (e.g., landscaping, parking, etc.; see Sign Code, LOC
Chapter 47 for nonconforming signs) is nonconforming if the use, structure, lot, or site feature was initially
lawfully established, but does not comply with or would not be permitted to exist under this Code due to a
subsequent enactment or amendment to this Code, or due to annexation.” LOC 50.01.006.1.a.i.
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in the modified conditional use no longer being compatible (under major modification of
conditional use, LOC 50.07.005.3.a.iv) or would “significantly affect other property or uses
(under minor modification of conditional use, LOC 50.07.005.4.b), staff agrees that the
Commission could reduce the number of parking spaces requested for an existing conditional
use in reducing the degree of nonconformity to the extent needed to meet the modification of
conditional use criterion.
LANDSCAPING – BUILDING DESIGN STANDARD
Appellant states that the on-site landscaping along the front façade softens the façade and
reflects residential landscaping and natural area appearances (Exhibit G-222, pgs. 4-5).
As noted in the Staff Report (pg. 11), the proposed addition creates a more visually engaging
façade that enhances the center’s overall appearance. The proposal includes new landscaping
areas along the front façade (Exhibit E-008) that is similar to what is existing. Further, as
detailed in the Staff Report (pgs. 13-14), the site is in excess of the minimum required 20%
combined landscaping/open space contributions set asides for major public facilities. The code
does not require a major public facility to be complementary (in design, massing, or with on-
site improvements) with low density residential development. Finally, the 17-acre site (Tax Lot
300) is part of a larger 52-acre natural area, Springbrook Park; the loss of approximately one
hundred sq. ft. of parking landscaping is minimal as viewed in this context (Staff Report, pg. 4).
LANDSCAPING (MINOR OR MAJOR CONDITIONAL USE MODIFICATION)
The appellant states:
• “The on- site landscaping will be destroyed to accommodate the additional asphalt
needed for the requested additional 15 parking spaces, making it look more industrial
and out of character with the neighborhood;” (Exhibit G-222, pg. 5).
• “That meridian has 3 deciduous trees and 1 significant Douglas Fir that fit the character
of the surrounding natural resource land and neighborhood while beautifying the site
aesthetically,” (Exhibit G-222, pg. 5).
• Replacement of landscaping with asphalt, temporary construction in Springbrook Park,
and removal of three trees, is a loss of natural features for the neighborhood (Exhibit G-
222, pgs. 6-7).
• “[A] specific landscaping plan was approved. The exhibit [F-011] also contains the
minutes of the March 26, 1974 City Council meeting establishing that funding of the
landscaping plan was concerning and would nevertheless have to be completed by a
certain time, which comports with Appellant’s contention and reference in Appellant’s
written materials. A change by minor application also violates subsection 4.c above.
(Exhibit G-232, pg. 1).
Appellant argues that these landscaping changes will not meet the minor modification of
conditional use criterion, LOC 50.07.005.4.b (“significantly affect other property or uses”) or
LOC 50.07.005.4.c (“affect any condition specifically placed on the development by action of
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the hearing body or City Council”), and thus requires review as a major conditional use
modification.
The context of review for the site is 17 acres of primarily wooded natural area. The proposed
modifications to the landscaping (approximately 100 sq. ft. of lost area) is in substantial
compliance with the site plan per CU 1-74 (Exhibits E-004, E-006, E-008, and F-011). The current
proposal does not show any tree removal beyond the existing edge of the center and adjoining
parking lot (Exhibits E-004 and E-012).
Subsection 4.b (“significantly affect other property or uses”)
Exhibits E-006 and E-008 show the location of the affected landscaping, and its location within
the tennis center portion of Springbrook Park. Staff finds that the removal of this landscaping
area will not be materially observable from other properties given the existing treed canopy
surrounding the tennis center area, the landscaping modification is not observable from other
properties, and the tree removal in a backdrop of a treed canopy on the sides of the parking lot
will not affect other properties or their uses. Therefore, these landscaping changes do not
“significantly affect other property or uses.” As such, the landscaping changes do not cause the
improvement to be considered a major modification of a conditional use per LOC 50.07.005.4.b.
Subsection 4.c (“affect any condition specifically placed on the development)
As previously noted, the 1974 Conditional Use approval is scant in details of what was approved
as necessary to meet the conditional use criteria. The application stated, “Landscaping of the
facility will offer the right amount of isolation necessary for the neighborhood…” (Exhibit F-
011, pg. 14). The findings did not address landscaping, per se: “the environmental features of
the site provide for buffering of the use without severe damage to the premises or adjacent
residential uses” (Exhibit F-011, pg. 6).
The 1974 Conditional Use approval lacks any condition regarding landscaping. As to the finding,
that is not applicable to the small landscaping area next to the building, as the buffering to the
adjacent residential uses would be the areas between the tennis center and the residential
uses. Finally, Council minutes – after the Planning Commission approval of the conditional use –
are not conditions placed on a development for the conditional use approval.
LOSS OF NATURAL FEATURE (MINOR OR MAJOR CONDITIONAL USE MODIFICATION)
Appellant argues that removal of trees and shrubs is a “loss of a natural feature,” and therefore
the landscaping removal results in a major modification of a conditional use: “cause any
deterioration or loss of any natural feature, process or open space” per LOC 50.07.005.4.b. The
appellant concedes that some removal is permissible, the question is the degree: “Some
accommodation for limited removal to accommodate more reasonable wheelchair access is
understandable, but the wholesale destruction and replacement with asphalt is not.” The
appellant examines the landscaping in relation to the building, rather than the effect of
landscaping removal upon adjacent properties (Exhibit G-222, pgs. 6-7).
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A major modification of a conditional use occurs if the proposed modification would “cause any
deterioration or loss of any natural feature, process or open space” (LOC 50.07.005.4.b).
“Natural feature” is not defined in the Definitions section of LOC 50.10.003.2. To interpret code,
the text, context, and legislative history is examined to ascertain the intent of the Council.
[Siporen v. City of Medford, 349 Or. 247, 262 (2010); State of Oregon v. Gaines, 346 Or. 160
(April 30, 2009); Church v. Grant County, 187 Or App 518, 69 P3d 759 (2003); Clark v. Jackson
County, 313 Or 508, 836 P2d 710 (1992).]
In the Conditioning Authority, LOC 50.07.003.5.a.iv, a similar phrase is used, in which “natural
features” refers to certain trees: “significant trees”, not all trees:
iv. The condition is reasonably related to eliminating or mitigating a negative impact on
natural features or processes or on the built environment of the neighborhood which is
created or contributed to by the proposed development. As used in this section,
"natural features or processes" includes tree groves, stream corridors and natural
drainage ways, significant tree(s), wetlands, and other natural areas.
Most importantly in interpreting text regarding a minor modification of conditional use, the
conditional use criteria provide the overarching framework, for a minor modification criterion
should not have greater effect than the conditional use criteria itself. The lens of “loss of
natural features, process or open space” should be reviewed within the context of LOC
50.07.005.3.a.iv, as the relevant criterion for conditional use review:
“iv. The functional characteristics of the proposed use are such that it can be made to
be reasonably compatible with uses in its vicinity.”
The loss of a “natural feature” must not result in this original conditional use approval criterion
no longer being met.4
The Commission is called upon to interpret “natural feature” as used in the conditional use
modification context. Appellant’s interpretation would mean any vegetation removal on a
conditional use site is a major conditional use modification. Staff suggests that in this context,
“natural features” as used in “any natural feature, process or open space” has a multiple,
collective quality that creates a prominent natural habitat, akin to a natural process or a large
open space, such that its loss would affect the site’s “reasonably compatible with uses in its
vicinity.” The landscaping modification and limited tree or shrub removal does not constitute
the loss of the natural features of Springbrook Park, such that the confined tennis center site is
4 Staff also reviewed the use of “natural features” used in LOC 50.10.003.2, “Stream Corridor,” LOC
50.05.007.5.j (Lake Grove Village Overlay District), LOC 50.10.005.6.ii(1)(f)(a) (Sensitive Lands, Resource
Enhancement Projects), and LOC 55.02.094(1) (Tree Code, Conditioning Authority). However, given the
relationship between minor modifications of conditional uses, and the general criteria for conditional use
approvals, staff does not find the other references to “natural processes” to be of greater significance to the
context of “natural processes” in the minor modification criteria relating to conditional uses.
