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HomeMy WebLinkAboutApproved Minutes - 2014-05-19 ed vivo P9 IL_ h ", CITY OF LAKE OSWEGO 14.E ;' Development Review Commission Minutes ',. irsav Monday, May 19, 2014 Chair Needham called the meeting to order at 7:00 p.m. in the Council Chambers of City Hall, 380 A Avenue. Members present: Chair Bob Needham, Brent Ahrend, Ann Johnson, Kelly Melendez and David Poulson. Frank Rossi and Vice Chair Creighton were not present. Staff: Hamid Pishvaie, Assistant Planning Director; Johanna Hastay, Associate Planner; Leslie Hamilton, Senior Planner; David Powell, City Attorney; and Janice Reynolds, Administrative Support MINUTES Ms. Johnson moved to approve the Minutes of October 7, 2014. Mr. Ahrend seconded the motion and it passed 4:0:1. Ms. Melendez abstained. Ms. Johnson moved to approve the Minutes of October 21, 2013. Mr. Poulson seconded the motion and it passed 3:0:2. Mr. Ahrend and Ms. Melendez abstained FINDINGS None. PUBLIC HEARINGS LU 13-0064: Request by Westland Homes for approval of the following: • Resource Conservation (RC) and Resource Protection (RP) District delineations; • RC Protection Area determination; • An 18-lot residential planned development; and, • Removal of 65 trees for associated site improvements and grading activities. Location of Property: 13413 Fosberg Road, (Tax Lot 500 of Tax Map 21E 06BD.). Chair Needham opened the hearing. Mr. Powell outlined the applicable procedure and criteria. Each Commissioner declared her/his business/employment. Ms. Johnson and Mr. Ahrend each reported a site visit. No one present challenged any Commissioner's right to hear the application. Staff Report Ms. Hastay pointed out the pattern of development in the neighborhood, the slopes, RC and RP Districts and proposed Resource Conservation Protection Area (RCPA). She advised that the applicant had met the criteria for an RCPA. They had set aside slightly more than the required 50% of the delineated RC District in an RCPA. In addition to the RCPA, they proposed conservation easements on Lots 8 and 9. Staff compared R-5 zoning standards with the proposed Planned Development (PD) Preliminary Plat, highlighting that Minimum Density was 30 lots, but the applicant proposed 18 lots. The Code allowed them not to transfer 12 lots out of the Sensitive Lands and steeply sloped areas. The applicant was using the PD process to distribute the allowable lot coverage and floor area over the entire site and to get exceptions to front and rear setbacks. She pointed out lots on which front and City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 1 of 13 rear yard exceptions were requested (table on page 12 of the staff report). She pointed out the proposed new internal street and how each lot was proposed to be accessed. A public comment had been submitted asking that Lot 16 be accessed from the internal street instead of Rogers Road. The City Engineer had found that Rogers Road had the capacity to handle access by Lots 16, 17 and 18 and there were no sight distance issues. That the applicant proposed to meander the Fosberg sidewalk to preserve a grove of mature Douglas firs addressed concern about those trees expressed in a letter from Pamela Freeman. The sidewalk was considered an unavoidable crossing of RCPA and it had to be mitigated for. Staff found the application could meet PD standards with the recommended conditions of approval. Those included certain revised setbacks (Recommended Setbacks table on page 17 of the staff report). The intent of the revised setbacks was to adjust lot widths so the proposed utility easement could be widened to 30-feet; ensure that Lots 8 and 9 had sufficient yard so the adjacent RCPA was not violated; set the garage on Lot 9 further back so there was a place to park cars off the street; add the notch shown on the tree preservation plan to the setback on Lot 13 to protect a large Oregon White Oak; and make the front yards of Lots 16 and 17 consistent with other front yards. Staff found the application offered the same sense of privacy and scale as a standard subdivision would. The proposal set aside 36% of the site as dedicated and reserved land and that more than met the minimum 20% open space requirement. It preserved the natural resources on the site to the greatest extent possible, as the internal street and sidewalks meandered to preserve trees; the two groves of mature Douglas firs were protected; and resources were linked to each other and to offsite resources. The proposed density allowed the applicant to maintain the minimum lot size and cluster development away from steep slopes. Staff found that overall the proposed PD allowed for greater flexibility of development than a standard subdivision would and it incorporated a creative approach to conserve natural land features as much as possible. Staff recommended other revisions to the plan in regard to landscaping and mitigation. Those included planting 20 additional mitigation trees and some shrubs and ground cover in the open space tract behind Lots 2-5; modifying the plan so there was proper mitigation where the applicant proposed a sidewalk crossing and drainage facilities in the RCPA; addressing some bare open space behind Lot 12; grouping and spreading out mitigation trees; and ensuring the street frontages had street trees. In the event a Sensitive Lands violation early in the development process was upheld by the courts, staff recommended modifying the mitigation plan by moving some of the mitigation planting to the west side of the RCPA and requiring shrubs to be planted there. Staff recommended approval subject to the conditions in the staff report. They found the proposed density was appropriate for the site and the development pattern of the neighborhood. The applicant had made a concerted effort to balance protection of natural resources within and outside of the resource districts while meeting all of the required development standards. The proposed PD met the applicable criteria and allowed for a creative design. Sensitive Lands and development standards were met. Type II tree removal criteria (with the condition calling for an additional 20 mitigation trees) were met. Questions of Staff Ms. Hastay confirmed that the applicant would have the option of accessing Lot 16 from either Rogers Road or the internal street when the house was built. They would be able to change the size of the conceptual