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Approved Minutes - 2024-02-06 CITY COUNCIL REGULAR MEETING MINUTES February 6, 2024 aRrr�o� 1. CALL TO ORDER Mayor Buck called the regular City Council meeting to order at 5:32 p.m. on Tuesday, February 6, 2024.The meeting was held both virtually via video conferencing and in-person in the Council Chamber at City Hall, 380 A Avenue. 2. ROLL CALL Present: Mayor Buck, Councilors Verdick, Mboup, Corrigan, Afghan, and Wendland. Councilor Rapf was excused. Staff Present: Martha Bennett, City Manager; Ellen Osoinach, City Attorney; Kari Linder, City Recorder; Daphne Cissell, Associate Planner; Evan Boone, Deputy City Attorney 3. PLEDGE OF ALLEGIANCE Mayor Buck led the Council in the Pledge of Allegiance. 4. PUBLIC COMMENT • Howard Cumberland, Provided concerns to the Council regarding the recent ice storm and suggested that an actionable management plan was necessary to deal with the trees because storm damage would occur again in the future. He understood the complexities of the issues and volunteered to help at Council meetings and conduct reviews. 5. PROCLAMATION 5.1 Black History Month. Mayor Buck stated that February was Black History Month and he was honored to join residents of Lake Oswego in celebrating the 2024 theme, "Black Americans and the Arts." This year's theme invited everyone to explore and appreciate the profound impact that Black individuals had on the artistic landscape of the nation. He encouraged the community to take a moment and recognize the creativity, resiliency and cultural contributions of Black Americans in shaping the arts and influencing shared heritage. City Council Regular Meeting Minutes Page 1 of 8 February 6, 2024 He announced a celebration at the library on February 28 at 5:30 p.m. for the rescheduled MLK Day celebration. The event would feature artwork created by Lake Oswego youth, Katharine Phelps as emcee, poetry reading, musical performances and more. He also encouraged the community to visit the City's website for an extensive list of events honoring Black History Month as well as the City's proclamation. 6. CONSENT AGENDA 6.1 Approval of Meeting Minutes. December 19, 2023, Draft Regular Meeting Minutes January 2, 2024, Draft Regular Meeting Minutes Motion: Move to approve the meeting minutes as written. END CONSENT Councilor Wendland moved to adopt the Consent Agenda. Councilor Mboup seconded the motion. A voice vote was held, and the motion passed, with Mayor Buck and Councilors Afghan, Wendland, Verdick, Mboup, and Corrigan voting `aye', (6-0). 7. ITEMS REMOVED FROM CONSENT AGENDA No items were removed from the Consent Agenda. 8. CONSENT AGENDA— Councilors Only 8.1 Resolution 24-06, A Resolution of the City Councilors of the City of Lake Oswego Approving the Appointments of Alternates to the Transportation Advisory Board and the Diversity, Equity, & Inclusion Advisory Board. Motion: Move to adopt Resolution 24-06. Councilor Corrigan moved to adopt the Consent Agenda. Councilor Verdick seconded the motion. A voice vote was held, and the motion passed, with Councilors Verdick, Mboup, Corrigan, Afghan, and Wendland voting `aye', and Mayor Buck abstained (5-0-1). 9. PUBLIC HEARING 9.1 AP 23-03, An Appeal of the Development Review Commission's Decision to Approve the Type II Tree removal application 499-23-001116-TREE at 2800 Wembley Park Road. City Attorney Osoinach read the quasi-judicial hearing procedures for this appeal and confirmed that none of the Councilors had any ex-parte contacts, bias, or financial conflicts of interest related to this application. She also confirmed there were no challenges to the City Council's right to consider this appeal. City Council Regular Meeting Minutes Page 2 of 8 February 6, 2024 Associate Planner Cissell presented the Staff report on the appeal of the Development Review Commission's (DRC) approval of tree removal at 2800 Wembley Park Road, currently under review for a single-family dwelling. Her presentation included a review of the approval criteria, findings of fact, and Staffs recommendation to approve the tree removal with the conditions listed in the Staff report. Mayor Buck opened the public hearing and called for the Applicant's presentation. Kelly McCall representing Renaissance Homes, stated she had been working closely with Staff and the Applicant's arborist to ensure that all proper protocols had been met for this application. A total of 12 trees would be removed, 10 for the new development and two for landscaping improvements. The Applicant has agreed to plant all twelve of the mitigation trees that were required. She displayed a map on the screen and noted that the trees marked in red were the trees to be removed. The application was originally submitted to the City on September 1, 2023, and proposed the removal of 14 trees. On September 20, 2023, the City requested additional information after the City's arborist had assessed the trees for removal criteria. She noted that the two trees marked with orange on the map were requested to be retained and withdrawn from