Agenda Item - 2024-02-06 - Number 9.1 - AP 23-03, Appeal of Type II Tree Removal Application 499-23-001116-TREE 9.1
COUNCIL REPORT
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Subject: AP 23-03, Appeal of the Development Review Commission's (DRC) Approval of Type II
Tree Removal Application 499-23-001116-TREE at 2800 Wembley Park Road.
Meeting Date: February 6, 2024 Staff Member: Daphne Cissell, Associate Planner
Report Date: January 23, 2024 Department: Planning and Building Services
Action Required Advisory Board/Commission Recommendation
❑x Motion ❑x Approval
❑x Public Hearing ❑ Denial
❑ Ordinance ❑ None Forwarded
❑ Resolution ❑ Not Applicable
❑ Information Only Comments:
❑ Council Direction
❑ Consent Agenda
Staff Recommendation: Per Development Review Commission ("DRC" or "Commission")
decision, approval of Tree Removal Application 499-23-001116-TREE.
Recommended Language for Motion (Three Options, depending on whether or not the
Council agrees with the Commission's Decision, and, based on City Attorney
recommendation, whether additional findings are necessary):
1. Option 1 (with City Attorney recommendation to adopt Findings): Affirm the
Commission's decision to approve the tree removal application 499-23-001116-TREE,
with conditions of approval, and adopt findings, conclusions, and order (Attachment 1);
or
2. Option 2:Tentatively affirm the Commission's decision to approve the tree removal
application 499-23-001116-TREE, with conditions of approval; or
3. Option 3:Tentatively reverse the Commission's decision and deny the tree removal
application 499-23-001116-TREE.
Motions 2 or 3 should include: "and direct staff to present findings, conclusions, and an order
finalizing the Council's tentative decision on February 20, 2024."
Respect. Excel'ence. Trust. Service,
503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY
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BACKGROUND
Applicant/Owner Renaissance Homes, LLC applied to remove 12 trees (10 for construction of a
new dwelling and two for landscaping). Staff tentatively approved the removal of the trees on
October 12, 2023. A request for a hearing (Exhibit A-001) was timely filed on October 19, 2023.
The Development Review Commission (Commission) held a public hearing on November 20,
2023 and tentatively approved the application. The Commission's Findings, Conclusion and
Order was approved on December 4, 2023 (Exhibit B-001).
On December 14, 2023, Erin Williams timely filed a Notice of Intent to Appeal (NITA) the
Commission's decision to the City Council (Exhibit A-002).
COUNCIL HEARING PROCEDURE
Pursuant to LOC 55.02.085(4), the hearing before City Council shall be on the record established
before the Commission, only issues raised before the Commission may be raised to the Council,
and only persons who appeared before the Commission orally or in writing may testify. The
record consists of the Commission's findings, conclusions, and order, minutes of the
Commission meetings, and the record before the Commission, including the application
materials, staff reports, and testimony. The entire record can be viewed and downloaded at the
project webpage/ Public Record of File, or at www.lakeoswego.city (enter "AP 23-03" in the
search box at the top right of the home page).
The Council members will be individually polled prior to the public hearing to declare whether
they need to make a declaration of ex parte contact (avoid if possible), actual or potential
financial conflict of interest, or bias (prejudgment; not able base decision on applicable criteria
and evidence in Record). Please notify City Attorney to assist in declaration, if needed.
DISCUSSION
Approval or denial of the application is based on the criteria and the evidence in the record: if
the evidence in the record shows that the criteria are met, the application must be approved; if
the evidence is insufficient to show that the criteria are met, the application must be denied.
The Commission's Findings, Conclusion, and Order (Exhibit B-001) and incorporated November
10, 2022, Staff Report (Exhibit D-001), provides detailed findings for each of the applicable
approval criteria.
Appealed Issues
Appellant raises the following issues for the City Council's consideration in the NITA (Exhibit A-
002). Appellant's argument has been summarized from the NITA. Staff's responses, including
the Commission's findings, follows. The Appellant contends that the decision by the
Commission to approve the application was in error because:
a.) The Commission incorrectly determined that the proposed removals would not
have a significant impact on the character or aesthetics of the neighborhood;
b.) Applicant failed to prove that no reasonable alternatives[to removal]exist that
allow the property to be used as permitted in the zone;
c.) ORS 197.307 does not apply; and
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d.) Applicant failed to demonstrate that the proposed removals comply with the
code.
