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Approved Minutes - 2024-08-05 PM 503-635-0290 380 A AVENUE PO BOX 369 LAKE OSWEGO, OR 97034 WWW.LAKEOSWEGO.CITY 1 2 CITY OF LAKE OSWEGO 3 Development Review Commission Minutes 4 August 5, 2024 5 6 7 8 The Commissioners convened at 7:01 PM. 9 Members Present: Chair Dwight Sangrey, Vice Chair Russ O’Connor, John Dewes, Kristen Bates, 10 Helen Leek, Yuko Mino, and Larry Linstrom 11 Members Absent: 12 Staff Present: Johanna Hastay, Acting Community Development Director/Planning 13 Manager; Evan Boone, Deputy City Attorney; Daphne Cissell, Associate 14 Planner; Courtney Simms, Associate Planner; Will Farley, Assistant City 15 Engineer; and Kat Kluge, Administrative Assistant 16 17 Chair Sangrey asked members if they had any concerns or changes to propose in the Agenda. 18 None were indicated. 19 20 MINUTES 21 22 July 15, 2024: Chair Sangrey requested the following editorial change under the “Schedule 23 Review and Management Update” Agenda item: that the Type II Tree Removal application also be 24 noted as an appeal. 25 26 Commissioner Leek moved to approve the Minutes of July 15, 2024, as amended. Seconded by 27 Commissioner Bates and passed 7:0. 28 29 PUBLIC HEARING 30 31 AP 24-01 [499-24-000308-TREE]: A request for approval of a Type II tree application (TR 499 -24-32 000308-TREE) to remove two Oregon white oaks (23” and 25” DBH) for Landscape 33 Plan/Improvements. 34 35 This site is located at 14052 Edenberry Court (Tax Reference: 21E06DB07700). The Staff 36 Coordinator is Daphne Cissell, Associate Planner. 37 38 Evan Boone, Deputy City Attorney, gave an overview of the public hearing process (as it pertains 39 to Type II Tree Removal applications), outlined the applicable criteria and procedures, and gave 40 instructions for any verbal testimony given. 41 42 Development Review Commission Minutes August 5, 2024 Page 2 of 9 Mr. Boone asked DRC members to declare any ex parte contacts (including site visits), biases, or 43 financial conflicts. All DRC members present declared that they had no ex parte contacts, conflicts 44 of interest, and no bias. There were no challenges to the Commissioners’ rights to consider the 45 application. 46 47 Staff Report 48 49 Prior to presenting the staff report, Daphne Cissell, Associate Planner, pointed to the staff memo 50 dated August 1, 2024, where Exhibits F-007 through F-012 and G-001 through G-004 were added. 51 52 The two Oregon white oaks requested for removal measure 23” and 25” diameter at breast 53 height (DBH). 54 55 Ms. Cissell outlined the required criteria for LOC 55.02.080. The application cited Criterion (1), 56 Landscaping, as the reason for removal; however, the Applicant did not submit supporting 57 evidence that the trees have outgrown the landscaping area, and no infrastructure damage was 58 observed by the City's contract arborist nor by staff, neither did the App licant submit a 59 landscaping improvement plan. On the application, the Applicant described the reason for 60 removal as "fall risk to property." This is not a reason for removal under the Type II criteria. 61 Criterion (1) is not met. 62 63 Based on the evidence provided in the application and on the City's contract arborist's 64 assessment, the requested tree removal will not have a significant negative impact on erosion 65 control, flow of surface waters, or protection of adjacent trees or existing windbreaks . Criterion 66 (2) is met. 67 68 Criterion (3) is not met based on (3)(b), as staff finds that the removal of the trees would alter the 69 distinctive features or continuity of the skyline. The remaining sub-criteria are met because of the 70 following: both trees are of average size and are not a unique species (individually, neither bring 71 distinctive character to the neighborhood); the trees are not the last trees on the property; the 72 trees do not serve as a visual screen between different types of zones; they are not street trees; 73 and the trees are not located within a stand of trees, nor are they part of a continuous canopy . 74 The Exception for Criterion (3)(b) is not met because the Applicant did not submit an arborist 75 analysis to address whether the trees are causing or are likely to cause damage to an existing 76 structure or infrastructure; and, why pruning would not address the risk of damage. 77 78 In conclusion, staff recommends the denial of AP 24-01 [499-24-000308-TREE]. Staff noted that if 79 the Commission finds, from the evidence presented at this public hearing, that the criteria for 80 Type II tree removal are met, staff recommends submission of a revised mitigation plan as a 81 condition of approval, showing two native trees to be planted on site, as required by LOC 82 55.02.084(4)(a)(iii). 