the application. One of the trees, a 15-inch lodge pole pine located in the right-of-way, was found by the Applicant's arborist to be in poor condition. However, the City's arborist found the tree to be in fair health and suggested the tree be retained. The other tree, a 34-inch Douglas fir, was in good condition and was a prominent tree in the skyline. The reason for removal was based on the likely construction impacts to the roots from the new home's foundation and retaining wall. The City asked if it was possible to tighten the grading, reduce the length of the retaining wall, and change the foundation in order to preserve the tree. Renaissance Homes performed exploratory trenching around the root ball to see if the City's request would be possible. The arborist found several structural roots located in positions that would allow the roots to remain intact. Therefore, the Applicant reduced the length of the retaining wall and reengineered to accommodate structural bridging over the roots. Both trees were removed from the application and would be retained. Staff did a great job of explaining how the criteria had been met, which were as follows: • The trees would be removed for new development and landscaping, and the criteria had been met for both new development and landscaping purposes. • There would be no negative erosion, surface water, or windbreak impacts. The site would be redeveloped with a special focus on stormwater management and erosion control. Based on the evidence presented, removal of the 12 trees with mitigation measures would not have a significant impact on erosion, soil stability, flow of surface water, or the protection of adjacent trees. Staff agreed and found the criteria had been met. • There would be no negative impacts to the neighborhood's character or aesthetics. Only nine of the 12 trees met all three criteria to potentially be considered a significant tree. The trees are healthy, over 15 inches, and non-invasive. Staff found that based on all of the evidence submitted none of nine eligible trees qualified as a significant tree based on their significance to the neighborhood, uniqueness of species, or distinctive characteristics. • There would be no significant negative impacts on the removal of greater than 50 percent of a stand of trees. The City found that the proposed removal did not come close to the 50 percent threshold. Only 0.04 percent of the stand of the trees would be affected. • There would be no significant negative impacts on the neighborhood aesthetics or skyline. Some of the trees are visible from the street, but there are prominent and abundant foliage behind the property that fills in the skyline. The neighborhood skyline as a whole would not be significantly affected. The City's arborist stated that the proposed removals would not alter the City Council Regular Meeting Minutes Page 3 of 8 February 6, 2024 distinctive features or continuity of the neighborhood skyline as viewed from public streets and properties within 300 feet of the site. The Applicants have submitted a mitigation plan to the City.Twelve mitigation trees will be planted on site to replace the 12 trees removed. Two of the trees to be removed have been severely pruned for powerline clearance and now have top-heavy canopies. Pruning for clearance would be an ongoing maintenance issue. The proposal is to plant native Dogwood trees, which have a lower canopy height. The design of the proposed home is original and was created specifically for this lot with the trees in mind. The lot is zoned R-10 and has standard setbacks and zoning codes. The lot is also located in the Uplands R-10 Overlay, which includes additional criteria requiring front yard setback averaging for a minimum of setback of 40 feet, a maximum of permitted height of 30 feet regardless of slope, a 30 percent limit on impervious surface area, and 6/12 side yard setback planes. The irregular shape of the lot makes these criteria difficult to achieve. The plans were developed specifically for this lot, the natural topography, accessibility, and tree preservation. The front yard setback prevents the use of the area where the existing footprint is located, where the trees have acclimated to the existing foundation. This would have been the optimal footprint for tree preservation; however, the Code does not allow for this. The height of the proposed structure is 29-feet 4-inches, so the elevation could not be raised much, as there are no exceptions to the maximum height. The north corner of the site was selected for the stormwater infiltration chambers because it is the lowest elevation on the site and impacts the least number of trees. The pervious paver system for the driveway may not exceed a six percent slope, which also locks in the house's finished floor elevation relative to the street. The stormwater engineer confirmed this location was the most optimal in terms of function and tree preservation. Since the house cannot be raised and the backyard slopes upward, the back and side yard must be regraded and retained to avoid