Staff Response:
a.) LOC 55.02.080(3); Significant Negative Impact on the Character or Aesthetics of the
Neighborhood
3. Removal of the tree will not have a significant negative impact on the character or
aesthetics of the neighborhood. This standard is met when removal of the tree(s) does not
involve:
(i) Subcriterion a "Significant Tree"
a. A significant tree[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.];
For Criterion 3(a) "significant tree," only the subject trees that meet the first three elements
(healthy, noninvasive trees, over 15 inches in diameter) are then examined for the fourth
element of "significant to the neighborhood" based on the sub-elements of size, species, and
distinctive character, or the last remaining tree on the site.
Sub-Elements of Size, Species and Distinctive Character
Size: For a tree's size to be "significant" to the neighborhood, its absolute size without
comparison is irrelevant, but that the size needs to be examined in context of the
neighborhood's predominate range of sizes of trees. [AP 17-05, Commission Findings, pg. 41;
incorporated by reference in Council Findings for AP 19-07 (Renaissance Custom Homes), 20-01
(Roderick Family LLC), 20-08 (Renaissance Custom Homes), 22-03 and 22-04 (Renaissance
Custom Homes), and 22-06 (Gonyea / Miernicki)].
• Appellant's NITA:
"The Commission received testimony that the trees were significant because they were
tall...[and]...ignores evidence on the record submitted by commenters providing photographs
and descriptions of the size of the trees."
• Commission Finding:
The testimony [that they were tall, approximately 100 ft. tall] is not inconsistent with
Applicant's statement that "All trees on this application are visible from the street" (Exhibit F-
'There are numerous other Commission Findings after AP 17-05 that duplicate this finding.
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001, pg. 5)." In Exhibit B-001 pg. 2, the Commission concurred with the staff finding, which is
found in Exhibit D-001, pgs. 10-112.
o Staff Findings: "The arborist report lists the range of DBH measurements on the
property and adjacent property from 6" DBH to 43" DBH (Exhibit F-001, pgs. 10-
12).... Further, following an on-site visit and observation of the general
neighborhood surrounding the site, the City's contract arborist found the nine trees
are of average size or smaller relative to other trees in the neighborhood (Exhibit F-
002, pg. 1). ... [T]he nine trees reviewed for this sub-element are not significant to
the neighborhood due to size" (Exhibit D-001, pg. 11).
Species: For a tree species to be found "significant" to the neighborhood, it must require
examination of the neighborhood in which the specific tree is located and that "significance"
has been interpreted as a species not generally found in the neighborhood, or a rare tree
species within the neighborhood canopy, or contributes to defining the neighborhood character
and aesthetics. (See prior Findings cited under Size, above).
• Appellant's NITA:
"Ponderosa pine not being common to the neighborhood."
• Commission Finding:
The Commission incorporated the Staff Report findings. (Exhibit B-001, pg. 2.)
o Staff Findings: There are 3 Ponderosa Pine, 2 Scots Pine, and 1 Australian Pine out of
14 trees listed on Applicant's Type 2 Tree Removals. (Exhibit F-001, pg. 7). "Absent
evidence to the contrary, staff uses the on-site and neighboring property tree
populations as representative of trees in the neighborhood. ... The City's contract
arborist found that the nine trees requested for Type II removal are common species
and of average size relative to other trees in the neighborhood (Exhibit F-002, pg.
1)." (Exhibit B-001, pg. 11.)
Distinctive Character: For a tree to be "significant to the neighborhood due to ... distinctive
character" for this sub-element, it must be a tree that is:
➢ In a prominent location or uniquely visible and provide a defining characteristic of
the neighborhood, e.g., visibly unique foliage, color, or canopy and at a prominent
location, such as in a round-about entry to a neighborhood. [See Tercek (LU 21-
0044); Blue Palouse Properties, AP 17-05, DRC Findings; Monogram Custom Homes,
AP 18-01 DRC Findings, pgs. 3-4.]; or,
➢ Of horticultural quality that made the trees "of landmark importance," and the trees
were a sentinel to the neighborhood, providing a unique and irreplaceable element
in the neighborhood skyline. [Red Dog Investments, LLC (AP 20-02), Staff Report, pg.
8, Commission Findings, pg. 1, by incorporation]. [Staff Report, Exhibit D-001, pg.