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in danger of not being “reasonably compatible with uses in its vicinity,” in the context of the
site and its location within and surrounded by Springbrook Park.
TRAFFIC / VEHICLE BEHAVIOR
Appellant states that there are existing traffic issues of speeding traffic, failures to stop,
excessive queuing, and noise of starting vehicle engines (Exhibit G-222, pg. 6). Appellant seeks
traffic signalization at Rainbow / Boones Ferry Road intersection and internal neighborhood
speed bumps.
Staff finds that these conditions are not evidence of the expected impacts of the proposed
improvements, in regards to the minor modification of conditional use criteria (LOC
50.07.005.4.b) or the Conditioning Authority requirement for mitigation (LOC 50.07.003.5.a.iii)
but, by its terms, is about the existing background condition. The minor modification criteria
and ability to impose conditions of approval must be related to the impacts of the proposed
development [LOC 50.07.003.4.g.ii, LOC 50.07.003.14.d.ii (standards and criteria are applied to
the application)].
See discussion of lack of traffic impacts from the proposed improvements in the Staff Report,
pgs. 16-17 and Exhibit F-008.
TRAFFIC STUDY REQUIREMENT
Appellant argues that the ITE Trip Manual fails to address the LOS D traffic study trigger and
that a traffic study is required by LOC 50.07.003.1.a.iii(2)(e)(ii)5 when a nearby intersection --
Rainbow Dr. / Boones Ferry Road -- is at LOS D (Exhibit G-222, pg. 13).6
A traffic study is to “ensure that the existing and proposed transportation facilities in the
vicinity of the proposed development are capable of accommodating the amount of traffic
expected to be generated by the proposed development” [LOC 50.07.003.1.a.iii(1)(a)]. Absent
evidence that the proposed development will generate traffic, the City Engineer need not
implement the traffic study requirement. For example, assume the site development proposed
was to increase the amount of landscaping in the parking lot, with clearly no traffic generation
potential. A traffic study would serve no purpose as no mitigation could be required to address
either a nearby LOS D intersection or the condition of an interstate freeway on-ramp. (LOC
50.07.003.5.a.iii). Staff interprets Subsection 2 in light of its purpose under Subsection 1: some
traffic increase must be generated by the proposed development as an initial trigger to require
a traffic study. The City Engineer found, based upon the ITE Traffic Generation manual, no
traffic generation was expected and hence the application could be submitted without a traffic
impact study (Exhibit F-008, pg. 2).
5 Appellant cites “50.07.003 a. (2) (e) iii.” There is no such citation.
6 Appellant also states that that a traffic study is required when an intersection is at LOS F (Exhibit G-222, pg.
13). There is no such traffic study trigger in LOC 50.07.003.1.a.iii(2).
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Further, a traffic impact study is a submission requirement. It is not an approval “standard or
criteria” under LOC 50.07.003.14.d.ii.
If the evidence shows that there is traffic generation, the Commission may impose conditions of
approval to mitigate that amount of traffic that the evidence shows, under LOC
50.07.003.5.a.iii, regardless whether or not a traffic study was submitted.
CHARTER PROVISION
Appellant presents the following arguments regarding the Charter provisions:
• The meaning and applicability of the Charter provisions found in Chapter X, Sections 41-
43. (See Staff Report, pgs. 6-7; Exhibits G-223, pgs. 2, 8; G-232, pg. 1.)
• Temporary construction zone outside of the area determined to be the “existing indoor
tennis facility and adjoining parking lot” per Section 42 is not permitted (Exhibit G-222,
pg. 2).
• “[T]here is natural vegetation and a smaller caliper tree within the proposed
[construction] zone” / “there is a variety of natural plant materials and a small tree that
are visible to the naked eye within the 10-foot zone for construction” (Exhibit G-222,
pgs. 8-9).
• Removal of the three trees is not permitted (Exhibit G-222, pgs. 6-7).
• DRC has no authority to grant any exception to the Charter (Exhibit G-232, pg. 2).
Land Use Regulation
A threshold question is whether the provisions of Sections 41-43 are “land use regulations” to
be applied to the review of applications for compliance with land use standards and criteria. For
the following reasons, staff finds that these charter provisions are not “standards and criteria”
under the Commission’s review for land use compliance per LOC 50.07.003.14.d.ii.
LOC Ch. 50 is the City’s principal “land use regulation,” as that term is used in ORS 197.015(11):
“Land use regulation” means any local government zoning ordinance, land division
ordinance adopted under ORS 92.044 or 92.046 or similar general ordinance
establishing standards for implementing a comprehensive plan.
LOC 50.01.002.a states the purpose of LOC Ch. 50 Community Development Code:
“This Code has been drafted in accordance with the policies set forth in the
Comprehensive Plan for the City of Lake Oswego. It is the general purpose of this Code,
therefore, to provide the principal means for the implementation of the
Comprehensive Plan. To fulfill this general purpose this Code is intended to: ***”
The review criteria for minor developments (whether major modifications or minor
modifications of conditional uses) is found in LOC 50.07.003.14.d.ii:
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A minor development shall comply with:
(1) The requirements of the zone in which it is located;
(2) The development standards applicable to minor developments;
(3) Any additional statutory, regulatory or Lake Oswego Code provisions which may be
applicable to the specific minor development application, as provided for in this
Community Development Code (LOC Chapter 50), Stormwater Management Code (LOC
Article 38.25), streets and sidewalks chapter (LOC Chapter 42), and the tree cutting
chapter (LOC Chapter 55); and
(4) Any applicable condition of approval imposed pursuant to an approved ODPS or
prior development permit affecting the subject property.
In other words, in reviewing the land use application, it is not within the scope of the review to
determine if all non-land use regulations are met. It is only to determine if the applicable
statutes, regulations, and code provisions that are applied to land use regulations or regulations
that implement the Comprehensive Plan are met. For example, land use review does determine
whether private restrictions placed on land by owners of land are met, e.g., CCRs; land use
review does not enforce CCRs.
The Charter is an enactment by the voters of Lake Oswego, and as to the relevant provisions,
restricts the City’s development of Springbrook Park in the same manner as a private restriction
imposed by the owners (voters) upon land they own (“park land owned by the City of Lake
Oswego which is commonly referred to as "Springbrook Park", Section 42) by the entity through
which they act, the City of Lake Oswego.7 Staff notes that Section 43 does state that the City
shall not “allow any person to construct or develop … within Springbrook Park.” The use of
“allow any person” and “develop” suggests that it has broader applicability than as a restriction
upon the City in its proprietary capacity, but rather reaches to the City’s regulatory role.
However, “Springbrook Park” is defined as “park land owned by the City of Lake Oswego…” and
Section 43 restricts what the City, as an entity shall and shall not do. Thus, on the threshold
question staff finds Sections 41-43 are not “land use regulations,” and therefore are not
“standards and criteria” to which the minor development application is to be reviewed.
The Commission is not called upon to “grant an exception to the Charter” by applying land use
standards and criteria. The scope and effect of the Charter provisions, as non-land use
7 There are other charter provisions, such as Section 46A, that is in the nature of a land use regulation, because
it reaches beyond ownership by the City but applies to lands within the jurisdiction of the City not based on
ownership, restricting a specific entity.
Section 46A. Maximum Height of Structures in Residential Areas.
The City of Lake Oswego shall neither construct nor allow the construction of any structure which is more than
50 feet in height within a residential zone, except for the construction of a single symbolic appurtenance of a
structure to 75 foot height. The City may, however, construct or allow the construction of a lighting structure
which is more than 50 feet in height in a public park or school sports fields located in a residential zone. ***
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regulations, would be addressed in a different forum. The Commission’s review is limited to
review for compliance with land use regulations.
Effect of Section 43 Regarding Trees and Vegetation In Tennis Center or “Springbrook Park”
If the Charter provisions are land use regulations, which staff submits they are not, the Charter
provisions are not violated. Section 43 prohibits the City from taking the following actions:
1. The City cannot construct an Athletic Facility or parking lot in Springbrook Park (outside
of the existing tennis center and parking lot).
2. No tree in Springbrook Park may be removed in order to construct or develop any
Athletic Facility or any parking lot.
Section 43 permits the City to:
3. Remove (temporarily or permanently) non-tree vegetation in Springbrook Park in order
to construct or develop any Athletic Facility.
4. Remove trees that are outside “Springbrook Park” in the tennis center site, such as
inside the area of the existing tennis center and parking lot.