83 84 Questions of Staff 85 86 Chair Sangrey requested a description of the process for Hazard Tree applications. Ms. Cissell 87 explained that hazard tree removals can be approved either because the tree is likely to fall, as 88 Development Review Commission Minutes August 5, 2024 Page 3 of 9 evidenced by cracking, splitting, leaning, or physical damage to the tree , or through evidence 89 showing that there would be no other reasonable alternative than removal of the tree to avoid 90 imminent damage to persons or structures . Commissioner Dewes followed on this vein by asking 91 for confirmation that the City's contract arborist found the trees to be in good condition, not 92 presenting as a hazard. Ms. Cissell confirmed that the contract arborist did not find the trees to 93 be a hazard (Type II applications can be converted to a Hazard application based on the contract 94 arborist's assessment). 95 96 Vice Chair O'Connor inquired how they would approach the type of situation, such as the 97 unprecedented storm seen during this last winter (noting his own observations), as the City Code 98 did not address this. Johanna Hastay, Planning Manager, indicated that she did not think that this 99 was the appropriate venue to discuss revised tree removal criteria or potentially new permits, 100 and that discussions and deliberations should be limited to the record before them (this is a Type 101 II application, not a Hazard Tree application). Ms. Hastay informed members that the Applicant 102 had never submitted a Hazard Tree removal request; however, they could have hired a private 103 Tree Risk Assessor Qualified (TRAQ) arborist to complete a deeper evaluation of the tree s. 104 105 Applicant Testimony 106 107 Homayon Hajarizadeh, Co-Applicant/Owner, stated that they have lived in their home since 2001. 108 He noted that the Type II permit was the closest application he could use because it was clear 109 that the trees would not meet Type I (the application that staff directed him to apply for). He then 110 addressed the reasons for denial: 17 of his neighbors disagreed that the removal would cause 111 alterations to the distinct features of the skyline; and 16 trees within close proximity to their trees 112 have fallen on homes and in the street in the last 15 years (many deemed to be "healthy" prior to 113 their fall, as noted in Exhibit F -007). He opined that the winter storms would keep becoming 114 stronger and stronger, and that history would repeat itself. He shared that an arborist found 115 fungus on the trees in January and that the arborist felt the trees would eventually come down (a 116 non-TRAQ arborist). He expressed that they have been lucky that no one had been hurt by the 117 falling trees. He requested that approval be granted to them, as it had been for their nearby 118 neighbors. Mr. Hajarizadeh informed members that he did pay a TRAQ arborist for an analysis 119 and was told that the City's strict criteria for a Type I permit was not met . He opined that if the 120 Type I permit criteria were changed, his application may then meet that criteria. In summary, he 121 opined that the request was more than reasonable, as it was for the safety of his family and his 122 neighbors. Lastly, he shared key points from the letters his son and wife submitted (Exhibits G-123 003 and G-002). 124 125 Nazinin Karimi Hajari, Co-Applicant/Owner, shared that they have loved living in their home and 126 that the trees were a big selling point when they purchased it . She opined that it was unrealistic 127 to expect them to live in their home when they did not feel safe because they did not have 128 permission to take the trees down for the safety of their neighborhood. 