erosion or soil stability issues. The retaining wall, excavation, and regrading would negatively impact three of the trees, necessitating their removal. To meet the limit on impervious surface area, the Applicants would use pervious pavers for most of the driveway and walkways. The side yard setback planes must be compliant on all sides and due to the lot's irregular shape and required setback, shifting the footprint of the house would not comply with the Code and four trees must be removed. The existing driveway approach offered very limited visibility from both directions, which was dangerous. The new driveway would provide safe access to the site with increased visibility and better orientation to the main road. The Applicant should have the right to build within the allowable building envelope on the property as permitted within the zone. The plans have been approved by Planning Staff and all associated Departments. There is no other dwelling configuration that would allow the property owner to fully develop the property as permitted in the zone and protect trees from removal. The trees would decline or die due to construction impacts. Opposing Staff and denying the application would compromise property rights and set a negative precedent for new development and redevelopment projects. She asked the Council to deny the appeal. Mayor Buck called for the Appellant's presentation. Erin Williams disclosed that she was an attorney. However, she represented herself and her opinions were not representative of her employer or any client. She stated that she was looking forward to having a new neighbor, but her five-year old cried upon learning that trees would be cut down, prompting her to take action. The property already has a home and the proposal was to keep 12 of the existing 34 trees. She asked the Council to consider that the tree Code puts the burden on the Applicant, not on the City or the Appellant, to show that the criteria has been met. Several criteria have not been met for specific trees. She also asked the Council to consider the process because the City had taken on a lot of the burden, paying for City-contracted arborists. The alternative would be to put that burden on the Applicant and once the Applicant made an City Council Regular Meeting Minutes Page 4 of 8 February 6, 2024 initial showing that the criteria had been met, the City's arborist could confirm. She cited concerns with Staffs findings as follows: • The finding that the removal would not have significant negative impacts — The burden was on the Applicant to determine that the tree removal would not have significant negative impacts on the character or aesthetics of the neighborhood. It was not her burden to show the Council the tree removal would change the skyline. She displayed a photograph on the screen showing the property and the trees marked for removal, noting that removing the trees would change the skyline as viewed from the public streets within 100 feet of the property, which was the vantage point the City was required by Code to consider. Removal of the trees would drastically change the skyline from multiple vantage points in the neighborhood. • The purpose of the tree Code was to preserve the wooded character of the city and protect trees as a natural resource. The Applicant had not met the burden of showing the tree removal would not have a negative impact on the character and aesthetics of the neighborhood specifically because it would alter the distinctive features and continuity of the skyline. • The finding that there were no reasonable alternatives — The Applicant had the burden of demonstrating that alternatives were considered for the removal of street trees and that there was no reasonable alternatives available. The 24-inch Douglas fir being removed for a new driveway was a street tree and it was not her obligation or the City's to show there was a reasonable alternative to removing this tree. The Applicant had said flipping the driveway was considered, but that doing so would not protect more trees; adjusting the position of the house was not feasible given other constraints; and that the width of the driveway and garage were standard. There was no discussion by the Applicant about whether a narrower driveway would be reasonable or feasible or if that was ever considered. No evidence was presented to support the claim that the proposed width of the driveway was standard. Written testimony included statements that narrow driveways were common in the neighborhood. She asked the Council to consider that a standard width driveway did not correspond to market acceptance. The Applicant had failed to meet the burden to consider a narrower driveway as a reasonable alternative or to demonstrate that a narrower driveway would not be acceptable to the market. The Applicant had also asserted that ORS197.307 regarding a lack of clear objectives applied. The Council had received legal advice about the scope of ORS197.307. She was talking about trees in the driveway and landscaping, not trees that would prevent the home from