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CITY OF LAKE OSWEGO
Development Review Commission Minutes
December 1, 2014
Vice -Chair Brent Ahrend called the meeting to order at 7:00 p.m. in the Council Chambers of City
Hall, 380 A Avenue.
Members present: Vice -Chair Brent Ahrend, Ann Johnson, Paden Prichard and David Poulson.
Kelly Melendez and Gregg Creighton were not present.
Staff present: Hamid Pishvaie, Assistant Planning Director; Jessica Numanoglu, Senior
Planner; Todd Knepper, Engineering Department; Evan Boone, Assistant City
Attorney; and Janice Reynolds, Administrative Support
MINUTES
Mr. Prichard moved to approve the September 3, 2014 minutes. Mr. Poulson seconded the
motion.
FINDINGS
LU 14-0010: A request by Senior Holdings, LLC, for approval of Conditional Use and Development
Review Permits to construct a 133 -unit combined residential care and congregate housing
development. Seven trees will be removed to accommodate site improvements. Location of
Property: 3900 Kruse Way Place (ax Lot 3300 of Tax Map 21 E 08BA).
Ms. Johnson moved to approve LU 14-0010-1861. Mr. Prichard seconded the motion.
PUBLIC HEARING
LU 14-0046: A request by Silver Oak Custom Homes for approval of the following:
• Delineation of a Resource Protection District;
• An 8 -lot subdivision; and
• Removal of 13 trees
Location of Property: 850 Cedar Street (Tax Lots 5200, 5201, 5300, 5400, and 5401 of Tax Map 2
1 E 10DC). Continued from November 17, 2014.
Vice -Chair Ahrend opened the hearing. Each of the Commissioners present stated he/she had no
bias, ex parte contact or conflict of interest.
Questions of Staff
Staff confirmed that Condition A(6)(d) should be corrected to specify Lots 1-8. They clarified that it
was not unusual for staff to recommend approval of a project with conditions premised upon
approval of a street vacation by the City Council. The area to be vacated had been counted as
developable land. There was an existing easement for the public storm drain through Tax Lot
6500.
Ms. Numanoglu clarified in regard to Flag Lot standards: the applicant has selected the 22 -foot
allowed default building height because it was greater than the average of the height of existing
dwellings on abutting properties, but portions of roof could be up to 28 feet due to certain allowable
exceptions. The front yard setback plane did not apply to flag lots. The access lane had to be a
City of Lake Oswego Development Review Commission
Minutes of December 1, 2014 Page 1 of 7
minimum of 20 feet wide, or 26 feet wide where there was parking on one side. Four parking
spaces for the eight lots met the minimum parking requirement.
Mr. Boone was asked and advised that the Dolan v. City of Tigard test of proportionality of exaction
to development impacts did not take into account temporary damage, but the City had the ability to
recover the damages when construction traffic made the street condition worse. Mr. Knepper
clarified that the City would allow water meters in the private access lane. Mr. Poulson and Mr.
Knepper discussed Mr. Poulson's concern that the proposed drainage plan would direct
stormwater away from the natural resource and it would get less water. Mr. Knepper explained why
staff had found drainage patterns would be maintained.
Deliberations
Mr. Prichard referred to Condition A(13)(b), which required a fence along the west property line
abutting the access lane; or, as an alternative, a 5 -foot landscaped buffer in an easement over the
abutting lot, which was owned by the applicant, but was not part of the proposed subdivision. He
indicated he did not believe either option was appropriate. The fence was too close to the road and
the landscaped area would be part of the yard of a property that was not part of this subdivision
and would not be under the control of this homeowners association. He suggested moving the road
five feet away from the west property line to make room for a 5 -foot landscaping strip. He
suggested that for a properly -designed entrance there should also be a 5 -foot wide landscaped
area along the east side of the road. Mr. Prichard shared a sketch he made on a copy of the plan
showing potential adjustments necessary to achieve those objectives.
Ms. Numanoglu clarified that the Code required a 5 -foot landscaped buffer on either side of the
access lane unless they could show it was not really feasible. In that case they could use some
other screening such as a fence. The alternative to a fence could be to provide a 5 -foot easement
for landscaping on the west side of the road and within the subdivision. It would have to be
recorded and maintained as a landscaped area. The related adjustments would change the design
of the subdivision. Mr. Prichard indicated he thought there was room to make the adjustments. Mr.