129 130 Questions of Applicant 131 132 Commissioner Leek asked Mr. Hajarizadeh to confirm that, for some of the examples given, the 133 tree removal permits filed by his neighbors were approved because the trees were unhealthy in 134 Development Review Commission Minutes August 5, 2024 Page 4 of 9 some way, and that he understood that his neighborhood was without power not because of the 135 trees downed in the cul-de-sac (being underground) but because of a separate incident far away. 136 Mr. Hajarizadeh replied that the tree root cut through the gas line, which then caused an 137 underground fire, and that it was also next to the Portland General Electric (PGE) power box that 138 went to the entire neighborhood. He added that they did not have access their homes through 139 their backyards for two days while fire crews put out the gas fire . Mrs. Hajari relayed that their 140 family had to stay with family for the week their cul-de-sac was without power. She pointed to 141 the incident in winter of 2021 where three of their trees fell after being found to be "healthy" the 142 summer prior. Commissioner Leek then inquired whether the Applicant understood the 143 precedent that would be set by an approval of this application and asked where the carte-blanche 144 removal of trees might then be stopped. 145 146 Mr. Boone reminded members that they were reviewing this application pursuant to LOC 147 55.02.085.3, under LOC 55.02.080, and that healthy trees falling during a storm was not criteria 148 that had already been adopted. To Vice Chair O'Connor's and Commissioner Leek's questions, Mr. 149 Boone opined that the Applicant was asking for different Code standards, which would allow 150 removal of any tree that was within its height from a structure or utility . He asked that the 151 Applicant and any other person testifying to understand that this was the challenge that the 152 Commission had, as what was being requested was not a current code criterion, rather, it was a 153 Code amendment which would be brought before the City Council. Mr. Hajarizadeh stated that 154 they were not asking for a clear cut; pointing to the other fallen trees due to the area's 155 microclimate, and how his trees no longer had the wind break protection of those trees . He 156 opined that they were dangerous trees but acknowledged that these trees did not meet the very 157 strict TRAQ criteria. 158 159 Vice Chair O'Connor inquired whether the neighborhood's fallen trees broke off or were 160 uprooted. Mr. Hajarizadeh answered that almost all of them had uprooted; further explaining 161 that the roots were very shallow and could not be evaluated by the arborists. 162 163 Public Testimony 164 165 None 166 167 Deliberations 168 169 Commissioner Dewes stated that he appreciated what the Applicant went through, and the 170 trauma described. He shared his own experiences regarding trees falling on his own property and 171 on the properties of his neighbors. He opined that the balance of maintaining the urban forest 172 was important to the core of the City, especially when there are no issues of sickness in the trees . 173 He agreed with staff's assessment that the criteria for Type II tree removal was not met, and that 174 the application should be denied. 175 176 Vice Chair O'Connor opined that there was a risk with not being able to evaluate the root 177 structure and sub-soil, and that the area in question has shown that the trees were being blown 178 over because of those conditions. He stated that he understood that the Applicant was looking 179 out for the life, safety, and health of their family and neighbors . He then indicated that he 180 Development Review Commission Minutes August 5, 2024 Page 5 of 9 supported the trees being removed because the City was not in a great position, with the current 181 Code, to evaluate below the ground. 182 183 Commissioner Leek relayed that she had been witness to many trees coming down in her 184 neighborhood, mainly because of the high water table, which lent to the instability of the trees . 185 She opined that allowing these trees to be removed would open up all of Westlake to say that 186 they had the same hazard and want to take their trees down; leaving more dogwood trees in the 187 place of all of the native oak trees. For those reasons, she stated that she will decline to allow th is 188 permit to go through. 189 190 Chair Sangrey reminded all members that they were charged with implementing the Code, 191 without any prerogative to change it. He stated that, in this case, the Code was clear, and that 192 this application did not qualify for approval. He indicated that he disagreed with the comments 193 that the trees had not been assessed adequately; opining that the expert would have been aware 194 of the underlying ground conditions. He then stated that he would support staff's 195 recommendation to deny the application. 196 197 Vice Chair O'Connor stated that he felt there could be some middle ground; asking that this be 198 sent back for further evaluation as hazard trees, rather than approving or denying this 199 application. Chair Sangrey noted that the Code allowed for a separate reapplication. 