building footprints during the building permitting process because the currently-proposed lot coverage was under maximum allowable lot coverage. She confirmed that the meandering sidewalk around a tight cluster of Douglas fir trees at the southeast corner saved those trees and the sidewalk connected to improvements on Fosberg Road. She explained the Sensitive Lands violation was that the applicant had illegally mowed in the RP District and City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 2 of 13 damaged two trees during surveying. Mitigation for that was planting two trees and shrubs in the RCPA. She explained staff did not ask for ground cover because the applicant would have to dig too many small holes; the shrubs were more likely to survive; and the shrubs should help block out invasive species. She clarified that the site plan had changed significantly since the geotechnical tests and report in November 2013. The applicant had reduced the extent of grading, fill and retaining walls because they were now planning homes on sloped lots. They reduced the number of lots on the east side from 7 to 5. She confirmed no updated geotechnical report had been provided and that the Commission could impose a condition to provide one. Applicant Michael Carbone and Matt Lewis, Cardno, 5415 SW Westgate Drive, Ste. 100, Portland, Oregon (97221); and Ralph Tahran, Tahran Architecture & Planning, LLC, 2333 SW Stephenson St., Portland, Oregon (97219) spoke for the applicant. Mr. Carbone related the applicant had revised their initial plan for a 20-lot subdivision in response to comments at the neighborhood meeting in regard to traffic, the sizes and sales prices of the new homes, and natural resources. Reducing the number of lots along Fosberg reduced the extent of retaining walls and grading. They had revised the design to accommodate the Douglas fir trees on Lot 18 and the Oregon White Oak on Lot 13. They had always proposed to jog the sidewalk at the southeast corner to preserve trees there. He advised that because of the constraints of slopes and protected resources and because no existing street stubbed to the site almost all of the access had to come from Fosberg and Rogers Roads. The applicant had worked with staff to configure the RCPA. They were respecting the delineated RP and RC District areas and the RCPA and related construction setbacks. They had laid out the site to address solar design requirements. They were providing 1.64 acres of open space (34% of the site), which was more than required. They proposed to protect large trees in the southeast corner and the northwest corner, including Douglas firs and an Oregon White Oak. They had laid out the RCPA by focusing it on the west side of the stream corridor where the vast majority of the Western red cedars were located. The RCPA boundary made sense in terms of existing vegetation on the site as well as the existing vegetation on neighboring sites and it served to buffer adjacent development. Mr. Carbone asked for the changes the applicant proposed in Exhibit F-22 which was the staff- recommended conditions of approval as edited by the applicant. Condition A(13) Regarding the landscape plan: Conditions 13(a) Landscape Mitigation and 13(b) "Site Development" Mitigation The applicant would strike A(13)(a)(i) calling for 20 additional mitigation trees in the re-graded portion of open space Tract A behind Lots 2-5. They argued that they were already designating 14% more of the site for open space than they were required to; the vast majority of the site was encumbered with natural resources; they would mitigate their impacts; that area was not identified as a natural resource area; and if it was planted with trees it would make it less possible for residents to use it for activities like playing ball. They would modify A(13)(a)(iv) so it specified the spacing of RP District boundary markers as '20 feet on center.' There would be two or three markers per lot and they would be visible. Conditions related to fencing: A(7)(e) and D(11) The applicant noted the recommended conditions limited the type of rear property line fencing on certain lots along the open space tract to split-rail fencing. The applicant would strike those because some residents might not want a back yard fence; all adjacent property owners had fences; the required split-rail fence would not protect the resource any better; Lots 2-5 did not even directly abut the resource area; and the required plaques would mark the edge of the resource area. Conditions A(14) and A(16) related to 3-year mitigation maintenance and monitoring plans. City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 3 of 13 The applicant asked the Commission to strike the language calling for them to ensure there were less than 10% invasive species. They argued the site was currently 80%-85% invasives; it was very difficult to remove English ivy and maintain it at the 10%% level; they were already required to ensure mitigation plants were established at an 80% level; and they would provide monitoring plans showing how they would keep invasives away from the plants they planted. Condition A(15)e) Temporary irrigation for plant establishment during the 3-year monitoring period. The applicant asked the Commission to remove this condition, explaining that they preferred to have the flexibility to use a watering truck; they were planting native species that could be watered in at the beginning of the season, then when necessary until established; many would be under the cover of a mature tree canopy; the City already required them to have a monitoring plan and ensure 80% were established after three years; and temporary irrigation was very expensive and not necessary. Condition A(7). Regarding development restrictions. In regard to A(7)(b), specifying the required size of conifer mitigation trees as 10 feet, the applicant would change it to 6 to 8 feet high. The shorter trees would be easier to move and install; the trees would establish better; and they would grow to 10 feet in two or three years. The applicant had introduced new language into A(7)(f), Private Open Space Tract A regarding using this tract for active recreational use. Recommended Setbacks table. The applicant proposed to change some of the staff recommended setbacks (Exhibit F-22, pages 2 and 3). The change on Lot 1 was the result of rounding down instead of up. The adjustments to Lots 3 and 