12].
2 The Commission finding references page 13 of the Staff Report(D-001). That was the Commission's sub-
conclusion for Criterion 3(a).
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(See prior Findings cited under Size, above)
• Appellant's NITA:
"[T]his area of the neighborhood is distinctively heavily treed with Springbrook Park adjacent
and the removal of these trees will change the aesthetic from heavily treed to an open lot."
• Commission Finding:
The Commission incorporated the Staff Report findings. (Exhibit B-001, pg. 2.)
o Staff Findings: Trees are not distinctive from other trees, of average or smaller size,
and not in prominent location in the neighborhood (Exhibits D-003 and F-001, pg. 3).
"[N]one of the nine trees reviewed for this sub-element individually provide
distinctive character to the neighborhood." (Exhibit D-001, pg. 12.)
o Staff Comment: The effect of tree removal on the aesthetic of the lot is not a
criterion; the question is whether any of the subject trees are "significant to the
neighborhood because of its distinctive character."
Irrelevant(Non-Criteria) Basis of Appeal
• Appellant's NITA:
The trees proposed to be removed contribute to the lower temperatures in the Uplands
neighborhood, as an asserted "distinctive character" of the neighborhood.
• Commission Findings:
The Commission incorporated the Staff Report findings. (Exhibit B-001, pg. 2.)
o Staff Findings: Concerns regarding climate change, as well as loss of natural resources
and habitat (including the proximity to Springbrook Park), and loss of canopy cover
and noise buffers are not criteria for approval under LOC 55.02.080. See DRC
Findings, Conclusion and Order, pgs. 3-4, Rodman (AP 21-03), and the cases cited
therein (citing Roderick Family, LLC, AP 20-01, DRC Findings, pg. 9-10, Council
Findings, pg. 3; Renaissance Custom Homes, AP 19-07, DRC Findings, pg. 8; Council
Findings, pg. 2 (Healthy Ecosystems Chapter of the Comprehensive Plan is not
applicable criteria under LOC 55.02.080)." (Exhibit D-001, pgs. 4-5.)
o Staff Comment: There is no evidence in the record to document that Uplands
Neighborhood has lower temperatures than other neighborhoods. Even if it does,
there is no evidence in the record that the lower temperatures are due to the specific
trees in question (this criterion is applied on an individual, case-by-case tree basis).
Finally, even if both of the above are true, there is no evidence that the lower
temperature caused by the subject tree(s) provide distinctive character to the
neighborhood.
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Sub-Conclusion—Criterion 3(a): The Commission found that none of the nine trees, which met
the first three elements of significance (healthy, noninvasive trees over 15 inches in diameter),
were significant to the neighborhood due to size, species or distinctive character under LOC
55.02.080(3)(a).
(ii) Subcriterion b -Alterations to the Distinctive Features or Continuity of the
Neighborhood Skyline:
Alterations to the distinctive features or continuity of the neighborhood skyline, as viewed
from all public streets and properties within 300 ft. of the property;
This subcriterion requires that Applicant show that none of the proposed tree removals will
have a significant negative impact on the character or aesthetics of the neighborhood by
altering distinctive features or continuity of the neighborhood skyline.
• Appellant's NITA:
The NITA does not reference the effect of tree removal on the skyline.
• Commission Finding:
In the event Appellant asserts that Criterion 3(b) was not met, the Commission:
o Found "the vast majority of the trees remaining on the site provide the skyline
prominence (Exhibit G-502, pg. 5)."( Exhibit B-001, pg. 3.)
o Incorporated Staff Findings. (Exhibit D-001, pg. 13. Exhibit B-001, pg. 3.)
■ "There is prominent and abundant foliage behind the property that fills in the
skyline; the neighborhood skyline as a whole will not be significantly affected"
(Exhibit F-001, pg. 5).
■ The City's contract arborist found, based on a site visit and observation of the
skyline from the neighborhood, that "...with the proposed retention... of a dense
group of tall, mature Douglas-firs, the proposed removals will not alter the
distinctive features or continuity of the neighborhood skyline." (Exhibit F-002, pg.
1.)
Sub-Conclusion—Criteria 3(b): The Commission found that the 12 trees proposed for removal
would not alter the distinctive features or continuity of the neighborhood skyline.
b.) Criterion 3; Exception b: Reasonable Alternatives.
