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HomeMy WebLinkAboutApproved Minutes - 2008-10-13OREGON L CALL TO ORDER City of Lake Oswego Development Review Commission Minutes October 13, 2008 Chair Bill Tierney called the Development Review Commission meeting of October 13, 2008, to order at approximately 7:00 p.m. in the Santiam Room at West End Building, Lake Oswego, Oregon. H. ROLL CALL Commissioners present: Chair Bill Tierney, Alby Heredia, Bob Needham, Don Richards, Frank Rossi and Krytsyna Stadnik. Staff present: Debra Andreades, Senior Planner; Evan Boone, Deputy City Attorney; and Janice Reynolds, Administrative Support. III. MINUTES (None) IV. APPROVAL OF FINDINGS, CONCLUSIONS AND ORDER (None) V. PUBLIC HEARING AP 08-02 [TC 08-0349, an appeal of the Community Development Director's denial of the request by Jeff Parker to remove five trees to construct a driveway across the front of the property. Location of property: 1500 North Shore Road (Tax Lot of Tax Map 21E 09AA 02000). The hearing had been continued from October 29, 2008. Evan Boone, Deputy City Attorney, recalled that Terry Flanagan, the applicant's representative at the previous hearing, had withdrawn four trees from consideration at the end of that hearing. That left Tree #14 as the only tree in contention. He noted the four withdrawn trees were where the applicant had originally wanted a turnaround from an east garage and Tree # 14 was near the west garage. When he asked for a continuance, Mr. Flanagan had explained that the applicant planned to investigate whether he could install a driveway without impacting that tree. Mr. Boone reported that the applicant subsequently advised the staff that the driveway could be slightly relocated to avoid the tree, and the staff had agreed to related modifications of the tree protection plan and driveway location. Mr. Boone reported that the applicant then asked for a turnaround at the east driveway. He said the applicant and the staff worked out an alternative plan to have a turnaround to go right, missing two trees. That was to be verified by a certified arborist's examination and report. Mr. Flanagan was to do the analysis and submit his report to the City Arborist City of Lake Oswego Development Review Commission Page 1 of 6 Minutes of October 13, 2008 to review. Mr. Boone said the staff had believed the current hearing would focus solely on the request to remove Tree #14. Mr. Boone reported that just before the current hearing the applicant explained he could not withdraw the tree removal application until an issue was resolved regarding whether or not a stairway on the west side of the property was allowed. The applicant had assumed that was part of the current agreement with staff, but the staff person he dealt with was on vacation and the remaining staff was not prepared to approve it. Mr. Boone clarified that the stairway issue was not an issue for the DRC and the staff did not understand how it related to the tree removal request. He said the staff could approve the plan for driveways if it did not result in any tree removals. He advised that the applicant could argue for removal of Tree #14, ask for a continuance, or withdraw the appeal. He said if the applicant had found he had to impact the other four trees to install the turnaround and wanted to resurrect the request to remove them, he would have to modify the application because he had withdrawn them at the previous hearing. He said in that case the DRC could decide if they would allow the modification and continue the hearing (allowing time for public notice), or they could decide the applicant should file a new application. In either case the recommended hearing date was November 17, 2008. During the questioning period, Mr. Boone clarified that, procedurally, the four trees had been withdrawn from consideration at the previous hearing. He suggested the Commissioners listen to what the applicant had to say at the current hearing about how he wanted to proceed. Chair Tierney then opened the public hearing and explained the applicable procedure and time limits. He asked the Commissioners to report any ex parte contact (including site visits), bias and conflict of interest. Mr. Heredia reported he had made a site visit. Chair Tierney reported that Mr. Flanagan was a friend and mayoral campaign contributor, but they had never discussed the application. He said he had attended a Country Club/North Shore Neighborhood Association meeting with other candidates for city office, but did not discuss applications the DRC might hear. Mr. Richards reported that the applicant's arborist was a colleague, but they had never discussed the application. Commissioners declared their business or occupation as follows: Heredia (real estate broker); Needham (retired lawyer); Richards (arborist and landscape architect); Rossi (architectural drafter and designer); and Stadnik (civil engineer). No one present challenged any Commissioner's right to hear the application. Chair