4 would help them achieve the wider utility easement the City Engineer had recommended. Setbacks on Lots 8 and 9 would be reduced to the code standard of 5 feet. The applicant commented that staff proposed larger setbacks there to address potential future violation by residents, but that was not the right way to do it, especially on property already constrained by steep slopes, trees and the riparian corridor. It limited the buildable area and the kind of house they could construct there. Those at the neighborhood meeting had indicated they wanted homes that were consistent with their existing homes and property values. Mr. Tahran presented the Preliminary Site Plan (Exhibit E-17). He indicated the proposed cluster development on Fosberg Road respected all of the setbacks of the adjoining neighbors. The applicant had not asked for any setback exceptions there. He discussed how designing a home on Lots 8, 9 and 18 would be challenging because of very restricted building area given the setbacks, setback planes and height limitation that controlled the building mass. He clarified that the Site Plan accurately showed the tree survey he had received, but it did not show the many mitigation trees and some of the street trees. He explained the applicant proposed to access Lot 16 off of Rogers Road because the internal street access would likely be too close to the intersection; to do so compromised the livable area; and the City Engineer agreed that Rogers Road could handle the additional trips. He explained the `courtyard'-type access concept and side loading garages on Fosberg avoided more grading and allowed them to put the houses closer to the road and use the slope to advantage. They proposed to adjust the widths of Lots 3 and 4 because it would fit better than adjusting Lots 4 and 5. He indicated what they proposed would create a more attractive Fosberg streetscape than having slender lots with a house sitting in a hole. Questions of applicant Mr. Poulson asked the applicant to discuss grading and storm drainage and the stability of the steep slope if there was a filled area on it. The applicant's representatives explained the changes they had made to the site plan allowed them to significantly reduce retaining walls and grading. The area with the greatest amount of fill was the southeast portion. Most of the grading was on the City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 4 of 13 east side. The proposed boulder wall would be six feet at maximum height. Mr. Poulson asked about the geotechnical expert's recommendation; noted the report had been done prior to significant changes to the site plan; noted they only had two test pits; and observed that they did not have much information in regard to the weight of the fill resting on top of the basalt rock. Mr. Lewis indicated the geotechnical expert had participated in the conversation since the geotechnical report. They had reviewed his recommendation to key in the slope; discussed aspects of the grading plan with him; and he had provided a supplemental memorandum. He suggested the Commission could add a condition to provide a supplemental memorandum to specifically address issues the Commission was concerned about. Mr. Lewis explained they had used a drainage engineer who was more familiar with a type of modeling Mr. Poulson asked about than he was. He clarified for Mr. Poulson that although the proposed development would only contribute 3 cubic feet per second of runoff they were designing to handle much larger flow storm events because the Code required them to. Mr. Poulson questioned why the homeowners association should have to take on the responsibility and cost of underground detention when they contributed so little runoff. He indicated he had some issues with the storm water report that he would talk about later. In regard to the split-rail style fencing requirement the applicant clarified for Ms. Melendez that they were asking for flexibility for residents to be able to choose to have no fence or some other style fence. Ms. Melendez noted the wording did not require them to put up a fence. Ms. Hastay explained the intent was that if a fence was installed it had to be a split-rail fence. That would keep the open space area connected to the residents' lots and ensure they knew it was there. She noted the open space had been proposed as an amenity to the site and the applicant was asking for exceptions to standards because of it. Staff Response to Applicant's proposed changes to conditions of approval Ms. Hastay responded to each of the applicant's proposed changes to the conditions of approval in Exhibit F-22, as follow: Recommended Setbacks table. • Lot 1. Staff supports the proposed rounding down change. • Lots 3 and 4. Staff supports the proposed changes because they facilitated widening the utility easement to 30 feet as the City Engineer recommended. Mr. Lewis confirmed to Mr. Poulson that the applicant could accept a condition to center the storm pipe within the easement. • Lots 8 and 9. Ms. Hastay explained the staff's rationale for the setbacks they recommended. The Code required 5-foot side and 20-foot rear setbacks. The RCPA and the RCPA construction setback either came up to the property line or extended over it on these lots. Where the RCPA came 5 feet over a property line and the construction setback was another 5 feet beyond that staff recommended a total setback of 15 feet. That left 5 feet beyond the RCPA and construction setbacks for useable, active, outdoor yard (perhaps for a patio) because what they were allowed to do in the construction setback was limited. As the applicant had indicated, the homes on these lots might not be suitable for families that needed a lot of outdoor space, but others might prefer them. She noted the colored Site Plan the applicant had brought to the hearing reflected the staff-recommended setbacks. Because of that staff was reluctant to support the applicant's changes except perhaps they could work with the applicant on the 15-foot east side setback and perhaps go down to 10 feet there to ensure the building envelope was more flexible. Mr. Carbone clarified the colored site plan did show that setback as 10 feet. Ms. Hastay pointed out staff's analysis in regard to setback recommendations was in the staff report. In regard to Lots 8 and 9 it indicated that staff would be willing to consider going down to 5 feet on the