Poulson indicated that he was hesitant to engineer from the bench and change the road design as
it might affect other aspects of the project.
Mr. Prichard recalled that the applicant might use the existing storm drain through Tax Lot 5900.
He suggested a condition to prohibit that unless they had a way to treat runoff from the roofs on
Lots 6, 7 and 8. He did not think they had room to do it because of the steep slope. He and Mr.
Poulson discussed it and Mr. Poulson advised he initially had the same concern, but after studying
the proposal he thought it was feasible; roof runoff did not have the level of pollutants as other
runoff; and what was proposed met the code. The Engineering staff anticipated the future houses
would have downspout configurations that would work. They would look at how the applicant
proposed to do it in the final design phase.
Mr. Prichard suggested the applicant should be required to connect the pedestrian pathway going
towards Freepons Park from the development with the one in the park instead of dead -ending it at
the property line. In regard to whether they could require such an off-site improvement, Ms.
Numanoglu observed that five of the lots directly abutted the park and three lots would use the
pathway to get to the park. Mr. Boone was asked and advised that they were trying to mitigate
vehicle traffic generated by additional people in the new subdivision with pathways which provided
for offsite connection. Twenty feet of soft surface pathway might not be a big burden. It should be
subject to the approval of the Parks and Recreation Department, which might not want it for some
reason.
Mr. Poulson questioned that they could require the exaction, noting that if the path ended at the
property line the Parks and Recreation Department could always extend the pathways in the
future. This would be requiring the applicant to create a pathway where none existed, which was
different that requiring them to pave existing Cedar Street to offset their impacts to the street.
City of Lake Oswego Development Review Commission
Minutes of December 1, 2014 Page 2 of 7
Mr. Prichard indicated he supported requiring a soft surface path for subdivision residents and
other people to use to get to the park. It would be a relatively easy thing to do and complete the
pathway. Without it people would get to the property line and it would end there. Mr. Ahrend
indicated he thought they could impose the condition as it seemed that it would be proportionate to
the impacts to make the last 20 -foot connection with a similar type path. He noted the plans in
Exhibit E-14 showed a 6 -foot wide, soft -surface, pedestrian path. Staff confirmed it would have to
be constructed per the approved plans.
Mr. Prichard discussed proposed tree removal. He explained that he thought Tree #15466 on the
south boundary of Lot 3 could be saved and was worth saving. The existing asphalt around it could
be removed without damaging it due to minimal grading in that area. It was in the rear yard of the
future house and it would be an important buffer between the house and the park. The consulting
arborist listed it as being in okay condition. Mr. Ahrend noted it appeared to be outside of the
building envelope. In regard to the applicable criteria Mr. Prichard clarified for Mr. Boone that he
thought it was not necessary to remove that tree for development purposes. He also suggested it
was not necessary to remove Tree 15467 to develop the subdivision. It would serve as a valuable
buffer. He clarified that even though the subdivision application did not propose to remove Tree
#15467 he wanted a condition to ensure the tree could not be removed later on to build a house.
Mr. Prichard suggested retaining Tree 15390, a sweetgum tree on the northeast side of Lot 3
which was proposed to be removed from an area where they were going to stockpile material. He
suggested they could do that somewhere else and it was not necessary to remove this tree for
development. He noted there was very little grading proposed in that area. When Mr. Ahrend noted
the tree was within the allowed building envelope Mr. Prichard said he believed that the north/south
lot lines could be adjusted to put it near the property line. He shared a sketch he had made on the
plan that angled the property line and would allow that tree to be preserved. It would be the only
mature tree left in the center of the development.
Ms. Numanoglu advised of frequent applications to remove sweetgums as they tended to have
aggressive root systems that buckled sidewalks and tended to drop a lot of limbs. Mr. Poulson and
Mr. Prichard referred to the grading plans. Mr. Poulson anticipated the amount of grading (two feet)
would kill the tree. Mr. Prichard suggested the reshaping of the north sides of Lots 1, 2, 3 , 4 and 5
was unnecessary for site development except for the area right along the road. If they thought the
tree was worth saving the grading that was going to take place there was not essential for
development. Mr. Poulson suggested the grading might be essential in order for the applicant to
achieve things like roadway drainage. For that reason he would not say it was unnecessary.