“Springbrook Park” Does Not Include Tennis Center
Even if Sections 41-43 are “standards and criteria” to which the minor development application
is to be reviewed under LOC Chapter 50, which staff finds they are not, “Springbrook Park” as
used in Sections 41-43 does not include the tennis facility and parking lot 8:
The term "Springbrook Park" does not include the City of Lake Oswego existing indoor
tennis facility and adjoining parking lot (emphasis added).” Section 42, “Springbrook
Park.”
As discussed in the Staff Report, pg. 7:
As shown on Exhibits E-007 and E-008, all proposed permanent improvements
(including the addition, new parking spaces, and tree removal) are contained within this
boundary and are in accordance with City Charter, Chapter X: Sections 41-43.
Note: Building footings that extend beyond the walls are permitted as being within the
“existing tennis center.” See Exhibit F-011, pg. 2, showing footings for existing facility.
Trees in Tennis Center Parking Median Are Not In “Springbrook Park”
Even if Sections 41-43 are “standards and criteria” to which the minor development application
is to be reviewed under LOC Chapter 50, which staff finds they are not, trees within the tennis
center site are not subject to the “no tree removal” provision of Section 43 because, again, the
tennis center site is defined by Section 42 to not be within the scope of development
8 “Whether or not this outline [Exhibit E-004] is, in fact, the outer boundary of the charter area that is “the
existing tennis center and adjoining parking lot” is not relevant to this review; the existing developed area of
the tennis center, walkways and adjoining parking lot are within “the … existing indoor tennis facility and
adjoining parking lot.
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limitations for “Springbrook Park.” Thus, the three trees proposed for removal within the
parking landscape median are not subject to Section 42’s “no tree removal” prohibition. Staff
finds that no tree removal beyond the three trees in the parking lot landscape island is
requested by the applicant or approved by staff’s decision.
Exhibit E-012
Construction Activity in “Springbrook Park”
The appellant states that the Staff Report (pg. 7) errored by noting temporary use of
Springbrook Park beyond the “City Charter Chapter X” boundary shown in Exhibits E-004 and E-
008 is allowed with the approval of tree/Sensitive Lands protection measures and an erosion
control permit (Exhibits G-222, pgs. 8-9, and G-232, pgs. 1-2).
Even if Sections 41-43 are “standards and criteria” to which the minor development application
is to be reviewed under Chapter 50, which staff finds they are not, Section 43 does not prohibit
protection of trees in “Springbrook Park” from adjacent construction; Section 43 prohibits tree
removal in “Springbrook Park.” Further, it does not prohibit construction activity in support of
construction of the tennis center outside of “Springbrook Park,” e.g. erosion control; it prohibits
constructing the actual Athletic Facility in “Springbrook Park.”
LCDC GOALS
Appellant cites Goal 5 Natural Resources, Scenic and Historic Areas, and Open Spaces as
support of the argument that the vegetation within Springbrook Park must be “preserved.”
(Exhibit G-222, pgs. 8, 10). Appellant argues that the Tree Code (Exhibit G-222, pg. 11) and the
Charter provisions (Exhibit G-222, pgs. 9-10) implement LCDC Goal 5:
“Chapter X clearly implements Goal 5 and the 1978 Comprehensive Land Use Plan
providing a decision of protection, preservation, and passive public access and
recreation of a discrete area of approximately 52 acres as a park open space that is a
Distinctive Natural Resource Area. It expressly prohibited active recreation through
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development of Athletic Facilities in Springbrook Park including the existing indoor
tennis facility and adjoining parking lot.”
Goal 5 requires the City to inventory natural resources, identify conflicts in preservation, and
establish a program for balancing the conflicts. The Charter provision did not go through the
Goal 5 process (then OAR 660-016-000 – 0010),9 and there is neither evidence in the record nor
is staff informed that Sections 41-43 were then and are now an element of the City’s Goal 5
compliance.
Goal 5 is not directly applicable, as once a comprehensive plan is acknowledged, then the
comprehensive plan policies control. Baxter v. Monmouth City Council, 51 Or App 853, 858, 627
P2d 500 (1981) (once LCDC acknowledges a comprehensive plan and implementing ordinances,
land use decisions are governed by applicable criteria in that plan and those ordinances); Byrd
v. Stringer, 295 Or 311, 316–317, 666 P2d 1332 (1983) (statewide planning goals are necessarily
met if the county’s land use decision comports with the acknowledged comprehensive plan and
implementing ordinances); LOC 50.07.003.14.d. The City has complied with Goal 5 by adopting
the Healthy Ecosystems Chapter of the Comprehensive Plan, and implementing that chapter by
its Sensitive Lands regulations.
LOC 50.05.010
1. OVERVIEW
a. Purpose
LOC 50.05.010 creates the Resource Protection (RP), Resource Conservation (RC), and
Habitat Benefit Areas (HBA) overlay districts to:
i. Protect and conserve wildlife habitat;
ii. Protect and improve water quality;
iii. Control and prevent water pollution for the protection of public health and
safety;
iv. Comply with federal laws including the Clean Water Act and the Endangered
Species Act;
v. Comply with State Land Use Goal 5; and
vi. Comply with Metro’s Urban Growth Management Functional Plan.
The City protects “significant tree groves” through its RC District standards. LOC
50.07.004.8.a.vi(1). The protected “significant tree groves” are mapped on the Sensitive Lands
Map, and shown below in dark green. The area comprising the tennis center is not within the
RC District. Hence, the tennis center area is not protected under Goal 5 (in fact it appears to be
excluded as a developed area) or the City’s implementing Comprehensive Plan policies and
Sensitive Lands code requirements. At least to the Appellant’s specific argument, since the area
9 660-016-0000 Inventory Goal 5 Resources
660-016-0005 Identify Conflicting Uses
660-016-0010 Develop Program to Achieve the Goal
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in question is outside of the Goal 5 protected natural resources, the Tree Code is not a land use
regulation implementing Goal 5 for the subject trees.10
US CONSTITUTION, AMDT 14: DUE PROCESS AND EQUAL PROTECTION
Appellant argues that “[w]ithout being able to raise the tree code regulations as a development
standard at the development hearing, the neighbors are left without a meaningful hearing for
citizen input and advocacy for natural resource protection that has been provided to them
under the aforementioned statewide goals and Comprehensive Plan,” and that this is violates
the 14th Amendment’s requirements for “fundamental procedural fairness and is without
reasonable justification in the service of legitimate governmental power in violation of the due
process clause of the US Constitution” (Exhibit G-222, pgs. 10-12). Appellant argues that the
10 The Tree Code does not implement the Healthy Ecosystem chapter, Urban Forest and Vegetation section of
the Comprehensive Plan:
“B. Update and maintain the Tree Code to emphasize retention of overall tree canopy and to maintain the
health and diversity of the urban forest, while balancing private property rights with community
aesthetics and livability. (Note: The Tree Code is not a land use regulation but contains standards that are
applied to development.)” Recommended Action Measure B.
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tree removal criteria favors developers over citizens (albeit individuals who are developers are
also citizens).
“This scheme has been interpreted to allow the unequally application of the law to favor
development rights over citizen rights in the preservation of natural resource trees and has
resulted in the public reporting to the City Council of the removal and destruction of
approximately 3000 trees over these last 3 to 4 years, a small urban forest. Like the old Pac
Man game, they are swallowed piecemeal, 1 development application at a time removing a
tree here, 100 trees there, until there are none. This denies citizens, including the neighbors
of Rainbow Terrace, the equal protection of the law as opposed to developers, including the
City, in violation of the equal protection clause of the US Constitution” (Exhibit G-222, pg.
11).
First, as noted, the trees on the tennis center site are not part of the RC District and are not a
Goal 5 natural resource protected under the Sensitive Lands standards. Second, as to the
procedure for considering tree removal in conjunction with development, LOC 55.02.035(1)
adds the tree removal criteria as part of the minor development criteria:
“If a major or minor development permit applied for pursuant to LOC 50.07.003.15 or
50.07.003.14, respectively, would require or result in tree removal and/or a tree cutting
permit as defined in this chapter, compliance with LOC 55.02.080 shall be a criterion of
approval of such development permit. Tree removals in conjunction with a major or minor
development permit shall be considered in conjunction with such permit and shall be
subject to the application, notice, hearing and appeal procedures applicable to the
proposed major or minor development. ***”
Third, as to whether the tree removal criteria are without reasonable legislative purpose, as the
Commission is aware, the current criteria of LOC 55.02.080 is a successive refinement of the
tree removal criteria dating back to 1994: Ord. 2830, Amended, 10/01/2019; Ord. 2721,
Amended, 07/19/2016; Ord. 2260, Amended, 09/05/2000; Ord. 2221, Amended, 01/18/2000;
Ord. 2097, Amended, 12/20/1994. It balances development and protection.