City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 5 of 13 east side yard because there was room there beyond the RCPA. But where the applicant proposed a 5-foot rear setback would overlap the construction setback that projected into that area. A 15-foot rear setback would allow a little bit of active outdoor space and ensured there was sufficient setback there. • Lots 13 and 18. Staff supports the changes the applicant proposed because they shifted the building area on Lot 18 back from a grove of trees and smoothed out a notch on Lot 13. Ms. Hastay advised that in recommending setbacks staff had to consider the possibility that there would be violations of Sensitive Lands resources; and, that part of the PD exceptions process was making sure natural resources were protected in a way that there would reduce the potential for future violations. Commissioners and staff discussed that if the rear setback of Lot 9 was reduced to 5 feet it would overlap the RCPA construction setback and would limit the resident's use of that area, including a patio, barbeque or hot tub. Comments included that purchasers would know what they were getting; it might work for some people; and future residents might try to put an amenity there anyway. Commissioners, staff and the applicant considered where the protective setbacks came over the property lines or did not and the possibility of a useable garage. Staff was willing to consider reducing the setback where there was enough room beyond the RCPA and conservation easement. Staff agreed with Mr. Ahrend that it would make sense to vary the west setback on Lot 9 between 5 and 10 feet, depending on whether and where the construction setback projected over the property line. Ms. Hastay summarized that in regard to Lot 9 they had compromised on 5 feet (rear yard) and the setback would vary from 5 to 10 feet on the west side, depending on amount of projection over the property line of the construction setback. The applicant indicated they could agree to that. In regard to Lot 8 where the protective setbacks projected over the lot lines staff held to their recommended 15 foot east side and 10 foot rear setbacks in order to maintain 5 feet between the limited use area and the building envelope that people could use and in order to minimize intrusions into the RCPA. Ms. Hastay indicated she could support an 18-foot front yard setback so the building could be shifted forward a little. Ms. Melendez commented that the rear and side limits seemed pretty tight and 18 feet would help. Condition A(7) regarding development restrictions/Condition A(13) on landscape mitigation/plans Ms. Hastay agreed to the applicant's change of mitigation conifer tree size to '6-8 feet' [A(7)(b]. She left it to the Commission to decide whether to impose the split-rail fence requirement along the private open space tract. She advised the Code required special markers to define the RP District boundary. In regard to restrictions on use of Private Open Space Tract A [(A(7)(f)] Ms. Hastay clarified that no active recreational use was allowed in an open space tract when it had native vegetation in it. Mr. Carbone explained the applicant wanted an open space area that could be actively used by residents. If they could not use part of Tract A for that because it was protecting Goal 5 resources, he discussed creating an open space Tract B that would not be protecting Goal 5 resources. Ms. Hastay clarified the applicant was allowed PD exceptions because they proposed extra open space beyond the minimum requirement and beyond protecting Sensitive Lands. She advised that related mitigation requirements in A(13)(a)(i) did not mean the applicant had to plant a forest there. The required mitigation trees would help the open space blend nicely into the protected resources area and help stabilize the slope. The planting could be clustered somewhat to create a meadow- like area that residents could picnic in. It was important to have some additional mitigation trees here because the entire east side of the site was being re-graded and none could be planted there. Mr. Pishvaie clarified that staff was focused on maintaining and restricting removal of native vegetation in both the RC/RP Districts and the non-RC/RP District areas of open space. He City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 6 of 13 advised that active use could occur in non-RC/RP portion of the open space tract. He supposed the applicant could place a swing set there if they wanted. He advised it was a typical condition that no buildings or structures were allowed in the open space tract. A swing set was not considered a `structure.' He cautioned that the sentence Mr. Carbone proposed to add to the end of A(7)(f) ['Those portions of Tract A that are not located within the RCPA and RP District may be used by the residents as permitted through City Code.'] might be more restrictive than he intended. Mr. Pishvaie clarified that the purpose of open space was not just to protect Goal 5 resources. The required open space natural area could be a meadow. Condition A(7)(f) could be revised to keep the words 'and active' added by the applicant and remove the words 'the RCPA and RP portions of' and indicate that active use was okay in non-RC/RP areas. The applicant noted they were not grading into all of that area, and much of it would retain its native slope and contours. They asked if they could reseed the area with lawn. Ms. Hastay indicated staff wanted to keep Condition A(13)(a)(i) calling for adding 20 mitigation trees, shrubs and appropriate ground cover (which could be seeding). The shrubs could be clustered to allow some areas to be more grassy than treed. The required spacing was per typical spacing guidelines. The applicant asked staff to cite the Code that allowed them to impose such additional conditions. Ms. Hastay advised that the City had fairly broad conditioning authority in regard to Type II tree removal mitigation in order to ensure minimization of impacts from removal: LOC 55.02.094, Conditions of Approval for Tree Cutting Permits, the City may impose conditions of approval on any tree removal permit if the condition is reasonable related to preventing, eliminating or mitigating a negative impact or potential impact on natural features or processes or on the built environment of the neighborhood which is as created or contributed to by the approved tree removal. Mr. Poulson recalled