Mr. Boone observed the Commissioners were discussing imposing a condition that a tree could not
be removed for development purposes now or in the future. He read aloud Code regarding their
conditioning authority and summarized the pertinent parts of it that there had to be a relationship
between the proposed development and the condition to save the tree related to a need for public
services or facilities created or contributed to by the proposed development; or, to mitigate a
negative impact created or contributed to by the proposed development.
Mr. Ahrend indicated he would be okay with a condition to preserve Tree 15466 but he did not
favor a condition to preserve Tree 15390 because it was within an area they were showing would
be graded; it was within the potential building envelope; and he thought it would be very difficult to
preserve it. He said he did not think there was any need to ask that those trees be preserved in the
future. As each home was built he imagined the owners would view the trees as an amenity or they
might have other reasons to cut them down. When Ms. Johnson recalled one tree was thought to
be compromised because of the asphalt around it, Mr. Prichard pointed out in the photograph of it
the applicant had submitted that the base was surrounded by plants, then cobblestone, and then
asphalt, which was likely three feet away. He thought the 2"-3" thick asphalt could be removed
without damaging the tree.
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Minutes of December 1, 2014 Page 3 of 7
Ms. Johnson questioned how they could approve a tiny access street with four parking places. It
had to fit into the neighborhood, but it severely impacted the existing neighborhood because it was
a tiny little street and there was not sufficient parking. If ten people came to an open house some
cars would have to be parked on narrow Cedar Street or elsewhere on the access lane where they
would obstruct fire access. Cedar Street was already impacted because Bickner was narrow with
no parking on it. Mr. Prichard discussed that the only other parking spaces along the access lane
besides the four on -street spaces were the driveways of three lots and that one of the spaces was
in the turnaround.
Mr. Poulson indicated he did not like that the applicant was trying to use the flag lot standards to
make a development like this happen, but if they met those requirements the Commissioners had
to approve it, unless, perhaps, it was adversely impacting the neighborhood. However, because
there were not clear enough standards and rules for the applicant to follow related to impacting the
neighborhood he was inclined to say that they met the rules and he would approve the
development on that basis.
Ms. Johnson confirmed for Mr. Boone that the criterion she had referred to was under LOC
50.07.007 Flag Lots, Purpose and Applicability, which said the purpose of the flag lot section was
to provide standards for site, building design compatibility of the new development with the existing
neighborhood character. He advised that staff's interpretation was that the Purpose section was
not binding development standards that an applicant had to address.
Mr. Ahrend indicated that he shared their concerns about parking. He was not as worried about the
extent of the improvements to Cedar Street. When streets were narrower it kept speeds down.
There was not much traffic out there now and this development would not add a significant
amount. It would still be a fairly low-volume street. He indicated that he did not like the fact that an
applicant could develop under the Flag Lot Code this way but the Code allowed it. He would have
preferred to have this development reviewed together with the other adjacent lots with
improvements made to Bickner Street and a public street serving the development. But the Code
allowed the applicant to do what they proposed to do. He believed the proposal complied with the
Code. He supported imposing a condition to retain the tree on Lot 3. He supported a condition to
extend the pathway to the existing path within the park pending approval of the Parks and
Recreation Department. He would prefer to see a 5 -foot landscape strip along the west side of the
access lane but was not comfortable imposing that condition on the applicant. He strongly
encouraged them to do that. He thought they had the ability to redesign their project to have a 5 -
foot landscape area on their site.
Vice -Chair Ahrend then polled the Commissioners regarding conditions of approval. Mr. Poulson
would impose conditions to preserve the tree and extend the pathway, subject to Parks and
Recreation approval. Mr. Prichard's approval depended on them imposing a condition calling for 5 -
foot of landscaping along the west side of the north/south section of the access lane. He thought it
was appropriate to require extension of the pathway and save the tree. He indicated there were a
number of other things that he did not like about the application. He said he would like to see a
condition to limit the height to 22 feet. He did not think they should be allowed to go the extra six
feet to 28 feet high because of the way it was stated in the Code. It would allow them to bring the
peak of a roof on up to completion instead of just adding something like a cupola or a tower. It was
out of character in a neighborhood where the average height was 22 feet. He clarified that he
realized that the Code had a provision that would allow for extra height but he did not agree that it
applied here.
Mr. Ahrend discussed why he agreed the height should be limited to 22 feet with no exceptions
allowed. The calculation of averaged height factored the maximum height of the abutting houses,
including any of the features the Code allowed as exceptions. The result was 22 feet average. To
allow the proposed development to be higher would make it out of character with the
neighborhood. Mr. Poulson recalled the code called for a development to be commensurate with
City of Lake Oswego Development Review Commission
Minutes of December 1, 2014 Page 4 of 7
the character of adjacent developments of good design. That meant from an architectural point of
view they could not design buildings at height that would not be consistent with the character of
adjacent developments of good design.