200 201 Commissioner Dewes moved to deny approval of AP 24-01 [499-24-000308-TREE], as the criteria 202 was not met (LOC 55.02.080(1) and LOC 50.02.080(3)(b)). Seconded by Commissioner Leek and 203 denied 7:0. Mr. Boone instructed staff to return with the Written Findings, Conclusion, and Order 204 on Monday, August 19, 2024 at 7:00 PM. 205 206 ************* 207 208 LU 23-0045: A request for approval of a 2-parcel minor partition resulting in one flag lot with 209 minor variances to the front and rear setbacks for the non-flag lot. Nine trees are proposed for 210 removal. Staff issued a decision to approve, and that decision was appealed by the Forest 211 Highlands Neighborhood Association. 212 213 This site is located at 2112 Goodall Court (Tax References: 21E04BB05800 & 21E04BB05900). The 214 Staff Coordinator is Courtney Simms, Associate Planner. 215 216 Mr. Boone gave an overview of the public hearing process, outlined the applicable criteria and 217 procedures, and gave instructions for any verbal testimony given. 218 219 Mr. Boone asked DRC members to declare any ex parte contacts (including site visits), biases, or 220 financial conflicts. All DRC members present declared that they had no ex parte contacts, conflicts 221 of interest, and no bias. There were no challenges to the Commissioners’ rights to consider the 222 application. 223 224 Staff Report 225 226 Development Review Commission Minutes August 5, 2024 Page 6 of 9 Prior to presenting the staff report, Courtney Simms, Associate Planner, added Exhibits E-013 and 227 G-508 to the record. 228 229 The site is located at the intersection of Goodall Road (Neighborhood Collector) and Goodall 230 Court (Private Access Lane), in the Forest Highlands neighborhood. The site is comprised of two 231 tax lots but is currently only one legal lot of record, for development purposes . The site is 232 surrounded by a mixture of incorporated and unincorporated properties and is zoned R-15. The 233 Applicant is proposing to divide the lot into two parcels, aligning with the current tax lot 234 configuration. The existing dwelling, on what will be Parcel 1, will remain, and the parcel will 235 become a flag lot, by definition. Goodall Court was created as part of a subdivision while in 236 unincorporated Clackamas County, and many of the properties around the site are still 237 unincorporated, except the subject site and properties directly to the north. Parcel 2 will be 238 required to have access on Goodall Road, since Goodall Court, a private access lane is at capacity. 239 240 Dimensional standards are met, including Flag Lot standards with the existing dwelling for Parcel 241 1. There is a condition of approval (COA) which requires that a portion of the existing deck be 242 removed to comply with the 10' side yard setback. The Applicant is requesting a minor variance to 243 the front (10%) and rear (15%) setbacks on Parcel 2. Staff finds that the criteria is met for the 244 minor variance setback requests. 245 246 Public Improvement Requirements: LOC 50.06.008.1, Utilities/Streets & Sidewalks applies to 247 Goodall Road, designated Rural Neighborhood Collector right-of-way (ROW). This includes: 6'-248 wide pathways and 8'-wide stormwater swales on both sides of the street. Additional ROW must 249 be dedicated as the existing ROW is insufficient to allow for the frontage improvements. The 250 Applicant is dedicating approximately 6' of ROW along Parcel 2's frontage on Goodall Road. Parcel 251 2 does not qualify to have the Public Infrastructure Reduction or Elimination (LOC 50.06.008.3.e ), 252 nor the Sidewalk Waiver (LOC 42.08.400) exceptions apply. The properties to the north and south 253 of Parcel 2 have the required public improvements . The Code allows for some flexibility in the 254 design of the rural fringe. The Applicant has proposed to use the culvert under the new driveway 255 serving Parcel 2 in place of the swale. 