being built. She suggested further consultation with the City Attorney to determine whether ORS197.307 was applicable to this case. She hoped that the recent media about the damaging effects of trees would be kept out of this decision because the trees proposed for removal were healthy trees, not trees that had been deemed hazardous. Councilor Mboup asked Ms. Williams to point out the evidence in the record that showed the proposal did not meet the City's Code. Ms. Williams stated the Applicant did not show that removal of the trees would not have a significant negative impact on the character or aesthetics. The evidence included many photographs showing the removal of trees would change the continuity of the skyline and the distinctive features of the neighborhood. Written testimony stated the trees on the property were a distinctive feature because there were so few evergreen trees in the area. Granting the permit would conflict with the City Code because the Applicant did not meet their burden of proof and the record includes evidence to the contrary. Additionally, the Applicant did not demonstrate that no reasonable alternative was available, so granting the permit would be inconsistent with the City Code. Councilor Mboup responded that he had spoken to several people who could not tell what species the trees were. As a lawyer, Ms. Williams understood that the Council was obligated to follow the Code and the Code sided with the Applicant. He was City Council Regular Meeting Minutes Page 5 of 8 February 6, 2024 hoping Ms. Williams would respond to the comments made by the Applicant's lawyer, who demonstrated there were no problems. Ms. Williams did not provide any evidence that was contrary to the Applicant's defense. Ms. Williams confirmed that Councilor Mboup was specifically referencing Criterion 3 regarding significant negative impact. She displayed two photographs and explained how the skyline would change when the trees were removed. Councilor Wendland noted that this appeal only addressed the removal of 11 trees and asked what would happen with the rest of the trees that were marked for removal. Ms. Williams understood some trees were being removed under the Type I permitting process, so were not part of this appeal. Other trees were being removed without a permit because permits were not required for trees that were invasive or were below a certain size. Only 12 trees would not be removed. Associate Planner Cissell clarified that permits were required for invasive trees, but the permitting process was different. Mayor Buck confirmed there was no public testimony and called for the Applicant's rebuttal. Jamie Howsley attorney with Jordan Ramis for Renaissance, said he believed the DRC's recommendation to City Council, their seven to zero approval, and the thorough findings and testimony provided a valid reason to support Staff's decision to allow removal of the trees as proposed. The Appellant questioned the process by which the City conducts an arborist study. The burden of proof is on the Applicant, who must have their own arborist at the site. However, the City's arborist has the final word on whether the information provided by the Applicant's arborist is correct. The Appellant kept making statements that were not focused on the criteria and subjectively related to how the trees fit in the skyline. There was no evidence in the findings of the neighborhood skyline introduced by the Appellant. The Applicant had photographic evidence showing the vast majority of trees on the site would remain, leaving the skyline's prominence. No evidence in the record suggests otherwise. One of the trees mentioned by the Appellant fell during a storm and was no longer part of the application. The Applicant also considered alternatives for the driveway, including moving the house, which would create more impact on the trees. The driveway needed to be located in the proposed area due to the topography of the property to ensure safety and adequate drainage. The project includes a reduction of the driveway width by 7-feet 5-inches from the maximum allowed by Code. The Douglas fir sits in the middle of the location proposed for the driveway. Moving the driveway elsewhere on the site would impact more trees and would not allow for adequate stormwater management. None of the evidence suggested the Applicant had not met their burden under the criteria. He requested the Council deny the appeal, support Option 1, and move forward with the findings as recommended in the Staff report. City Attorney Osoinach reminded the Council that the new evidence regarding the reason for the appeal could not be considered. Mayor Buck closed the public hearing. City Attorney Osoinach confirmed that the findings on Page 3 erroneously stated all 11 trees were native, but the trees were a mix of native and non-native species. Councilor Afghan asked if the three street trees were unhealthy. He understood the trees had been trimmed to protect the power lines. Associate Planner Cissell responded that the trees had a poor structure, which