Fourth, staff rejects the “Pacman” analogy as a constitutional trigger for due process. The
Council may distinguish between different classifications of trees and afford some classes
higher protection than other.11 A reasonable legislative purpose exists to give trees that are not
part of a Goal 5 natural resource a lesser level of protection than Goal 5 natural resource tree
11 “As long as the City's distinction has a rational basis, that distinction does not violate the Equal Protection
Clause. This Court has long held that “a classification neither involving fundamental rights nor proceeding
along suspect lines . . . cannot run afoul of the Equal Protection Clause if there is a rational relationship
between the disparity of treatment and some legitimate governmental purpose.” We have made clear in
analogous contexts that, where “ordinary commercial transactions” are at issue, rational basis review requires
deference to reasonable underlying legislative judgments. Armour v. City of Indianapolis, 566 U.S. 673, 680-
681, 132 S. Ct. 2073, 2079-2080, 182 L. Ed. 2d 998, 1005 (involving tax statute but principle applies
broadly)(internal citations omitted).
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groves. See LOC 50.05.010.5.b.iii (“no development shall be permitted within the RC protection
area or HBA protection area.”) Finally, contrary to Appellant’s contention, the “significant tree”
and “alterations to the distinctive features or continuity of the neighborhood skyline” use the
neighborhood context to establish the line below when further tree removal is not permitted,
absent “no reasonable alternative exists to allow the property to be used as permitted in the
zone.”
TREE REMOVAL – “SIGNIFICANT TREE”
Appellant argues in regards to the tree removal criteria of LOC 55.02.080 that the three trees
are considered by the neighbors to be “significantly important to be worthy of attention, which
meets the ordinary and common definition of ‘significant.’” The appellant then states the
qualities of the trees that, in his opinion, make the tree “significant” (Exhibit G-222, pgs. 11-12).
A “significant tree” is a tree that has certain specific elements: “a healthy, noninvasive tree over
15 in. DBH that is considered significant to the neighborhood due to size, species, or distinctive
character, or the only remaining tree on a property” (LOC 55.02.020). The significance to the
neighborhood must be due to one of these qualities, which has been described in numerous
prior tree removal decisions (for example, Red Dog Investments, AP 20-02, Staff Report):
Size: “The question for this element is whether any specific tree that also meets the first
three elements is significant to the neighborhood because of its size. The Commission
has interpreted this element to require examination of the neighborhood in which the
specific tree is located: a 45-inch tree is significant to a neighborhood where the general
range of sizes of other trees is substantially smaller, such that the 45-inch tree would be
substantially taller or bigger than most other trees in the neighborhood. However, a 45-
inch tree would not itself be significant to a neighborhood where it is within the general
range of sizes of other trees and is not substantially taller or bigger than most other
trees in the neighborhood. For a tree’s size to be “significant” to the neighborhood, its
absolute size is irrelevant.”
Species: The question for this element is whether any specific tree is significant to the
neighborhood because of its species. Similar to the Commission’s interpretation
regarding (a) above, the Commission has interpreted this element to require
examination of the neighborhood in which the specific tree is located to determine
whether the species of the tree proposed for removal is “significant,” which the
Commission interprets as not generally found within the species of trees in the
neighborhood or a rare tree species within the neighborhood canopy, that contributes
to defining the neighborhood character and aesthetics. A Douglas fir proposed for
removal in a neighborhood of Douglas firs is not unusual or “significant” to the
neighborhood because of its species.
Distinctive Character: The question for this element is whether any specific tree is
significant to the neighborhood because of its distinctive character. The Commission has
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interpreted this element to require, as distinct from size or species, that the tree
provides distinctive character to the neighborhood, i.e., by being in a prominent location
or uniquely visible at a prominent neighborhood location, such as a prominent street
corner.
Staff applied these elements to the three trees and found none to be a “significant tree” given
the context where the trees are located. See Staff Report, pg. 18.
STORMWATER MANAGEMENT
Appellant argues:
• The trees accomplish the reason stated for their removal – stormwater management –
and therefore the trees should not be removed:
“The only reason for the tree removal is to accommodate the design to meet
surface water run off for the additional space. The trees themselves also absorb
surface water run-off into the meridian and also absorb carbon pollution from
the fossil fuel cars in the parking lot. Applicant has not proposed any equal
replacement for these guardians against air pollution. Under a conditional use
review that includes existing conditions, the applicant has the burden of proof as
to why the conditions should not remain and an alternative design to save the
trees could not occur.” (Exhibit G-222, pg. 10).
• An alternative stormwater system can be required under the major modification of
conditional use approval criteria of LOC 50.07.005.3.a, and specifically through a
condition “to manage environmental effects” per subsection 3.b.i. (Exhibit G-232, pg. 2).
Stormwater Management Code
Based upon the amount of new and redeveloped impervious area, the applicant is required to
comply with the “small project” standards in order to manage the stormwater from the new
and redeveloped impervious area. (Staff Report, pg. 15). An applicant for a “small project” is
not required by the Stormwater Management Code to retro-design stormwater management
for that portion of the existing site that is not being altered.
To address stormwater management for the new and redeveloped impervious area, an
applicant is to comply with the standards and methodology of the Stormwater Management
Code, LOC Art. 38.25. LOC 50.06.003.3.b. As stated in the Staff Report, pgs. 15-16, the applicant
has demonstrated that it is feasible for a stormwater facility to comply with the applicable
standards for the new and redeveloped impervious area.
Stormwater Management of Existing Improvement – Scope of Conditions for Modification of
Conditional Use
The issue before the Commission is whether the proposed modifications comply with the
applicable minor development criteria, including the Stormwater Management Code, and
Page 25
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
whether the minor (or major) modification of conditional use criteria are met for the proposed
improvements. If the stormwater management for the existing improvements is
nonconforming, the applicant has a right to retain the nonconformity, per LOC 50.01.006.2.a.
The focus is whether the stormwater requirements are met for the new development. (An
applicant may elect to reduce the degree of nonconformity, but that cannot be compelled.)
Impose Stricter Standards Because City is Applicant
Appellant argues that the City should be held to a different standard as an applicant than other
developers, and that the Commission should, using the Conditioning Authority of LOC
50.07.003.5.a and b, require the City, as applicant, to seek alternative engineering solutions to
address water runoff than tree removal. (Exhibit G-222, pg. 12).
The standards and criteria are to be applied according to their terms to every applicant,
irrespective of the identity of the applicant.
“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. The order shall also contain or incorporate by reference any conditions of approval
deemed necessary or appropriate by the hearing body***” (LOC 50.07.003.4.g.ii).
Conditions of approval are applied to mitigate the impact of the development when needed,
not to distinguish between the identities of the applicant. LOC 50.07.003.5.a.iv (“iv. The
condition is reasonably related to eliminating or mitigating a negative impact on natural
features or processes or on the built environment of the neighborhood which is created or
contributed to by the proposed development.”)
SOUND LEVEL FROM PARKING LOT
Scott Hicks testified that there would be a 3 db increase in the sound level resulting from cars
parking along the west curb line in the parking lot and people conversing at their cars parked
along the curb line, and that a 3db increase corresponded to a 23% increase from the 60 db
conversation sound level (Exhibit G-230).
The amount of conversation in the parking lot is expected to decrease, as persons have their
pre- and post-game conversations in the lobby (Staff Report, pg. 14). Thus, while there may be
a perceptible difference in the sound level of a conversation that is occurring in the formalized
parking spaces along the curb line as contrasted from a conversation occurring at the parking
median parking spaces, there will be less conversation overall, and hence less noise overall, as
heard from the rear of the residences at 14444 Doris Ave. (Finnerty) and 14480 Doris Ave.
(Hicks).
In approving the tennis center in 1974, the Planning Commission’s finding was that “the
environmental impact of the use as proposed is considered less than the impact on adjacent
residential properties that would otherwise result with the residential development of the site
Page 26
503.675.3984 380 A Avenue PO Box 369 Lake Oswego, OR 97034 www.ci.oswego.or.us
in question” (Exhibit F-011, pg. 6). In this case, due to the vegetative buffer it is not possible for
a person to get closer than 30 ft. to the property line; in most cases the abutting neighbor
would recreate in their back yard much closer than 30 ft. to the property line.