the applicant held they had already proposed mitigation and this was additional mitigation. He asked why. Ms. Hastay advised it was to offset an impact. They were removing 65 trees for site development and slightly more than half of them were from the east side. Their mitigation planting plan mitigated for those trees. It created a nice amenity for the protected riparian area of the stream corridor, but left another area partly re-graded and without trees (page 43 of the staff report). The City had the conditioning authority to require more than the required 1:1 tree mitigation in order to address negative impacts. She indicated the planting plan could be further refined to spread the mitigation trees out and into certain areas, such as the slope behind Lots 4 and 5, and so they were not planted where a construction setback overlapped the rear yard setback on the lots with already constrained yards. She reasoned that they could be more spread out because the guidelines called for 12-foot spacing and some of them were at 10 feet. She said staff recommended planting native species. Mr. Carbone clarified the applicant wanted to modify the conditions so the homeowners association could decide how to use the open space tract, as long as the use was consistent with the Code. He noted the lots that would access it directly and that anyone could access it via the trail system on Rogers Road and the underground detention maintenance loop corridor. He indicated he thought the applicant was amenable to spacing trees out. They proposed to limit it to Tract A because they did not want to have to plant them in yards, but they could put some of them in the RP/RC construction setback and other places, including closer to the resource northeast of the stream corridor and at the upper northeast corner. They did not propose to plant any below top of bank because it was steep, but in that area there were some grade breaks. The reason they clustered the trees was because clustering trees on the northern portion of the site, which was currently open, with ivy and blackberries, provided shade coverage and protected that resource. In regard to the cost, it was expensive to have to plant and maintain 20 more trees for three years "just because." They had already demonstrated they were good stewards of the land by identifying all the resources and avoiding a lot of them. They were just asking for reasonable conditions of approval. City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 7 of 13 Mr. Poulson indicated he would leave the spacing determination to staff because of their expertise. Ms. Hastay noted the applicant had asked to completely remove Condition 13(a)(i) and staff was recommending keeping it. She clarified that most of the mitigation trees to be planted in the RC District because of invasive tree removal were going to be saplings because saplings had a better chance of survival. There would be an occasional 6-8' conifer tree and an occasional 2" caliper deciduous tree. It would take some time before it looked like solid coverage. Staff was not recommending shrubs there. They did want shrubs and ground cover planted in the open space tract in order to extend the look of the RCPA up into the regarded, steep, portion of the site. Mr. Poulson suggested taking a qualitative approach and seeing if some of the mitigation trees could be relocated to other areas instead of specifying 20 additional trees. Staff clarified the applicant had asked for a number so they could estimate the cost of planting additional mitigation trees. Because they had spaced mitigation trees 10' and 12' apart they could spread some out from the protected riparian area, but not to the extent that they moved away from the recommended spacing guidelines. That was why staff recommended additional mitigation trees. She confirmed for Mr. Carbone that the additional trees were to be 2" caliper or 6'-8' foot conifers. Mr. Poulson indicated that the applicant had met the Code's mitigation and mitigation spacing requirements, and unless staff agreed to work with the applicant on a compromise, he leaned toward agreeing with the applicant to remove the condition calling for 20 more mitigation trees, because he could not find that was required by Code. Ms. Hastay advised the City had Code authority to impose additional conditions of approval to offset the negative impact caused by tree removal. If there were other ways to do that staff would be willing to consider them. Increasing the mitigation ratio was a direct and very quantitative and clear way to offset negative impacts form removing all of the trees on the east side of the site. In regard to Condition (A)(13)(a), Ms. Hastay agreed to change A(13)(a)(iv) to specify `spaced 20 feet on center'; and add `within Tract A', with the clarification that they did not want to impact the restricted rear yards of Lots 1, 10 and 11. Mr. Carbone suggested if the Commissioners were comfortable removing A(13)(a)(i) calling for 20 additional trees then they could revise A(13)(b) "Site Development" Mitigation, to allow for or require some of those mitigation trees within the open space area. Chair Needham responded that he did not recall any discussion about that. Ms. Hastay said staff would like to see the trees that were there stay there except for small readjustments. Ms. Hastay advised the currently proposed language in A(13)(b)(ii), repeated in A(15)(e), was a standard condition of approval to require temporary irrigation. It would help the plants survive because of the level of invasive species in the area and it would reduce replanting costs. Staff wanted to keep that language, but if the Commission wanted an option the Natural Resources Planner offered the following optional language: `Include provisions for watering the mitigation plantings as needed for plant establishment during the 3-year monitoring period.' Regarding the requirement to keep invasive species to 10% of less [Conditions A(14) and A(16)] Ms. Hastay related she had discussed with the applicant what 'less than 10% cover of invasive species' meant. It applied to the mitigation planting area, not the entire RP District or RCPA, after the applicant cleared out invasive species. This was to ensure the area remained clear of invasive species during the 3-year period. Staff would add language to clarify it meant `within 3-feet of plantings'. Public Testimony None. Deliberations