256 257 Tree Removal: 11 trees total are requested for removal for private utilities or public 258 improvements. This includes trees which would be too impacted by the construction to survive, 259 per the Applicant's arborist. Two of these trees are not subject to the Type II criteria. Of the nine 260 Type II trees requested for removal, two trees (#23 and #29) require an exceptions analysis under 261 Criterion (3) because sub-criterion are not met. Tree #23 is an 18" Oregon ash was found to be a 262 street tree. Tree #23 is located within the public ROW, next to an existing stormwater ditch, and 263 abutting the property to the south. There are no alternative locations to connect the onsite 264 stormwater to the existing stormwater drainage system along the street. Tree #29 is a healthy, 265 noninvasive, 38" Oregon white oak, found to be significant based on its large stature . Tree #29 is 266 located where the driveway, pathway, and swale are required. Design alternatives are limited due 267 to access spacing, removal of a different tree (#32), sight-distance requirements, and impacts to 268 the root zone. Staff concurs with the Applicant's arborist that that no reasonable alternatives to 269 removal of the two trees exist; finding that the exception for Criterion (3) are met. 270 271 Staff recommends Approval, with COAs listed in the staff report. 272 Development Review Commission Minutes August 5, 2024 Page 7 of 9 273 Questions of Staff 274 275 Vice Chair O'Connor asked how pathways were addressed for existing properties not under 276 development. Will Farley, Assistant City Engineer, answered that properties within the City can 277 have pathways constructed as part of a Capital Improvement Project (CIP). 278 279 Chair Sangrey asked how this would apply to lots within Clackamas County . Mr. Farley explained 280 that lots within the County would need to be purchased for the CIP to build the project. 281 282 Vice Chair O'Connor then requested the lineal footage for the existing sidewalks . Mr. Farley 283 replied that the east side of Goodall Road needed 980' (including 310' of gravel) to complete the 284 sidewalks/pathways (as part of the CIP from Knaus Road to Country Club Road), while the west 285 side needed 900' (with this property included, and as part of the CIP from Knaus Road to Hazel 286 Road). 287 288 Commissioner Mino asked for clarification regarding access to the private access lane, Goodall Ct. 289 Ms. Simms relayed that the current access lane was nonconforming to the current standards that 290 limits access to 3 lots per lane, as it was constructed while in the County, and that increasing the 291 nonconformity was not allowed without approval of a major variance. 292 293 Applicant Testimony 294 295 Bruce Goldson, with Theta, LLC and the Applicant's Representative , described the history of the 296 project and the effort taken to try to save the trees . He stated that they agreed with staff's 297 assessment that they met the Code criteria. He pointed to the arborist's report, which noted that 298 the 38" oak tree touched the edge of the pathway . He explained that the site would need to be 299 graded to construct the driveway, pathway, and swale. He opined that they could do nothing 300 different to meet the Code. 301 302 Questions of Applicant 303 304 Vice Chair O'Connor inquired whether mitigation trees were required. Mr. Goldson affirmed that 305 mitigation trees were required. 306 307 Public Testimony 308 In Opposition 309 310 Bill Jaursch, Board Member of the Forest Highlands Neighborhood Association (FHNA) and 311 speaking on their behalf , 1485 Timberline Drive, Lake Oswego, OR 97034, relayed that the goal of 312 FHNA was to preserve trees while improving pedestrian access . He stated that they recognized 313 that the trees proposed for removal were healthy trees; however, 8 members of FHNA 314 commented that they were opposed to the removal of the trees . He shared that the FHNA had 315 the lowest tree canopy change (only an increase of 1-percent), as many trees had been lost due 316 to development. He pointed to the Knaus Road CIP, where it crossed County property, was 4'-317 wide instead of 6'-wide, and only had one tree removed. He requested that a similar plan be 318 Development Review Commission Minutes August 5, 2024 Page 8 of 9 considered for this project so more trees could be saved; utilizing raised paths with curbs and 319 plant buffers, and underground drainage. Mr. Jaursch opined that pedestrians would need to 320 walk on the street once they come to the County -owned, non-developed properties. He 321 expressed concern over the need to avoid the demolition of the current pathway for future 322 connections. They requested that the City Engineer alter the design, as allowed by the Code, to 323 prevent the need for High School students to cross Goodall Road. 324 325 Commissioner Leek asked if this design could be changed. Mr. Farley explained that this would fall 326 to the Transportation System Plan (TSP) standards of having the pathway in the swale, where the 327 Knaus Road project fell under the CIP. He further noted that this project was driven by 328 development, and that they were exacting ROW to construct the necessary improvements on this 329 property. Mr. Boone pointed to development standards are now being required to have clear and 330 objective standards and the utility code was rewritten to accommodate this . He indicated that the 331 Applicant did not request a variance to those standards. 