The question to the Commission is whether the 3 db sound level increase from conversations
occurring 30 ft. away from the property line, and then the distance from the property line to
the abutting dwelling would “significantly affect other property or uses.” The “affect” is
measured against the assumed expected sound from a residential use, as that is the impact that
other occupants of residential properties in the neighborhood bear from nearby residential use.
EXHIBITS
All exhibits are available at the following link: http://www.ci.oswego.or.us/planning/lu-20-
0027-request-development-review-permit-construction-additions-tennis-center-and. Go to the
“Public Record of File” link on the right side of the screen.
�k, So �oti�� l'2�1��
d�� "l �� �i�Z�1Cl
+1..vo v�9 4
o y �t. t bS`� ��2 7���-
� THE LAl� E OSW� G � � � � E
. �-�so ��,, �-r �s z
1968
i'NE Ck�,ART�R
���
�HE �Et�1ERAl � R�Ih9At�l�ES � F T�IE C9TY
� F LAKE �SWEC�O, � RE�OIy
�uk� l�sh �d by � �d �r of d� e � �#� �ou � ci �
�
��. ��
. `°y`'• 'Lv:aii�G 5i1.I1�
=�`�E�- Abbreviated Designatio�
`���;����.�?��.^1 t
r�.`._ ��le—fam.i�y low density �_�0
`� i;�;�,ie—family low density R�15
�:'-n�,icmfaP�aily low density R-20
-:�i..�-�.�-�fa�?�1}r suburban S�Z_i{9
���r�gS.e—fa:nily suburban S1�_15
;'i.:gle--faanily suburban SR�ZQ
"�.ng"Le—family �—�.5
T3uplex DR-3e75
P,c�*��.��x BR-3
�` ���� BR�2o�
: ; ._�sf�r��.Iy- ` . ���
�...i--_-�-:.� Ntiai��.mfamily I,r�t
�.�.�.- . L"+��„�� ��bana �J�.
._ - • ...�.�.
�:;�:..a'��b�����
_ ' ti .� N�
- . `.._ ��
�:. ,_ _•s�. ��
�,,:• _ _ ...^..3�
<.. _..;�ria�,
�� M
_. �,s: � ri�.l pam�:
A!P
� _ � . � ,: ��Rit �°�velopment ���
. _. a <_ a ; r;_'.g Sec. 5; 1.'�-21�61. �rd. ii*�� 1.5�2, ���, �.q 6�y7-���.) �
•6. _'°' Z��n�ztg map.
� � �'i�w location and boundaries of the zones designat�d in LOC SC�.€�40
�:: �»=-`��;,' �s�ablished as shown on the map entitled "Zoning Map of the Ci�y
<° � k, ;°':.. �s�aego" dated with the effective date of this title and signed by
�h� P3,ayor and City Recorder and hereafter referred to as the 1°zoning map."
(2) The signed copy of the zoning map shall be maintained without change
:�t� fY le i.n �h� office of the City Recorder and is hereby made a part of t�ais
�'�.��.�:, (J�d. No. 781, Sec. 6; 11-21-61.)
CONDITIONAL USES
50�116 Au�horization to grant or deny conditional uses.
Uses designated in this title as conditional uses permitted shall be
pe�it��d or �nlarged or altered upon approval of the Planning Commission
�n �ccordance with the standards and procedures specified in LOC 50.110 to
50.16p. In permitting a conditional use the City may impose, ir� addition
;:a t�.� regula�ions and standards expressly specified by this ordinance,
��her conditions iound necessary to protect the best interests of the sur-
r�unding property or neighborhood or the City as a whole. The conditions
::,�y i�clude requirements increasing the required lot-size or yard dimen-
saons, controlling the location and number of vehicular access points t�
the property, increasing street width, increasing the number of off-street
n�r�:ir�g ar loading spaces required, limiting the number of signs, limiting �
:�� coverage ox� l�eight o� buildings because of obstruction tn view or re-
�u���LmrE of li�ht or air to adjacent property, re-
��:��s. i-17-75; hb)
�on
'':�a�.�i� ZON TNG 5�:s o YS�l
� � :4�,� �i�ht��sb��o�r.��n� �g�r�.�a�s� �+r��f ���rc������.�� �s�e�.r�s v�e;v::��.��;� t� a�n,�: ;�. .� ,°� �
.,..... _
�,r r�: ��� �r mr��n�.��� ��� p�c�pe��ty ir� � �P������e� �at k�se��u�.� �ri�"-� �h.., .:�:� ;��° ,:.
iri^ ���::s �otd req+s3.��ne�at� ��d�cs� ��,�,�,�h �aroy �'a��.a�re ea�lr��,�s�a�a�� o� �3�.�a� '.��T �;�
t,��.� o��o �ha�.l ka� r�u.���ad �a,� t9�� C��.tiy r��a� s�e�u ��+n���ia�s�� �.r�p�;��e C'r..:,,� F� �
��:�� ��;p�s�s�a�rs �� ��n����ti��a raff ����5 �se�g �� �ltex.��.��a� �� �t��_:�'-sA: �; �.v..
�::�«� �l�s�iPi�d aa c�o�a¢i.�tioa��� exfsting p�i�r t�n t�s�s c�B"e�tiv� d��� �t' ��-i::,
aa�R�in��a��9 ah�1g en�P���n �a �P�e r���1�tf��s p�arta��.�e�g t� �c�e�e�d�t�.��:a�. +.����-
I�` t��: sft� i� �'o�o�d ir��ppr�a�ari�t<, ��� ��roe urse ��qua�ta�ia �3�� G:=r•�p,z::_�a�� � �r;,: ,
ef�,�y �g���oval DP the �r���1.�t�.a��t��. tas�a (llxe90 N�n i�'1� Se�a �f� 3..�.,?�..� .y
-�:',��.�� A�spAi���i��s f�r Cssr,ai�t.a�z��'�. i9��o
�, r•:s��a��� Por �m�a�i�.t�.+��a�]l s��� a� m�c3���.c���.ra� a��' ��, �x�,�.��;�r �-,:�.,,13,' � -:-,. .
� . �s;,�- fi�� an�.t��$.�d b� s� �r��e�f�;, �a���a �a �±.�� ��af:���y��� ��•.��a:. :��� i . . - .
, ..��,?�,5�;� cubth ��e �➢.ne°��a��� ��i��y¢�r• �'�€�x���u� ���� pr3�� i� �r�� 3��.:=;,s,.�`.
: ....,.:�w��.e�rt r�aet�au�g �t a�3a�.ch �.�a ��roo����� i�� t� �x, +��e���t�����. 1'�Y� ��:�3: �.;:.�,:'.
c�<�t� ��a�mi� �9�a�a� te� �G�cs ��.�nero�S�g ���r�tn3���.e��s �i3 pr�ivf+d��d �.rs L�l� ���o� ,��. .<� _
� ���:'� �;�y ��s� �e�� �st�������e# �te���c��s�a.", �� L0� 5t3ofl2�a t,�3�o P�a� "'��.; . �:.,
.- �T, .'��ao t7-.,�0 1'd�t':• .18.F.%Y9 J��°.• L°y 'd7msa"'C%�9c U'��im I�JC�`h.e .F:s7i��fl �.'.':C'io .�R �` .. � .���
'� :� 3'� 6�a����.� �ie�s�i�eq ��o � �;�r:��a.�t�,��aa� c���e
>•��'a��� ��t_.�e�g �aa� � ���a��y�. �m� a r��et���a.�e���. �:���, r�� ��c��e.osa� �; ,_.� -�d�:� �.
,, .�� ,:,.:��.1 b� �«�a���J�±�a� by the �.l,�r��nia�� L`��r�?rsx�sa��?�o �� �s ���1�.�� :����y.-;<3 �,�e. ;
� ���.�^� �'�,�v d��a ��'���r 1�.��.ate�g �rs�' tf�c �sppg����;�,au�. 'F�es C:�m� Ei�e�;:vs��.._ _ .��A g3�1�
�ic°�:i.�.c� ��' �4�� he�v�x�,� �.uro �fie �'�11��.i�v�g �ns���s��rs
rZ,} E;� ��blf�at3.av� o�' � �i�t.x�� in r� �t�s,��p�p�r af �e�te�r�� �Ij:c��:.��r:-::c :;.:. !`_`;e.