Ms. Numanoglu corrected and clarified information staff had provided to Mr. Prichard when he had
asked about measuring height on flag lots using the lot with sloping topography methodology. The
applicant could not use that methodology to have 22 feet at the highest elevation of the building
envelope and plus 4 -foot grace, plus the code -allowed height exceptions. The methodology applied
to situations where the averaged height exceeded the height limit on a flat lot.
Mr. Boone asked the Commissioners to discuss what the basis in the findings would be for
imposing a condition limiting building height. Was it their conditioning authority (he had previously
read aloud) or how they interpreted the Code exceptions language? He related that staff had
never found the ability to impose additional restrictions on building height on flag lots under the
conditioning authority. They had never looked at the exceptions the Code permitted and described
as exceptions that may or may not be granted.
Mr. Prichard and staff discussed the dimensional table graphic under LOC 50.04.001. He
interpreted that it showed the completion of a sloping roof, not just a cupola or dormer. Mr.
Pishvaie recalled the legislative history of the exceptions language for 'roof form or architectural
features.' When the Infill Task Force was considering reducing the maximum allowed building
height by 5-7 feet, the architects on the Task Force suggested allowing some architectural features
like cupolas and dormers that were of good design to penetrate the maximum height. However,
during the public hearing process, the reference to roof form was added to the list of elements that
could qualify for an exception. Mr. Ahrend, Mr. Poulson and Ms. Johnson each indicated that
because the Code exceptions were allowed they would not impose any further restrictions on
height.
The Commissioners discussed requiring 5 -foot of landscaping alongside the access lane, noting it
mean redesign. Mr. Prichard observed that moving the road five feet would improve the curve at
the end of Cedar Street; that there was enough land; and that the overall lot size stayed the same
because the landscaped area would be part of a lot.
Mr. Ahrend noted the slope and indicated he thought it reduced the amount of area available to fit
a building on the lot. Mr. Prichard agreed it reduced it by five feet, which he did not think was
significant. Mr. Ahrend indicated he would like to see the applicant do that but he was not
comfortable imposing that sort of a condition. Mr. Poulson referred to the grading plan and noted
the applicant would have to modify how the slope tied to the building pad on Lot 8 and that might
reduce the buildable area. Mr. Prichard observed the setback for the buildable area of Lot 8 was
right at the top of that slope. It would change that five feet but the relationship would be the same.
Ms. Johnson indicated she did not think they could require the applicant to shift the roadway. If
they could have done it easily they likely would have proposed it. A fence along the side was going
to be ugly, if that was what the applicant choose to do. Mr. Poulson observed there was much
going on there from an engineering perspective, with utilities and a pretty significant slope, so he
was not comfortable imposing the condition without at least hearing from the applicant.
Mr. Prichard and Mr. Poulson were concerned that the applicant's plans showed they were grading
a landscaped area on the west side of the road on an adjacent lot that was not in the subdivision
and there was no condition requiring them to get an easement for it. The applicant owned the
adjacent lot now, but might not in the future. Mr. Ahrend suggested they could impose a condition
requiring them to either obtain an easement over that area or shift the road. Staff advised
Condition A(13)(b) offered the alternative that the applicant could opt to do it on the adjacent parcel
if they could obtain and record an easement from the adjacent property owner (Tax Lot 5101), who
was currently the applicant.
City of Lake Oswego Development Review Commission
Minutes of December 1, 2014 Page 5 of 7
Mr. Prichard indicated he would just require them to shift the road. Ms. Johnson, Mr. Prichard and
Mr. Poulson each indicated she/he did not support a fence. Mr. Poulson and Mr. Prichard were
concerned it would be right on the road and create a safety risk when drivers did not see
pedestrians coming from behind it. Ms. Johnson suggested they require five feet of landscaping,
which the applicant could chose to either get via an easement on the adjacent property or put it on
their own property. Mr. Prichard did not support the landscape buffer being on an adjacent property
that was someone else's yard, even with an easement.
Staff clarified the fence was limited to four feet high within ten feet of the street and that they
recommended allowing a fence if there was not adequate space for the landscape buffer. Ms.