"[Criterion 3]is not applicable when:
Exception b. Alternatives to the tree removal have been considered and no
reasonable alternative exists to allow the property to be used as permitted in the
zone. In making this determination, the City may consider alternative site plans or
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placement of structures (development purpose) or alternative landscaping designs
(outgrown landscape area; landscape plan) that would lessen the impact on trees, so
long as the alternatives continue to comply with other provisions of the Lake Oswego
Code."
This Exception is applied only to the specific trees where their removal would not meet any of
subcriteria 3(a-e). Thus,the Council must first determine which trees do not meet subcriteria
3(a-e), and then analyze this exception criterion with respect to each respective tree.
The Commission found that not all of the five subcriteria were met for Trees#10140, 10141,
10143, and 10147, as they are in the public right-of-way and considered street trees and thus,
the removal of these trees were examined by the Commission under Exception b to Criterion 3.
In this Exception, the question is whether there are reasonable site plans or structure
placement that would lessen the impact on trees so long as the alternative would "allow the
property to be used as permitted in the zone" and comply with other Code requirements. The
Council has previously held that the necessity for the applicant to consider alternatives to the
tree removal and show that no reasonable alternative exists to allow the property to be used as
permitted in the zone" does not require the applicant to consider reducing the development to
less than permitted in the zone. [See Renaissance Custom Homes, AP 19-07, Council Findings,
pg. 2; Renaissance Custom Homes, AP 18-02, Council Findings, pg. 4.]
• Appellant's NITA:
"Applicant failed to consider all reasonable alternatives and failed to demonstrate that no
reasonable alternatives were available."
o No evidence about "standard driveway width."
o "The standard is not what is standard, it is 'constructability' and functionality as
evidenced by the market acceptance."
o Applicant presented no evidence or testimony that it considered a narrower driveway
to reduce the number of proposed removals or that a narrower driveway would not
be accepted in the market. Written testimony was submitted indicating that the
driveways to the immediate left and right of the subject property have driveways
much narrower than proposed by Applicant, indicating market acceptance for a
narrower driveway.
o Applicant presented no evidence that it considered adjusting the size of the home to
reduce the number of tree removals. A reasonable alternative can include small
adjustments to the size of a home to avoid additional tree removal.
• Commission Findings:
The Commission found that only four trees were subject to a "reasonable alternatives"
exception analysis because they were street trees per Criterion 3(d). However, even if all of the
trees did not meet Criterion 3, thus requiring Exception b for removal, the Commission found
that there was no reasonable alternative. (Exhibit B-001, pgs. 3, 5.)
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o Three of the street trees (#10140, 10141, and 10143) are in poor condition, with
poor structure, per project arborist (Exhibit F-001, pg. 7) and the City's contract
arborist (Exhibit F-002, pg. 2), which makes them susceptible to windthrow. There
are no reasonable alternatives to removal of trees in poor condition "because trees
in poor condition should be removed, either for landscaping purposes or when
needed for development purposes." (Exhibit D-001, pg. 4.)
o Tree #10147 is located within the proposed driveway approach (Exhibit F-001, pgs. 3
and 11). Specific neighborhood zoning and overlay requirements that prohibit the
proposed dwelling and driveway being located in any other position on the property.
"Staff found, based on the alternative analysis submitted by the applicant,that there
was no reasonable alternative that would allow the property to be used as
permitted in the zone that would lessen the impact on trees (Exhibit D-001)."
Here are the relevant findings from the Staff Report:
■ Applicant considered all the required zoning regulations when placing the
structure, along with subsequent required utilities.
■ Flipping the footprint, which is the only alternative given the zoning
restraints for this property, would require removal of more trees, so this is
not a reasonable alternative.
■ Applicant withdrew two of the proposed removals, as requested by staff,
because adjustments to the foundation, specifically bridging of the
foundation wall to accommodate roots, could be made and still retain Tree
#10087. The withdrawal led to an additional tree being withdrawn as it
would no longer have significant negative impacts from the proposed
removal since it was adjacent to the larger tree. (DRC Findings, Exhibit B-001,
pg. 3). (See also Exhibit F-001, pg. 7. Exhibit B-001, pgs. 4-5.)
o The proposed driveway width complies with the zone and overlay impervious area
standards. (Exhibit F-001, pg. 3). Reduction of permitted development is not a
"reasonable alternative" that can be required. See above cited Council and
Commission Findings.
o Evidence of constructability and market is required when an opponent presents an
alternative design: "challenges based on that [reasonable alternatives] point— must
consider the "constructability" analysis of the resulting floor plan and the resulting
functionality of the alternative as evidenced by market acceptance. [Renaissance
Homes, AP 22-03 and -04, Commission Findings, pgs. 7-8; Council Findings, pg. 4.