�:��y :-a�,t le�a 't��� P�ur d•rsv�� �,r�r mnrc th�ro �ightanw �fe�� p��.�,c t:: ;;;� c:��;� ; '
:�3e ����.i�tge
�2; 8; ��n�i�s�� r�o�.�c�� �,y m�i3 ���t lees� +�h�� teT �9�y�. pr��,u .� ,.,._ �t ,�'
�-,e��c.i�u� ltxs the p��ap��sxtgv �av�ne;r� a�i�t!h�,u� t�e c�x•�� �r���.�s��v� ��y Ya����;� p����i.. ,�. a
��aa� ��;fl ���idre�f �e�wt r��+�n� �:�°re �x:�����r �m�a�ro�a,�is� �a� t�v9 p�r�a��e::�sr �b�a,��;;. -,��
c�:��r�� for th�a ��.�x�p��e the a��st�� �o�d ��idre�� �� mw�ve�a �� �h�au� �p�� t:�•� x�.:�-.x�i�
.,f t��e Co�nty A��o��a�r. F��.lc�ra to aeu�d notica ��o � per�an �sp�ci��.��d :'_:�s �`-t �
� ;ctsc,�� �ar f��.Ilan�e �� � pe��mra �� �eceive tha e�o�gce s��lY n�t �e��:v.E:.�:.. ..� - :;�+
��bt:c��d�.�sga �a� �c�sa�¢�e+��i��a w�.th t6�e a�pl§.cct�otro fcrr r, c�n��It��+nre� �a��;o "O�z'� i��°.d
`�919 Seco �2; 1�-21�6Ye�
5�.1�,� Re�e�� rsf the Fr�a�°ir�g b� P]t�arve�ie�g C�ammi���erroo
�"�a PI�Pa��.�ag C�mm3,���.a�� m�� r��a�� � he�ri�g c��a e� a�eq�seat S�or a �oe��`.ti::� ai
����, f� �ar�ie� t�, o�t�3.� ���at3.c�r�a�. :�r�9'oPm�,�l��t� or ��, :��r�r� �'ust�rox ����..�a d.�}�n
v`�P�e� prap�a��y �oa��va�� �x por�v�a��s a��,�a .��: d�o�s.�le� �rn�+ 3�e �t�stase�te� �e� °�y.� ��-;_
�o�aci ��ndutfo�ro�Y ���aa Up�c� re�ca����o� t��r �hi� pu�pa�d �ha �Cvr��*i��.;.��� :�3���1
��rse��srv�e �he t��� a�� ��i�a �uhe� the he�ri�ug su�tll be r�gt�m�ai. �0��l. N�ao 7819
5�s�a g3� P1�21�6Yo)
c�}..�.�0 Nrs�i��cati�rn mP' nc���no
iha Gfty �io��i�rd�� �P��g� r��t.��y the �r,p�.ic�iarot �'�r a caonditiars�� �:�� s�� w�'t�.t��
�; tha City°� �cti�v� �al�h3n �ive eieyr� mY'tar 4:�e deci�iss� haa bear� r�rc�j1 .���i„
'q���io Nno 7819 SOCe 9�19 12�21—�61a)
29�0
'::' �.6� Zt7NTPlG
;��s9�.'_� �tand�r�s govexn.fng cs,�ditia��l c��a�.
ri ����3.�ic+nal use �hall comply cu.��h �ha at�n¢Serrr9� of �a��r z�a�� i73 a,:;��'i �.
�.�a��«y��i �x�ept �s �p�sc3fi��yly m�d3f3esi 9.r� g��e�tia�g ��a �ao���t?���1 p�z;,�. t s ',
. ,•'�^.,�� ��,;.�� prDvid�d �a f��,l�w�s
(�) 5��backm, — I�s a r�s.�der,ti�� ���ro ar ��i � P:� a�oaae� ya?���» ��it��l �re -.
.. �-s�� t;�o�-�hird� tha height of the p�.�r�cip�1 �'�r.uw�ure. It� a�+y mafie y�R:' _ .
-��:��ator th�ra the stettdards of �h� �ot�s ��t wFti�h ti�ey are 1��;€�t�c; �-_,� �; ., . ; ::,� - .:m
(2� N�ight excnptii�on. — Tha h�igF+t lfmitatior�� s�� a �r�e�c m�y ba �xce; :•. .� , ,,:�
u ;: ����::ch ;��W g�v�rr�mentai bu3.ld.ir�g a� ;� car�ditiou��i u�e �Co � r„���mu„a •��b�?� . ..d
�: . ' � ���: �,:' ;`��'�y feet, prnn�,�dnd tha �e�i.�.� 9'���sr r���� e�S" �;�ae .o�:�°: ,. . ..T:. L� .. .
*,�;v _,.�::�:� ��ia and o�o—P��lf �ir�ea th� ���� o#° eS�o �.��� �~�d �r�aes�•���:e+ ::�.,�, .,
;����� : •;si�$r^��m width equ�l ta a� I���� twc,�t�$.�d� s�P the hs��:�� �," r. . �
�fi;.i?-�`�s�v , . _
�. � Lir;�.�te�f��� oa� ac�e�s tr� i�t� ��ru� raav �s�s�t����� �� bcs�'Ya�i�-a��o - .. .. ,
mr�y �.:_::��.t �r prmhibit vah�culn� �a��evv ���� g c�r�aSft�.�ey�l a��� �::� � �a:�:>.�ti--':,_:,,,
a�rR��; ��a deWignatea� �� �t� ��ta�i�Y �t�e�� r�� �,� o���.�ia�l�� �as��z:���: �C.i�, .
�.'_�. .� ���� �� m�y li�o�t �x proh3bit op��o.���� f,n �.��le� r�� � be.c�.;9�itar� ��: w�,.,. ,.•w� �
;; � :'-�s:� �:a3 � �:ae�r33t�fo�e1 u3� ui�F�3� i��.�t�� ��c�� cd � x���.�r�q-;��;���. a�ti7� 't . ;,._;
o�.;..,�$: �:.� w.iil cause gle�re9 excas��v� �;�sf,se' �x �s�h�� 3�ar,��c�� �:'f'�•��a <�--: ��:� -�r ,
z•�. ' -'F.:�^LAe�� pr�perti��.
; :� ��.,��e � The �i+g�r Pfmit�ti�a�� rfi � zc+ro an�ey� b� a�:�c�n�J�� f'�r � -::�: :.a.. : -�,
:.� Lc� s�.�>�;;� �s�ne 3�dira�t�.� il�umiraa���f �s �ro��a�:?.E.��s�nir��t�� gi��, aprA: �� .- - :�a ,-c.k
s_;�_,�,r� ��.�.♦ ', §.�a �bes� �at� e�ct� �1�� o�f � c��d:�.����i��. te:s� �bs�x�i:t, � ��.��.•'_o -
��;_.z,�.'.��o ae-� t.h�e c��e ef a ch�srch �h�r� m�y L�e � ���lat�a� ���.-i�s� v;�.ob �• ... . .: �-�^ °.:n
�s�u�rc i"���,� ia� �reao A �iget sh�ell pert�i� �� �R�e c�r�d,��3n��1 �;�e. ,a�.,;, , �- -�
c:4 t<�� i��a �e���irad y�rsfs o . ��
:' S�i���l.�o �
(�� iU����e�y ��c��ml� �h�.�9. �,r�a���� +��� �F�e:re�rf�e� nn��.ov���.s� �o�A�+._�.� p" ..%
t���� w��� � mist�mu¢n a�e� r��' mr�� F�a9u�u��e�s9 �qa.��r� �'aa�'� p�� �c��.9.�i �sf ?��st�� �w,_.�.�:'� �.