Numanoglu read aloud from the staff findings that recognized the site's limited frontage on Cedar
Street and that the need to design the access lane to meet fire lane requirements for width and
turning radius meant there was not sufficient area on the west side of the access lane to
accommodate a landscape buffer. Mr. Prichard said he did not agree with that because it was
feasible for the applicant to provide the 5 -foot landscape buffer within the subdivision because they
had plenty of land and their lot sizes were big enough. Ms. Numanoglu was asked and confirmed
that section of access lane was proposed to be 20 feet wide which was code minimum.
Applicant's response to new potential new conditions of approval.
Roger Edwards, Silver Oak Custom Homes, 14102 Goodall Road (97034) asked to submit a
drawing but did not after staff advised it was not already in the record. He clarified that there was
no fence issue and he would not be moving the road because he intended to use an easement that
ran along the entrance driveway as landscape buffer. A condition to have landscaping instead of a
fence would be okay. He owned the two lots adjacent to the subdivision site and where the
easement was going to be. Their orientation had been changed so they fronted on Bicker and the
easement would not be in side yards. In response to concern that if the adjacent parcels came
under different ownership he would have to move the road, he said he would give that easement to
the subdivision immediately. He said he did not have any objection to extending the pathway into
the park. In regard to the tree the Commissioners wanted to save he said that was fine and in fact
he was keeping the other tree in the rear yard as well as they helped those back yards and
separated them from the park. He did not know why his engineers thought that this one had to be
removed. He specified that he would give a 5 -foot easement down the side of the driveway and
landscape it.
Mr. Boone clarified that the term `preserve' meant they were not authorizing the tree's removal in
this application. The applicant indicated that was no problem.
Mr. Prichard noted there was nothing showing the reorientation of Tax Lots 5100 and 5101 and
questioned whether those lots could front on Bickner Street, which was 13 feet wide, and the effect
on the setbacks of the homes there. Staff advised against examining that lot line adjustment, as
that change had already been processed. If it impacted side yards those homes could be
positioned so that 10 feet of the combined setback requirement of 15 feet could be on the
easement side. The southerly lot actually had a 10 -foot strip between the north parcel and the
subject site to provide access for sewer purposes which could be used for a variety of purposes.
What they heard from the applicant was that he would do landscaping there. Mr. Prichard then
suggested a condition calling for five feet of landscaping and an easement for it instead of a fence.
Mr. Ahrend indicated he thought they still needed to offer the alternative to do it on or off-site. Mr.
Poulson agreed.
Mr. Poulson moved to approve LU 14-0046 as conditioned with the following changes:
• Tree #15466 was deleted as being removed.
• The pedestrian pathway that connected to the park property on the south was to be extended
into the park property contingent upon Parks and Recreation Department approval.
City of Lake Oswego Development Review Commission
Minutes of December 1, 2014 Page 6 of 7
• A 5 -foot landscape buffer on the west side of the access lane was to be provided either within
an easement on the adjacent property, or by moving the roadway further east.
Ms. Numanoglu noted staff had recommended two more changes in their presentation:
• Condition A(6)(d) was to require all eight lots to be sprinklered, not just Lots 2-7.
• Staff recommended adding a note to A(4)(h) that would allow the option to drain the
foundations on Lots 6 and 7 to the storm line on the lot to the north if an easement was granted
by that property owner.
Mr. Poulson amended his motion to include those two changes in conditions. Ms. Johnson
seconded the motion.
Mr. Boone asked the applicant if he had any comments in regard to the two additional conditions
recommended by staff. The applicant had none. Mr. Ahrend asked staff to revise the findings they
referenced earlier regarding landscaping and they agreed to insert that the Commissioners findings
were to override staff's findings on that issue. The vote was conducted and the motion passed
4:0. The final vote on the findings was scheduled on December 15, 2014, at 7:00 p.m.
GENERAL PLANNING AND OTHER BUSINESS
Staff and the Commissioners discussed the next agenda; that newly appointed Commissioners
would attend the next hearing; and that the City Council was going to recognize Ms. Johnson and
Mr. Creighton for their service on the DRC.
ADJOURNMENT
There being no other business Vice -Chair Ahrend adjourned the meeting at 8:55 p.m.
Respectfully submitted,
Janice Reynolds /s/
Janice Reynolds
Administrative Support
City of Lake Oswego Development Review Commission
Minutes of December 1, 2014 Page 7 of 7