Exhibit B-001, pg. 3; Exhibit D-001, pg. 16.]
• Staff Comment: On Appellant's argument that Applicant must reduce the driveway
width unless Applicant shows that a reduced driveway would not have market
acceptance, Appellant is in error. If the proposed development contains a site feature
that would result in removal of a tree that does not meet Criterion 3, then the applicant
must show that reasonable alternatives were considered that would, if the applicant
wishes, still permit maximum development allowed by the development code. If an
opponent proposes an alternative to show that the applicant did not consider all
reasonable alternatives that still allows the applicant the maximum development and
would not result in removal of the tree, the opponent must show that the opponent's
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proposed alternative is "reasonable," which requires the opponent to show that the
opponent's alternative design is both constructible and functional, as evidenced by
market acceptance. Appellant did not present an alternative that permitted maximum
development allowed by the code; rather Appellant argues that Applicant should
develop less than permitted by the code.
c.) Applicability of ORS 197.307
"[A]local government may adopt and apply only clear and objective standards,
conditions and procedures regulating the development of housing, including needed
housing. The standards, conditions and procedures:
(a) May include, but are not limited to, one or more provisions regulating the
density or height of a development.
(b) May not have the effect, either in themselves or cumulatively, of discouraging
needed housing through unreasonable cost or delay." ORS 197.307(4).
If the code criteria are not met for a tree, Applicant alternatively argues that, as the purpose of
the tree removal is for development of housing, that the code criteria cannot be applied if it is
not "clear and objective" or if the code criteria has the effect results in unreasonable cost or
delay. Thus, if the Council finds that code criteria for tree removal are not met, the Council
would then consider whether ORS 197.307(4) applies, and if so, whether that code criteria not
met is not "clear and objective" or results in unreasonable cost or delay.
• Appellant's NITA
"Applicant asserted at hearing that ORS 197.307 applies. However, per a memorandum by
Deputy City Attorney dated September 1, 2023, ORS 197.307 does not apply to tree removals
for landscaping purposes. The memorandum further recognizes that the statute does not apply
to exterior amenities.
Many of the proposed removals are proposed to be removed for the driveway and
landscaping. The driveway is not housing. The statute does not apply at all."
• Staff Comment: No person in opposition raised ORS 197.307(4) as a ground for denial of
any tree removal. In fact, this statute was raised by the Applicant, as alternative
grounds for approval of the tree removal permit, if it were found that criteria of LOC
55.02.080 was not met, but that criteria that was not "clear and objective," as the
applicant argues that the statute prohibits the City from applying a criteria that is not
"clear and objective."
The Appellant now counters Applicant's argument on legal argument that was not raised below.
"No issue may be raised on appeal to the Council that was not raised with sufficient specificity
to enable the hearing body and the parties or, if applicable, the City Engineer, to respond." LOC
55.02.085(4) / LOC 50.007.003.7.h.i. However, if the Council finds that it must address the
Applicant's assertion regarding the applicability of ORS 197.307(4)to the criteria of ORS
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55.02.080, staff finds that the Appellant may raise legal argument as to the statute's
applicability, based upon the evidence in the Record, because the issue was raised with
sufficient specificity before the Commission by the Applicant.
• Commission Finding
As to ORS 197.307 as applied to these trees, and as the Commission found that all code criteria
had been met, the Commission declined to adopt alternative findings regarding ORS 197.307.
(Exhibit B-001, pg. 6.)
Landscaping Purpose— Trees#10140 and#10141. The Commission found that:
"Tree removal of a tree with poor structure, that cannot be addressed through pruning, is
itself sufficient as evidence of a landscape plan. [See DRC Findings, pg. 2, Taylor (Finding
incorporated by Council), AP 18-09 (tree in poor condition removed; mitigation tree
planting was sufficient)]. This subcriterion is met for Trees#10140 and #10141." (Exhibit B-
001, pg. 1, incorporating Exhibit D-001, pg. 6.)