City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 8 of 13 The applicant waived their rights to keep the record open and to keep it open to allow time to submit a final written argument. Chair Needham opened deliberations. The Commissioners discussed the proposed changes to conditions. In regard to the applicant's proposed changes to staff recommended setbacks, Mr. Poulson indicated he agreed with all of them. He noted they were shifting the setbacks on Lots 3 and 4 so the utility easement could be wider. He suggested a new condition calling for the applicant to center the storm water pipe in the utility easement, new Condition A(11)(k). Chair Needham indicated he did not agree with the applicant's change of side setback on Lot 8, but he was okay with reducing the front yard setback from 20 to 18 feet. He and Mr. Poulson recalled that staff was willing to reduce the east setback on Lot 9 to 5 feet from the conservation easement and vary the rear yard between 5 and 10 feet. Chair Needham and at least two other Commissioners voiced agreement with the change on Lot 13. Chair Needham indicated he agreed with the proposed change on Lot 18 and Mr. Ahrend commented that was in tandem with Lot 13. Ms. Hastay indicated she agreed that the changed wording the applicant proposed for a Condition 7 bullet [`Lot 9 shall also include the RP District and 10-foot construction setback on the east lot line.'] because if offered a better description. Chair Needham indicated he agreed with changing Condition 7(b) to specify 6-8' conifer tree height. In regard to the split-rail fencing requirement in Condition A(7)(e) and also D(11), Chair Needham indicated he would not strike it because it would change the context of the resource to have big fences; a fence was not needed for privacy in the back yard; and he liked the idea of a split rail fence. Ms. Melendez commented that at least the height of fences could be limited so there would not be 6-foot high fences there. Mr. Ahrend and Mr. Poulson wondered if this would apply if the residents put the fence two feet back off the property line. Ms. Johnson observed the lots were so small that most did not have much of a back yard to begin with so they might not want to cordon off part of it. Mr. Poulson suggested they might want a fence for privacy or security or to confine their pet. Chair Needham did not see a need for privacy as they were next to open space. Mr. Ahrend noted the back yard of Lot 9 was in view from the side of Lot 8. Chair Needham suggested they could use an invisible fence instead of putting up a physical fence. Mr. Poulson would not want a child to wander off into the creek because there was no fence. Mr. Ahrend indicated he was inclined to delete this as the applicant requested. Ms. Melendez would delete it too because she did not want to limit the fence type or dictate fence height, materials or how permeable it was. Mr. Poulson recalled the intent was to delineate the edge of the resource area. When asked what the Code called for in regard to residential fences staff advised they were limited to six feet and had to be good neighbor fences. The Commissioners observed that could mean cinder block. Staff said retaining walls plus fence could be up to 8 feet high. She clarified this condition was not just to delineate the resource, but to have openness between the back yards and the open space. Mr. Ahrend indicated he was not inclined to impose this on the property owners. He anticipated some would not pay any attention to it and would put up a fence anyway. They would have to tear it down if someone complained. Mr. Poulson agreed. He indicated he liked the idea of keeping openness but if the residents had the ability to put a fence there anyway that defeated the intent. Ms. Melendez and Chair Needham anticipated that the homeowners association could adopt CC&Rs that limited fence height or put additional conditions on them. Chair Needham noted he was the only Commissioner in favor of keeping this requirement. In regard to Condition A(7)(f), Private Open Space Tract A, Ms. Melendez recalled they had discussed keeping 'and active' and removing `within the RCPA and RP area.' Mr. Poulson recalled the last sentence [added by the applicant] was unnecessary. Ms. Melendez recalled they had discussed the language 'no buildings or structures shall be allowed in the RCPA and RP portions of Tract A.' But once one was in the other green areas structures were allowed. Mr. Ahrend asked if they needed to add language allowing a swing set. Chair Needham suggested they did not need City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 9 of 13 to do that because if people wanted to do something there they could contact the City to see what the Code allowed. Mr. Pishvaie suggested modifying the language to say 'No buildings or structures (excluding play equipment, such as swing sets) shall be allowed in Tract A.'That made it clear to future homeowners that they could put active use play equipment like swing sets in the open space tract, outside of the resource area. Ms. Melendez suggested just saying 'No buildings shall be allowed in Tract A.' Ms. Hastay advised a building was a `structure.' Ms. Melendez then suggested keep it and strike 'or structures.' Mr. Ahrend did not agree. He preferred 'No building or structure shall be allowed in Tract A with the exception of play equipment.' Ms. Melendez and Chair Needham noted the area was really steep and hard to get to. Chair Needham indicated he would go with Mr. Pishvaie's suggestion. Mr. Ahrend suggested they also strike out the last sentence the applicant proposed to add. The Commissioners discussed Condition A(13)(a)(i), which called for additional 20 additional mitigation trees. Chair Needham would keep this condition. Mr. Ahrend would strike it as the applicant proposed. Ms. Melendez wondered if this was all engineered fill should they be planting on it. Mr. Poulson indicated he wanted to hear from the geotechnical expert. He noted they had only two test pits and the report seemed to indicate they had refusal at basalt at about 7 feet. He advised that a steep slope on top of rock that could be slick when water got down there could mean that a small earthquake might send one of the homes sliding down the hill a couple of feet. Chair Needham noted that the dirt could damage the riparian habitat as well. Mr. Poulson said he wanted to have the geotechnical report updated