,: _:.:c�i�e"�m�ta��aa�ir�g �e��e at �.e��� ���$� fi��� E�e�t r��ai mn�ce th�� �.�:� F��t `�ra � ...4�;�,-
�FaQ�l ba p�a��d�s�i �e���st�ng the plr�y �r�� fr�m �t��attie�g lots,
(t�) Pr�m��y ��ha�l� ssh�lg pr�v.��o one a.cr� r��' �i�a �re� f"s�� a;,�t. ni:: . �:,y�
�°.��i:il� or an� �c�a fz�r o�ch th�mc� �].�as�io¢rm�s �uh,i�hevo� i� gx��ste��o
��) Elemr�nta�y �e�h�+�Y� �h�Yl p�e�vide ane s��e aP �ifi,ca ms��� �°o� :._�h
�_:vL�a�y.oPie�e pupile or or�e a�;sc� �'or �r�ch t�uo ao�� onemh�lP c9.$�as�as��n�s9 wh3��a�°t�:,.�
fa gxaeta�. ,
(6) Ut�lity Sub���tion or P�amp3.t�g 5�b�t��iot�. — 1"he �x�rimum int �iza �s, �F::
<a~�_ :.n which a publ�.c utility �'ecility is to be loc��ed m�y be wr�ived Q�:. - cf:
��tt�i�g thr�t the waiver mill nr�t se�ult in no�.3e or othe� d�trimen��� efifvrt cr,
ad j�c��tt p�opesty. No equipm�nt st¢�.r�sgo ah�ll be per�ni��ed �n the �.��� s�; n
r�.�Sd��s�i�l aoe�� or �n � NC z�nes Such use8 �ha13 be iFeo�c��i �v�d �rm�r�d��' ,J�,t�-.
l�r.rle��api�g es �'ound necesa�sy.
(7) Du��,l�ir�gso m f� et�� c�;*� �P��11 the �s���+d��d.s �'�r r� dsvaY�.�.u�g i�� � � 3�:.��.�
�ti���l �as� b� lea� than tha c�nhd�rde c�i' c f(1R�Z ao�ao (�ls�¢to N�v '�8�19 5��:a ��y°
11W21—blo) '
1
292.
50.210 zOMNG �'�.���d
OFF-STREET P�RKING AND ��,ADiP•��
50.210 t�ff-street parking.
At the time of erection of a new structure or at the time as �r,'ar;��;a�•�.. c; c'-- r.y:
ir� use of an existing strucfiure within any zone in the city, �ff-�s�r��t ����° ". ;��
shall be as provided in this sec#�on ur�lsss greai��t r��u:r���n�s ctr�: �Y:'-�s�a'r`:V' .'.Yt •��-
lished. I� parking space has been providerl i� COI'1li�C�Bi19'3 bYItP'� G89'3 �;t95t:�-;,a 9� : :�r ?.
�•�c�ed to an existing us�, t4�� parki�g sp�c� shca9l �°.e�t be �.la�°:;�.a�' o,' r,;:;. � . ..� ,
wr�vld r�sult in less space than is requirvd �y this s�cgicn, �`y��<;r� r;�.n�� fe-�; � :�
s��cified, the area measurec! sha6! be th� gross fioor ar�a prsrr�r.�a> Q::, �'•�,- �'�� "
o� th� �a�-ticular use of the prop�a�ty $��+t s�esl9 ex�l�sd.: ��ac:ye ��°✓�.:�:� ic� �:_; : ✓
parking or loading. Where employ�� aP� speca�i�d, persons ccars�s:��� s�,a!i :- , ��,�
:e�rking or� the premises during ti�� (argest shift at peesk se�srn or�`3+,;�:r,; ��..�-�r:�: ,
Use S������arc;
(�) �esodential
(a) One-, two-, or three-��n�n'sgy �ne space p�6 d�N�!@�r;�� ��-- .a
clwelling:
(b) Milti-farnily dwelling con- Spaces ::�;u�� �� i.; tF�;,� ;,:, • � ,`. ..
tainong four or more dwellsn5 unets: a�� dw��li�s� vr�p�s,
(c) Rssidential hotel; rooming Spaces equal t� eighgy p_; .:�. . .-
or boardinghouse: number of g�est accor:: ;���,-';;;i-:.s f.'i:;
one add�tiona� sp�r� far t;;:: .�•.+r:�;.
(d) Retirement home: One space per dwellinc� unit.
(2) Commercial residential.
(a) Hotel: ' One space per two guest roon;� ,��t;:
one space per two emp�o;�:�.
(b) Mo#el; One space per guesf ra�m or s�;fi:: �:��.:s
cne additionai space eor t;�-,� ::,�•:�-.:_r
or manager.
(c) Club; lodge; Spaces to meet fihe combined r�quii-��-
ments of the uses beirag car,.���-t�:`
such as hotel, restaur�rr�, c_��i-
tori�m, etc. �
(3) Institutional
(a) Welfare or correctional in- On� space per five beds for p:�fie,�'r�
stitution: or inmates.
(b) Convalescent hospital, nurs- One space per two beds tor p�9�;ents
ing home, sanitarium, rest home, or residents.
home for fhe aged:
(c) Hospital; Spaces equal to 1 .5 times the r��jm��r
of beds
293.
�.210 ZONENG ��•��`� � ,
Use S�andard
(4� Place of public assembly.
(o) Church: One space per fovr seats or �ighfi �G_:
of bsnch len�th ir� the main �t. ' M
torium.
(b) Library; reading room: One spc�ce per four hundred sq����r�
fee# of ffoc>r arsa plus on� s�aac:
per two employes.
(�) Preschoo) nursery; kinder Two spa��s ��r t��cher,
g�arteri:
dd) Eiementary or junior high One spaac� per class:oca� plus car�:_: ,..�., -
s�ha�aB: �Ser adrninistrative emp8ny�:� ar w>;
space per four seats or e ig;6t f�.�� - L
bencl� length in th� auditori�s�. :..
assembfy room, whochev�� iv;��,���r-r.
, . 4e) �ligh school: ��e spd�s per class�'oo� p�us or,v s�:,����+�
per administr�tive e�ployce }�&��::
one space fcr �ach six stu�::n::: >:r
one space per four seats or ry;�'t,a
�'�et of bench length in ti�� �raai;
auditorium, whic��ver is �rc�.;c�;: �
($� College; commercia! school One space per five seats ir+ cicassr::�. �-3::.
foo aduits: .
(c;) Other audifiorium; meeting One space per four seats or �t�ht ��;�'
roorra: of bench length.
(5) Commercial amuse.ment.
(a) Stadium; arena; theafier: One space per four seats or eighi� £eeg
' of bench length.
(b) Bowling alley: Five spaces per alley plus one space
per two employes.
(c) Dance hall; skating rink: One space per one hundr�d squar�fee:
of floor area plus one space per fi�.�,�
emp loyes.
(6) Commerc ia l,
(a) Retail store except as pro One space per two hundred squarefer�-
vided in subsection (bj of this sub- of tloor area.
se�ction:
(b} Service or �e�air shop; re#�ail One space per six hundre�! squarz fe�t
store, handling e��lusively bulky of floor area.
merchandise such as automobiles and
furniture:
(c) Banks; offi�ce (except medical One space per six hundred �square feeh '
and denfial): of floor area plus one s�ace per9��r�o
employes.
294.
50.210 ZONING ;;�, ,.�r�
Use Standard
(d) Medicai and dental clinic: One space per fihres hunc�r�� s�u�sre feet
c�f floor aren plu5 o�e s�k,��. �:•�: {�r�
� empioyes.
(e� Eating or drinking establish- One space per two hur�dre�:' �-�-:<�-;: f��t
ment: of floor ar�a.
� (f� Mortuaries: . One space per four seat� �: t:i�hfi ���t
of bench length in c�;apas�:
(� lndustrial
' (a) Storage warehouse; mqnu- One space per esv�pl+�y��
facturing establishment;.rail, or
trucking 6reight terminal:
(b) Wholesale establishmenfi: C�ne space per emplo}�e p$4�� c.��. ;:��;�
. per seven hundred sc:.:.;;:: . ,���; f�f
potron servi�g area.
(Ord, No. 9i9, Sec. 6; 3-19-63o Ord. No. 1094, Szc. 1; 12--21�-b5a C7ri=q ; ' �s
Sec. 96; 11-21-61.
50.22A Off-street laading.
(1) Passengers. - A dirveway d�signed for continous forward flow c� ��;:.�,�:�,:::.,;-
vehicles for the purpose of lopding and unlapdi�og children shal( bs loca;��� n;, t'-e
site of any schoo! having a capacity greater than twenty-�ive students.