Development Purpose—All Other Trees:As the Commission found that all code criteria had
been met, the Commission declined to adopt alternative findings regarding ORS 197.307(4).
(Exhibit B-001, pg. 6.)
• Staff Comment: In AP 23-02, the applicant submitted a tree removal request for two
trees in the backyard for landscaping purposes. The Deputy City Attorney opined that
ORS 197.307(4) was not applicable because, as applied to the specific tree removal
requests, LOC 55.02.080 was not a standard "regulating the development of housing":
"The two trees are not proposed for removal for the "development of housing":
whether the two trees are removed or not, the housing may still be developed as
proposed because they are proposed for removal due to landscaping purposes."
The AP 23-02 trees were not located in the building footprint.
"The focus in the context of this statute is on housing per se --the dwelling— not on
exterior amenities on lots being developed with housing that is neither restricted nor
prevented." [AP 23-02, Exhibit D-003, pgs. 2, 4.] [Attachment 1.]
Landscaping Purpose— Trees#10140 and#10141:These two trees are proposed by the
applicant for landscaping purposes, not for development purposes. (Exhibit F-001, pg. 7.) Staff
finds no evidence in the Record that not removing these two trees would preclude the housing
development from being developed as proposed.
These two trees are stated by Applicant's arborist to be in poor condition (Exhibit F-001, pg. 11)
and are therefore being proposed for removal for landscaping improvements on site per
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Criterion 1.b.The City's contract arborist concurred that they are in poor condition. (Exhibit F-
002, pg. 2.)
ORS 197.307(4) would not preclude the application of the code criteria in determining whether
or not two trees can be removed for landscaping purposes. However, as noted, Staff and the
Commission found that the code criteria were met.
Development Purpose—All Other Trees:Applicant seeks removal of all other trees for
development purposes. (Exhibit F-001, pg. 7.) Appellant overreads the Deputy City Attorney's
opinion by arguing that no tree outside of the building footprint cannot be subject to the ORS
197.307(4)'s prohibition against "standards, .... regulating the development of housing" that are
not clear and objective. Staff believes that Appellant is overreading the physical requirement
needed for a regulation to have an effect upon "development of housing." For example, in
Warren v. Washington County, 296 Or. App. 595 (2019), the county required the developer to
set aside and improve a riparian area as a requirement for a subdivision development; the
riparian standards were not applied, as they were not "clear and objective."
If the Council finds that specific trees proposed for removal for development purposes do not
comply with all code criteria, presenting the question whether ORS 197.307(4) would prohibit
denial of the application for removal notwithstanding the removal not complying with the code
criteria, staff requests the Council continue deliberation for staff to address the code criteria
the Council finds not met, the specifics of the tree involved and its applicability to ORS
197.307(4).
d.) Applicant has burden of demonstrating that the proposed removals meet all Type II
criteria:
[Note: Although the title of this section of Appellant's NITA suggests that Applicant failed to
meet its burden, the real assertion by Appellant is that the Commission did not perform its
obligations in considering the testimony.]
Following the close of the public testimony, the DRC shall determine, based upon the
evidence and testimony in the record, whether or not the application complies with the
criteria contained in LOC 55.02.080. The findings, conclusions, and order shall contain the
DRC's reasons for approving, approving with conditions, or denying the permit. [LOC
55.02.085(3), in part.]
• Appellant's NITA:
"The Order and Staff Report largely defer to generic statements made by the Applicant."
• Commission Findings:
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The Commission held a public hearing, and received and considered all testimony and exhibits.
It adopted Findings and Conclusions, setting for its reasons for the approval of the tree removal
permit with conditions. (Exhibit B-001, pg. 1—6.)
• Staff Comment: The question is whether there is evidence in the record that supports
the Commission's decision, and whether the Commission has explained the basis of its
decision, based on that evidence. The NITA should contain:
"a discussion of the specific issues raised for the Council's consideration and the
specific reasons why the appellant contends that the hearing body's decision is
incorrect or not in accordance with the applicable criteria." [LOC 55.02.085(4);
50.07.003.7.c.ii(5)].
and although persons may raise other issues beyond that in the NITA, those arguments
must "be limited to argument regarding issues raised before the hearing body ..., and
shall be based solely upon the record of the proceedings." [LOC 55.02.085(4);
50.07.003.7.k.i.] Appellant has not identified with specificity what "generic statements"
Appellant is asserting that the Commission relied upon that were not supported by
evidence in the record. Staff is unable to respond with specificity to Appellant's NITA in
this Council Report to what is not specifically identified by Appellant.