to be consistent with the latest plan. Chair Needham observed it would be the applicant on the hook for liability. Mr. Ahrend noted that removing the condition did not prohibit the applicant from adding trees - it just did not require it. Chair Needham commented that he was on the other side of that issue. Ms. Melendez indicated she believed staff was trying to create gradation between the heavily treed area against the creek and the bare hill — a gradual change with spots of trees as one moved away. She was curious whether the requirement was also applied in order to help hold the hillside together. Mr. Poulson indicated it would; however, there were other ways to stabilize engineered fill using industry practices. He indicated that he agreed with Mr. Ahrend to strike it because he could not imagine the applicant would leave it as bare slope. They would landscape it and put their own trees on it to make it nice landscaping. Ms. Melendez noted the area was not on individual lots so it would be the homeowners association doing that. Ms. Johnson indicated she would keep this condition. Ms. Melendez indicated she would agree to do that because there should be more gradation instead of a harsh cutoff. Chair Needham commented that if one just counted trees the result would not necessarily be what they wanted. They could just put 10 trees anywhere they wanted to. But it needed to be a viable resource. He recalled a past development application the Commission had approved where they lost a resource because it was not reflected on the mitigation plan. In this case they had an opportunity to provide mitigation that made sense. Ms. Melendez observed that three Commissioners were in favor of keeping it. She asked what their thoughts were; where did the number 20 come from; and would 65 be fine if the trees were distributed differently. This was very specific in quantity and location. What if the applicant spread out the 65 mitigation trees in a different pattern? Chair Needham indicated he looked to staff for a recommendation unless an expert was there to persuade him. Ms. Melendez commented that typically 1:1 was the requirement, but there could be reasons why it might not work out. Chair Needham looked for whether the general consensus was to leave it in. Ms. Melendez said to leave it in unless there was an option of further discussion between the applicant and staff to mitigate it any other way. Ms. Hastay suggested they could deliberate on the quantity as well. Ms. Melendez indicated it could be 20, 30 or 10 — it was a matter of distribution. If the applicant had spaced them at 10' to 12' they had done more or less what was required. If they were meeting the code requirement how could the Commission expand on that? Chair Needham recalled that staff had explained that the Code granted broad authority to accomplish the goal of mitigation of the impact on the resource. It City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 10 of 13 might not just be about the number of trees to be planted. Mr. Poulson commented that the City had the leeway and the applicant wanted flexibility do to what they wanted with their property. Chair Needham indicated he did not agree. Mr. Poulson noted the applicant had met the Code requirement. Chair Needham noted they had only met the part that required 1:1 tree mitigation and the City had broader ability to address the impact owners; the Chair then asked if they could achieve compromise. Ms. Melendez indicated she would go with the staff recommended condition rather than trying to construct language that offered more leeway and arguing about what number of trees it should be. Mr. Poulson and Chair Needham recalled the parties had gotten together before the application came to the Commission. Ms. Johnson suggested they could have either/or language: either redistributing some of the 65 trees into another area, or planting an additional 20 trees. Mr. Poulson recalled that they had already looked at that and the spacing was already correct. Ms. Johnson then indicated she would keep the current condition. Mr. Ahrend then acknowledged that they would keep it and move on, adding that he did not know what the compromise would be. Later in deliberations, Mr. Pishvaie asked the Commission to clarify what they decided in regard to Condition A(13)(a)(i) - Landscape Mitigation provision. Chair Needham recalled they said keep what staff recommended. Mr. Ahrend said unless [staff] came up with something different they would stay with it. Chair Needham asked and received vocal confirmation they were okay with the change to '20 feet on center' in A(13)(a)(iv) and the proposed change [adding 'with Tract A'] to A(13)(a)(v). In regard to A(13)(b)(ii) calling for temporary irrigation, Mr. Ahrend suggested to give the applicant the option to choose to do that or water as needed. Ms. Johnson and Ms. Melendez voiced agreement. Mr. Poulson advised a temporary irrigation system would mean the plants had a better chance of survival. Just watering every few months did not work out too well. Mr. Ahrend said the bottom line was the applicant had to ensure the plants survived over the 3-year period. Mr. Poulson then indicated he was not going to press his position on this. The Commissioners agreed to change the temporary irrigation provision in Condition A(15)(e) to be consistent with what they agreed to for Condition A(13)(b)(ii). In regard to Conditions 14 and 16 calling for the applicant to ensure less than 10% cover of invasive species, Chair Needham recalled staff was willing to work with the applicant on this. Ms. Hastay clarified that Condition 14 related to "Site Development" maintenance and monitoring in the red areas - not so much in the southeast corner- but they were going to be grubbing out that whole area doing hole excavations so staff wanted to keep this condition. However, staff would clarify that the same language in Condition 16 - Sensitive Lands violations applied only where new species were planted so it would be 3 feet on center from new plants. Chair Needham, Ms. Johnson and Ms. Melendez voiced agreement. When he asked, the Commissioners confirmed for Mr. Powell that they had not made any modifications to the conditions of approval beyond what was presented by staff. Chair Needham invited discussion about the development in general. He said he thought it was a great project and he was happy it preserved the resource. Sometimes