(2) Merchandise, materials, or supplies. - Buildings or strvctures i�� b.. a„i!i or
substantia)ly altered which receive and distributed material or merchand�s�� ;�y ,;Ue�
shall provide and maintain off-streefi loading berfihs in sufficient numb�rs ar�d siLe fi�
adequately handle the needs of the particular �se. If loading space hcss be��� pro-
vided in connection wi1�h an existing use or is added to an existing use, the I�a�,�ng
space shall n9t be eliminated if eliminai�ivn would cesulfi in less space than °ts �-erui�'ed
to adequately handle fihe nesds of the particular use. Off-street parkir�q are�as u:�d
to fulfill the requirements of this ordinance sha(I not be used for loading and un�-
loading operations excepfi during periods of the day when not required to �car.: c�re
of parking needs.,,(Qrd.: No,, 781, Sec. 97; T1-21-b1.)
50.230 General provisions - �ff-street parking and loading.
(1) fhe provision and maintenance of off-street parking and 1oad►ng spaces a;e
� confiinuing obiigQtions of the property owner. No building or other permit shall be
issued;until pfans are presented that show property that is and wili remain availap(e
� . for exclusive use as off-sficeefi parking and loading space. Thesu6sequentusec�fpro�erty
forwliich the bu.ilding permifi is.issueclshai I I�e conditional upon the unqucfio iec(�or�9�inu-
ance and.availabi lity of the:amountof parking and loading space.requir.ed by thQs ordsnance.
� .
295.
50,230 Z��11 NG
��0 2:,':{ ,
l�s� of property in vdol�tion hereof shala be a violation of t!�is ard;r�c�raee, S;,,,��-� thr
ow�e� ar occupant of a lot or building change the us� t� ��icp� ��� J��. �,,. �-,��?.�� ., ':
��rt� thereby increasing off-street pr�rking s�r load��g r�q����rr.�nn�s, P# ;'-„;: `, >. ; .
law�'�I and a violation of this ordinance to I�eg�n �r �a�nf��� s��� ,�����.�� �,�L r:�p#�j
ti�e required increase in off-street parking or load;ng is provired.
(2) Requirements for types o� busld6�,gs anci uses not :p�e►fS��;�y� I�.;fi�r' ;;��:•��..
shail be determined by the planning ��mmis�ion, bas�� up�n the r�q�;i���U�;;;; �;
� corrop�rable uses listed.
(3) ir, the event severa! vses oc���y cr sir,�ie �4r,�c�l:,-� �r �����q �,;'� ., ..� ; G
r�q�i��rr,er�ts for off-sfireet ,o_ , ►''F� i::�af
perkin g sha6� �v ,:,:� s�rr� Q� #�h� r�quoE��c>;�iK �,�' it�� �,�Fer-:�
���s ��r.;pu�ed separcately; -
(�; C�d�rn�rs of two or mofe �ses� sfi�-►s��ur��,. s;r �arc�J� csn 8�;�a tn,��r L.:;��; ; ,.; M
s;�a 3�or�aly the same parking and loar`r�ng spe�ces �r'��ra the hQurs of���rr�;�t;; �°� ::,•;
����'i�}�, pr�v6ded that satisfactory i�ga! evide�c� is present�� tc� �Fe fa��!c�";-< '
s�����or in the form of ueeds, Iease3, �r cc��afir�scts t� est�,i�Rarh ;�� ��,r�� �._;, g .
��� �Jffwstreet parking spaces fcr �•r;�(Ia��.v -�-a!! ��. i�;cat�� �� ��� su;st,_ ;r;
�':�: �"��.v�J 9 i�g o Other reqvired pc�rkin� sp�c�s shcl i u� ddcai•ec� ��t �'�,t��r t���.� r;.,� '8:
�+undred feet from the bui ldinc� or use t�cy ar� rec��air�d t� ser�9�, �:��e�s:�r�,� g,., r-, _.-;,�; -,,
� l��� �ram #he building. ~ _ �
���a? t�.equired parking spaces shcaii be c��rao�alad� for th� psp�-l���� �,; ���;.�g��,,, �,�,5�
��'���r cau�mmobiles of residents, custnmers, patrarss, c�;�d �mpa�yes c�nly, Ni-.: .-' -,_= i
a�csf b� us�d for storage of vehicles z�r mr�#eric�ls csr fhe pa�r�Ci�a� o� �r�,�^:, �le�.� g_ . ,
�u��'�nq fihe business use. - - �
(� �nless otherwise provided, required pqrking and l�cadia�g sp�C+�S �hc��� �:� ; ._
�¢scated in a re.quired yard.
�3) Plans shall be submitted as provided in Li3C 50.730.
�9, Design requiremenl�s for parking Iots�
(c�) Areas used for standing and maneuvering of vehicles shall have durc<�Ic:
and d�stless surfaces maintpined adeqvately for ail weather use and drain�d t�b: .;��;,:"Y�!
f'm'�v of water across public sidewalks.
(b) F�ccept for parking #o serve residentiaF uses, pc�rkeng a�� �oode�g �r�,r^.
adjacent to or wif�hin residential zones or adjacent to residential uses s;�al( be de-
signed to minimize disfiurbance of residents by the installation between tha usas
of a sight-o6scuring buff;er approximately five to six feet ir� heir,�t ��,-,
cept where vision clearance is requirad.
(c) Parking spaces along the outer boundariss of a parking Jot sha!! �e con�
tained by a curb pt least four inches high and set bacic a minimum of four anc� o;;c:�--
half feet from the property line or by a bumper rai(.
(d) Artificial lighting which may be provided shall not create or reflec# subW
' stantial glare in a residential zone or on an adjacent dwzlling� .
(e) Access aisles shall be of sufficient width for all vehicle turning and ma��
euveri ng.
(f} Groups of more than four parking spaces shall be served by a service drive �
so that no backing movemenfis or other maneuvering within c� street othe� th�r? car� a;J�f
will be requiredo Service dr�v�s shall b� design�d and constructed i�o fs�cilitl�a�� #���
(Rsu. 12-17-74; hb} 24b.
50.230 Z O N I N G 50.270
flow of traffic, provided maximum safety of traffic access and egress andmaximum
safety of pedestrians and vehicular traffic on fihe site. The number of service drives
shall be limited to the minimum that will ailow the property to accommodate and
service the traffic to be anfiicipated. Service drives shall 6e clearly and permanently
marked and defined through use of rai ls, fences, walls, or other 6arriers or markers
on frontage not occupied by service drives. Service drives shall have a minimum
vision clearance area formed by the intersection of the driveway center line, the
street right-of--way li,ne,and a straight line joining such lines through points twenty
feet fr�rn their intersection.
' 4 i�) C�mp�etion time for parking lots. Required parking spaces shall be improved
and availabde for use before the final inspection is completed by the building �n-
speetor. An extension of tirne rray be granted by the building inspector pravidere� c�
�erformance bond, or its equivatent, is posted eq�qling the cost to complei�e tne
irnprovemenfs as estimated by the building inspector provided the parking space is
no# required for immediate use. In the event the improve,ments are not completed
v�ithin one year's time, the bond or its equivalent shall be forfeited and the improve-
ments thence forth constructed under the direction of the city. (Ord. No. 781, Sec.
�i8; 11-21-b1. Ord. . No. 1565, Sec. 1; 12-17-74.) �
SUPPLEMENTARY PROVISIONS
50.260 Zone boundaries. -
Unless otherwise specified, zone boundaries are lot lines, the center line ofstreefis,
and railroad right of way, or such lines extended. If a zone boundary divides a lot
into two zanes, the entire (ot shall be placed in the zone that accounts for thegreat-
er area of the lot by the adjustment of the zone boundary, provided that the adjust-
ment is for a distance of less than twenty feet. (Grdo No. 781, Sec. 99; 11-2�1-61 ,)
50.270 General provisions regarding accessory uses.
Accessory uses shall comply with all rec�uirements for the principal use except
where specifically modified by this ordinance and shall comply with the following
limitations:
(1) Fences may be located within yards but shall not exceed three and one-half
feet in the front yard and shall not conff ict with vision clearance requirements.
(2) A greenhouse or hothouse may be maintained accessory to a dwelling only
if there are no sales.
(3) A guesthouse may be maintained accessory to a dwelling provided there are
no. cooking faci lities in the guesthouse.
(4) Regardless of the side and rear yard requirements of the zone, in a residential
zone a side or rear yard may be reduced to two feet for an accessory structure erecfied
more than sixty-five feet from streets other than an alley, provided fihe structure is
detached from other buildings by five feet or more and does not exceed a height of
' one story nor an area of six hundred square feet. This section does not apply to yards
(Rev. 1-25-77; hb) 297.