332 333 Mark Puhlman, 13120 SW Thoma Road, Lake Oswego, OR 97034, requested that Exhibit E-013 be 334 shown on the screen. He pointed to the several gaps on the west side of Goodall Road not having 335 sidewalks/pathways, and then suggested that the required improvements be moved to the east 336 side of Goodall Road, directly opposite the application property. He acknowledged that the City 337 would need to pay for the improvements on the two southern properties on the east side but 338 opined that it would be safer for the school students if this recommendation were implemented. 339 340 Vice Chair asked for confirmation that the developer was agreeable to this suggestion. Mr. 341 Puhlman affirmed that the developer would be open to this suggestion. 342 343 Commissioner Dewes asked if the owners of the County properties were in agreement. Mr. 344 Puhlman replied that there was a parking strip where the pathway would be built but he had not 345 spoken to the owners about this suggested change. 346 347 Commissioner Leek inquired of staff if the Engineering and Planning had any thoughts on this 348 idea. Ms. Hastay clarified that the properties across the road from the subject property were not 349 part of this application, and that there was insufficient ROW to obtain the correct design, as 350 shown in the Rural Fringe cross-section (requiring the City to take that property from the owners 351 currently in the County). Mr. Farley affirmed Ms. Hastay's statement; adding that there was 352 approximately only 13' between the edge of the roadway and the property line (the 8' swale, the 353 6' pathway, the 3' shoulder, and buffers between could not be accommodated). He then pointed 354 to the approved CIP for the construction of the pathway on the east side, as it was funded . Mr. 355 Puhlman asked when that might happen. Mr. Farley indicated that the Transportation Advisory 356 Board was deliberating on readdressing it to the City Council for funding for this next biennium. 357 358 Applicant Rebuttal 359 360 Mr. Goldson explained that they asked City staff about the possibility of a major variance to allow 361 access to Goodall Ct., and they were advised that it would be unlikely to be approved. They 362 continued with the current TSP and then asked if they could put their sidewalk on the other side 363 of the street. They were told that this would not be acceptable. He reiterated that a 4'-wide path 364 Development Review Commission Minutes August 5, 2024 Page 9 of 9 would only gain an additional 2' of clearance from Tree #29 and the roots were more extensive 365 than this distance. He noted that the stormwater must be conveyed to the end of the property to 366 meet with the storm system coming across Goodall Ct. He acknowledged that they agreed with 367 the FHNA that keeping the tree would be advantageous . He relayed that the swale also provided 368 water quality for Goodall Road. He pointed again to the grading needed to construct the pathway 369 and swale. 370 371 Mr. Boone asked if anyone wished to submit additional new testimony or if the Applicant wished 372 to submit a final written argument. No such requests were made. 373 374 Deliberations 375 376 Mr. Boone instructed Chair Sangrey to proceed with deliberations. 377 378 Commissioner Dewes stated that they should leave the pathway on the west side because it was 379 required in the TSP and because the CIP would take care of completing the pathway on the east 380 side. 381 382 Chair Sangrey moved to approve LU 23-0045, as conditioned by staff. Seconded simultaneously 383 by Commissioner Dewes and by Vice Chair O’Connor and passed 7:0. Mr. Boone instructed staff 384 to return with the Written Findings, Conclusion, and Order on Monday, August 19, 2024 at 6:00 385 PM via Zoom (as agreed upon by all members). 386 387 SCHEDULE REVIEW AND MANAGEMENT UPDATE 388 389 Ms. Hastay, updated DRC members on upcoming meeting s: 390 391 August 19, 2024 has the Findings from tonight’s hearings. 392 393 There are some applications in progress but not yet scheduled for hearings. 394 395 ADJOURNMENT 396 397 Chair Sangrey adjourned the meeting at 9:06 PM. 398 399 400 401 Respectfully submitted, 402 403 404 /s/ 405 406 Kat Kluge, Administrative Support 407