Conclusion:
The Commission found that Applicant had met its burden of showing that the code criteria of
LOC 55.02.080(1)-(5) were met, including Exception b to Criterion 3 were met and, upon
adoptions of findings, conclusion and order, approved the issuance of the permit with
conditions.
RECOMMENDATION
Staff recommends the Council affirm the Commission's decision and approve Tree Removal
Application 499-23-001116-TREE.
EXHIBITS
A. NOTICE OF INTENT TO APPEAL
A-001 Request for Appeal 499-22-001116-TREE, received October 19, 2023
A-002 Erin Williams Notice of Intent to Appeal, received December 14, 2023
B. FINDINGS, CONCLUSIONS, AND ORDER
B-001 Development Review Commission Findings, Conclusions, and Order, dated
December 4, 2023
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C. MINUTES OF THE DEVELOPMENT REVIEW COMMISSION HEARINGS
C-001 Minutes from November 20, 2023 Development Review Commission meeting
C-002 Minutes from December 4, 2023 Development Review Commission meeting
D. STAFF REPORTS
D-001 AP 23-03 Staff Report, dated November 9, 2023
E. GRAPHICS/PLANS
E-001 Vicinity Map
E-002 Existing Features Map
E-003 Site Map with Contours
E-004 Staff PowerPoint Presentation, November 20, 2023
F. WRITTEN MATERIALS
F-001 499-22-001116-TREE Type II Application
F-002 Summary of Staff Findings 499-22-001116-TREE
F-003 Notice of Tentative Staff Decision 499-22-001116-TREE
F-004 Applicant's Mitigation Plan 10-9-2023
F-005 Mitigation Plan Recommendations 10-17-2023
F-006 Supplemental Information from Applicant Representative, Jordan Ramis, dated
11-13-23
F-007 Applicant's Revised Mitigation Plan, dated 11-14-23
F-008 Applicant's Stormwater Statement, received 11-15-23
G. LETTERS
Neither For Nor Against (G-001-G-099)
None
Support (G-100-G-500)
G-100 McCall Comments, received November 17, 2023
Opposition (G-501+)
G-501 Johnsen Comments, received September 9, 2023
G-502 Fiegenbaum Comments, received September 10, 2023
G-503 Smith Comments, received September 13, 2023
G-504 Froming Comments, received September 18, 2023
G-505 Gaudin Comments, received September 18, 2023
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G-506 Meckel Comments, received September 18, 2023
G-507 Williams Comments, received September 18, 2023
G-508 Benn Comments, received September 18, 2023
G-509 Newell Comments, received September 19, 2023
G-510 Browning Comments, received September 19, 2023
G-511 Klose, Breanna Comments, received September 19, 2023
G-512 Klose, Andrew Comments, received September 19, 2023
G-513 Froming Comments, received September 19, 2023
G-514 Sweet Comments, received September 19, 2023
G-515 Bechtold-Yoo Comments, received September 19, 2023
G-516 Gaudin Comments, received September 20, 2023
G-517 Gould Comments, received September 20, 2023
G-518 Williams Comments, received September 20, 2023
The City Staff Report, DRC Findings, and all exhibits are available at the above address and
online at www.lakeoswego.city(type AP 23-03 in the search box at the top of the screen for
the Public Record of File).
ATTACHMENT 1
1 BEFORE THE CITY COUNCIL
2 OF THE CITY OF LAKE OSWEGO
3 A REQUEST FOR A TYPE II TREE REMOVAL PERMIT AP 23-03
FOR TWELVE TREES AT 2800 WEMBLEY PARK RD. TR 499-23-001116-TREE
4 ---- RENAISSANCE HOMES, LLC
AN APPEAL BY ERIN WILLIAMS FROM A
5 DEVELOPMENT REVIEW COMMISSION DECISION FINDINGS, CONCLUSIONS& ORDER
APPROVING THE TREE REMOVAL PERMIT
6
7 NATURE OF PROCEEDINGS
8 This matter came before the Lake Oswego City Council on an appeal by Erin Williams
9 ("Appellant")from a Development Review Commission ("Commission") Order approving Renaissance
10 Homes, LLC's ("Applicant") application for a Type II tree removal permit to remove 12 trees to construct
11 a new single-family dwelling with landscaping improvements (Exhibit A-001).The site is located at 2800