PDs did not protect the resource as well. This project was well designed and within the allowed Code. It seemed to him there were larger properties to the north and south, but the rest of the neighborhood was smaller lots. He did not find that objectionable. This one was so site specific it required specific, careful, discussions of issues. He had no other major concerns other than the ones he had already identified. Ms. Melendez agreed the applicant had done a wonderful job of protecting a great resource - other than the driveway off Rogers on Lot 16 which was really unfortunate. But she understood how that lot would not function well if it was in the back. She was concerned about the possibility of someone driving around the corner and smashing into the backside of a car backing out of there. She indicated she understood there would not be any through pathways and that was unfortunate. City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 11 of 13 Chair Needham noted it was the end of the road. Mr. Ahrend said there was nothing to connect to. The applicant advised there was a pathway that looped around on top of the detention system that provided access to the overlook and where the plantings were. When asked, he clarified it would be fairly difficult to walk along the creek as it was steep, but a person could walk down the entrance road off of Rogers to where the detention area was, which would have healthy native landscaping, and where there was a loop to access the vault underground. It was open area because they could not plant trees on it so it would provide a view down the corridor in both directions. Chair Needham commented it was good habitat for wildlife. Mr. Poulson commented that the plan was completely different now than it had been when the geotechnical professional had done the analysis. He advised about inconsistencies in the storm drainage analysis; that he did not favor the presumptive approach they used; and that the detention was really not needed and a waste of money because of the relatively small amount of flow the development was adding to the creek. When asked if he would propose a condition of approval he explained this was really an engineering issue subject to review by the City Engineer; it was a site-specific situation; and there was not much they could do about it per the Code. He questioned why the homeowners association should take on the maintenance cost and responsibility for big, underground, detention ponds. Mr. Poulson observed that trees were precluded from being in the detention area, creating a big open space in an area otherwise consistently mitigated with trees. Mr. Powell related that the City Council was going to look at onsite treatment of storm water. Ms. Melendez referred to the issue of 20 additional mitigation trees and related that she would go with the staff recommendation. Ms. Hastay confirmed for Chair Needham that in regard to Lot 9 she had noted they would have an east side yard setback of 5 feet and the rear yard setback would vary between 5 and 10 feet (5 on the left side and 10 on the right, where the RCPA was). Ms. Hastay asked if the Commission wanted to add a condition of approval to provide an updated geotechnical report. Mr. Poulson hoped that would be part of the motion. Mr. Ahrend asked if it was something staff could require if they felt it was necessary during plans review. Ms. Hastay said no because the application met the hillside protection standard with the existing geotechnical report. The Commission had previously added new Condition A(11)(k) calling for the applicant to center the pipe in the utility easement. Mr. Poulson, Chair Needham and Ms. Hastay suggested the wording for new Condition A(11)(I): The Geotechnical report is to be amended to reflect the revised site plan as submitted by the applicant in Exhibit E-5.' Chair Needham noted they were leaving it in staff's hands to review and confer with the City Engineer so it would be a requirement to provide it to staff. Applicant Comments in Regard to Potential New Conditions of Approval Mr. Lewis said he did not think they had an issue with providing a supplemental memorandum to complement the original geotechnical report. Mr. Ahrend moved to approve LU 13-0064 with the changes to the conditions that they discussed in depth during deliberations, which would include Condition A(11)(I) regarding supplemental geotechnical information. Ms. Johnson seconded the motion and it passed 5:0. The final vote on the findings conclusions and order was scheduled on June 2, 2014. LU 12-0059: Appeal of a staff decision to approve a request by Teri Caprio and Monica Thomas for a 3-parcel minor land partition, including one flag lot, and the removal of nine trees. Location of Property: 5570 Neff Park Lane, (Tax Lot 600 of Tax Map 21E 18BA.). Ross Day, Day Law Group, 15155 SW Sequoia Pkwv, Ste. 170, Portland, Oregon (97224) conveyed the applicant's request for a continuance and stated they would waive the 120-day deadline. Mike Connors, Hathaway, Koback, Connors LLP, 520 Yamhill, Ste. 235, Portland, City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 12 of 13 Oregon (97204) indicated that the neighbors, Russ Littlefield, and Dana Wendell, supported the request for continuance. Their May 15, 2014 letter outlined the terms of a settlement they had reached with the applicant. Both parties' representatives explained they needed more time to understand and evaluate the questions/concerns staff raised in the findings. Mr. Ahrend moved to continue LU 13-0064 to June 2, 2014. Ms. Melendez seconded the motion and it passed 5:0. LU 14-0006: Request by West Coast Self Storage for approval of a Conditional Use Permit and a Development Review Permit to construct a 3-story self-storage facility, and the removal of 28 trees to accommodate the development. Location of Property: 5650 Rosewood Street, (Tax Lot 400 of Tax Map 21E 18 BD). Ms. Hamilton reported the applicant asked for the hearing to be continued. Ms. Johnson moved to continue LU 14-0006 to June 2, 2014. Mr. Ahrend seconded the motion and it passed 5:0. GENERAL PLANNING AND OTHER BUSINESS None. ADJOURNMENT There being no other business Chair Poulson adjourned the meeting at approximately 10:00 p.m. Respectfully submitted, Janice Reynolds /s/ Janice Reynolds Administrative Support City of Lake Oswego Development Review Commission Minutes of Monday, May 19, 2014 Page 13 of 13