required pruning. The trees were also in poor condition. City Council Regular Meeting Minutes Page 6 of 8 February 6, 2024 Councilor Afghan asked how the Council was to decide if removing the trees would have negative impacts on the character of the neighborhood. Associate Planner Cissell explained the Council needed to rely on what the neighborhood looked like and consider the skyline from a variety of perspectives. When foliage surrounds a property, the impact is reduced because the skyline from afar would remain intact for the most part. People who live in the neighborhood look at the trees more often and from a closer perspective. Looking at the trees from a distance showed the skyline better. The Applicant would retain a group of trees in the front, which prevented a significant impact on the skyline. Councilor Mboup said the Code required 12 new trees to be planted to replace the 12 trees that were removed. He asked if the Council could require more than 12 new trees to mitigate the impacts. Mayor Buck agreed that there were no good reasonable alternatives for the driveway, but he believed there would be a significant adverse impact on the skyline, which required additional mitigation.The five trees in front would have the largest impact. The arborist determined that 12 trees could fit on the site, which was more than what the Applicant had proposed. He suggested a tree fund in lieu of replanting the five trees in the front. Councilor Afghan believed removing the trees would impact the neighborhood. Many trees were being cut. However, the design and layout were changed to accommodate the trees and the Applicant considered the Code requirements. The Code required the removed trees to be replaced and that the replacement trees be of certain species. He believed the tree Code should be changed. He also agreed that the five trees in the front changed the character of the neighborhood, so more mitigation was reasonable. Associate Planner Cissell stated that one of the five trees was in poor condition and did not meet the first three elements of significance. Deputy City Attorney Boone advised the Council to find out if the trees were considered significant due to one of the conditions listed in the criteria. If a tree was found to be significant and the skyline would be impacted by its removal, the tree must be replaced with another tree. The only possible enhanced mitigation would be through a condition of approval, which must be based on a finding that the trees had an extraordinary impact on the neighborhood. This would be above what was considered normal removal under the criteria. The Code states that if there is no reasonable alternative to removing a significant tree, Criterion 3 did not have to be met. However, a mitigation tree would still be required. Councilor Wendland moved to amend the findings (page 3 line 9, sub-section a) to 11 mitigation trees, nine of which shall be native. Mayor Buck seconded the motion. A voice vote was held, and the motion passed, with Mayor Buck and Councilors Afghan, Wendland, Verdick, Mboup, and Corrigan voting `aye', (6-0). Councilor Wendland moved with City Attorney recommendation, to adopt findings, to 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). Mayor Buck seconded the motion. A roll call vote was held, and the motion passed, with Mayor Buck and Councilors Verdick, Mboup, Corrigan, Afghan, and Wendland voting `aye', (6-0) City Council Regular Meeting Minutes Page 7 of 8 February 6, 2024 10. INFORMATION FROM COUNCIL Mayor Buck reported that the short legislative session had begun and he attended with members of the Metro Mayors Consortioum advocating for Measure 110 and housing. He also reported that the Youth Leadership Council and the Happy Valley Youth Leadership Council co- hosted the Oregon Youth Summit at Willamette University. After the summit, the council members went to Senate President Wagner's office to hand deliver the letter signed by the City Council, school board and Youth Council regarding a flavored tobacco ban. Councilor Afghan reported that as a living tribute from Linda Harding, a grove of 100 trees will be planted in the Willamette National Forest in memory of Mayor Buck, city workers, electricians, emergency services, kind citizens who helped each other during the storm, and all friends of trees. 11. REPORTS OF OFFICERS City Manager Bennett reported that she would send a letter to the superintendent with a copy of the City Council's goal related to creating a west side community center. She understood the Facilities Planning Committee would discuss the future of Lake Grove Elementary at their next two meetings and she wanted to make sure the Committee was aware of the goal and invite the Committee to discuss a joint project with the City at an open meeting. 12. ADJOURNMENT Mayor Buck adjourned the City Council meeting at 6:49 p.m. Respectfully submitted, vaAi ..)51.41r2ie Kari Linder, City Recorder Approved by the City Council on April 2, 2024. Joseph M. Buck, Mayor City Council Regular Meeting Minutes Page 8 of 8 February 6, 2024