12 Wembley Park Rd (Tax Lot Reference 21E08AA01800).The request for hearing was timely filed on
13 December 14, 2023.
14 HEARINGS
15 The Appellant had submitted written testimony for the previously requested hearing before the
16 Commission on the staff's tentative approval of the application.The Commission held a public hearing
17 and considered the staff approval of the tree removal permit application at its meeting of November 20,
18 2023.The Commission adopted Findings, Conclusion and Order approving the permit on December 4,
19 2023 (Exhibit B-001).
20 The City Council held a public hearing to consider the appeal of the Commission's order on
21 February 6, 2024.
22 ADDITIONAL TESTIMONY
23 Pursuant to LOC 55.02.085(4),the hearing before the City Council shall be on the record
24 established before the Commission and only persons who appeared before the Commission orally or in
25 writing may testify.The following written testimony was received after the publication of the Council
26 Report from qualified persons:
Page 1— FINDINGS, CONCLUSIONS & ORDER (AP 23-03/TR 499-23-001116-TREE)
1 [To be Updated on Feb. 6,after noon;final version to be handed out to the Council at
2
meeting].
3
4 CRITERIA AND STANDARDS
5 City of Lake Oswego Tree Code [LOC Chapter 551:
6 LOC 55.02.080 Criteria for Issuance of Type II Tree Cutting Permits
LOC 55.02.084 Mitigation Required
7 LOC 55.02.085 Request for Public Hearing on a Type II Tree Cutting Permit
LOC 55.02.094 Conditions of Approval for Tree Cutting Permits
8
FINDINGS AND REASONS
9
As support for its decision,the City Council incorporates the November 9, 2023 Staff Report
10
(Exhibit D-001), with all exhibits, the February 6, 2024 Council Report, with all exhibits, and the Findings
11
and Conclusions of the Development Review Commission (Exhibit B-001), supplemented by the further
12
findings and conclusions of the City Council, below. In the event of any inconsistency between the
13
supplemental findings and the incorporated matter,the supplemental findings control. Following are
14
the supplemental findings and conclusions of the City Council.
15
1. Issues Raised Before and Addressed by the Commission
16
The issues raised before the Council are limited to the issues raised before the
17
Commission with sufficient specificity to allow the Commission to respond to the issue. LOC
18
55.02.085(4); LOC 50.07.003.7.k. Accordingly,the Council need not address issues raised before it
19
because, except to the extent the Council adopts supplemental findings herein,the Council incorporates
20
the Commission's Findings (Exhibit B-001) and the Council Report with respect to those raised issued to
21
the Council.
22
23
CONCLUSION
24
Based upon its findings,the City Council concludes that the applicant has met the burden of
25
showing that all applicable criteria and standards for a tree removal permit are met--or that as to LOC
26
Page 2— FINDINGS, CONCLUSIONS & ORDER (AP 23-03/TR 499-23-001116-TREE)
1 55.02.080(3) criteria,that Exception b is met--or can be met with conditions of approval.
2 ORDER
3 The City Council orders that the Commission's Order approving the application for tree removal
4 is affirmed and the application for a Type II tree removal permit for 12 trees [TR 499-23-001116-TREE] is
5 approved with the following conditions:
6
A. Prior to the issuance of the building permit, submit a final mitigation plan for 2800
7
8 Wembley Park Rd. (Exhibit F-007) showing the location, size, and species of 12 native
9 mitigation trees, which shall be selected from LOC Appendix 55-02-1, Native Mitigation
10 Tree List that comply with the minimum size requirements per LOC 55.02.084.
11 B. Prior to the final building inspection for the dwelling at 2800 Wembley Park Rd., plant all
12 required mitigation trees per Condition A, above, and request a site inspection by staff.
13
14
AYES:
15
NOES:
16
ABSTAIN:
17
EXCUSED:
18
19
DATED this 6th day of February, 2024.
20
21
22 Joseph M. Buck, Mayor
23
24
25 ATTEST:
Kari Linder, City Recorder
26
Page 3— FINDINGS, CONCLUSIONS & ORDER (AP 23-03/TR 499-23-001116-TREE)