Tierney clarified that the DRC was only hearing the appeal regarding trees and was not involved in the other issues related to the project. He recalled the applicant had reduced the request to only removal of Tree #14 at the previous hearing before the DRC continued it to the current date. Applicant Matt Levin, the applicant's attorney, said the applicant intended to save all the trees and had asked to continue the previous hearing in order to fashion an alternative driveway plan that did that. But he was not certain he could save Tree #14. He said it was not his City of Lake Oswego Development Review Commission Page 2 of 6 Minutes of October 13, 2008 understanding that the applicant had withdrawn the other trees from consideration and he believed the hearing was still to appeal the decision to deny removal of five trees. Chair Tierney specified the applicant's representative at the previous hearing had withdrawn the appeal related to four trees and the current hearing was only to consider the appeal of one tree. Mr. Levin assured the Commissioners that the applicant was close to being able to save all the trees, and Mr. Flanagan, the applicant's arborist, would submit a report the next day that concluded that was possible. However, he said the applicant wanted to keep removal of trees "on the table" in case he could not save some. Mr. Levin related that other conditions of approval could be satisfied, but the proposed staircase had been part of the driveway plan and that issue needed to be resolved. He asked that the hearing be continued to November 17, 2008, to allow the parties to work out the details and determine for certain if they could save all the trees. When asked if the continued hearing would only be about Tree #14, he said the applicant might modify the appeal to relate to more trees. Chair Tierney recalled the applicant's representative at the previous hearing had assured the DRC the interim was sufficient time to finalize the applicant's request. He noted that the Commissioners had agreed to hear the matter on a special meeting date only to hear the applicant was not ready. Mr. Levin explained that at that time the applicant had not been aware that the staff would not approve the east driveway plan even after they modified it to save four trees. Chair Tierney asked if the applicant would be harmed if he withdrew and filed a new application for a permit to remove one tree. Mr. Levin answered the applicant would be delayed in moving in, and the staff might determine re- application was legally foreclosed because the first application had been denied and the applicant did not appeal it in time. Mr. Boone observed that if the applicant withdrew the appeal the staff decision to deny would stand; then his new application would have to go through the regular application process again, which offered opportunity for another appeal. When asked, Mr. Levin clarified none of the five trees had been cut, the applicant had a plan that would not require cutting of any trees that was almost ready. Mr. Levin clarified that he had been involved in the application process for six months, even if he had not been at the previous hearing. He explained Mr. Flanagan had examined the site and raised unexpected issues that required the applicant to make more changes, and the plan had not fallen into place as the applicant expected. He said the applicant also had not expected to have to address the issue of the east side of the driveway. Ms. Stadnik stressed that the applicant had removed four trees from the scope of the decision at the last hearing so the DRC only had to consider the request to remove Tree # 14. She said that might have been why most Commissioners agreed to the continuance. She said she believed the applicant should submit a new application. Mr. Richards agreed and recalled the Commissioners had specifically asked Mr. Flanagan if continuing the hearing would give him adequate time to resolve everything that needed to be resolved. Mr. Levin explained that Mr. Flanagan had planned to find an alternative to cutting five trees, but he had not heard that the request to remove five trees was to be taken "off the table." After the last hearing new issues arose, such as the issue of the design of the east side of the driveway, even though the applicant had submitted the driveway plan to the city long before the hearing. Mr. Levin requested that the DRC allow the applicant to City of Lake Oswego Development Review Commission Page 3 of 6 Minutes of October 13, 2008 modify the appeal to an appeal of the denial of a permit to cut five trees and continue the hearing to November 17th to give the applicant time to finalize the plan with the staff. Chair Tierney then explained the applicable procedure and time limits and invited public testimony related to the applicant's request to modify the appeal back to an appeal of the denial of a permit to remove five trees and continue the hearing. Public Testimony Sherry Tuppan, 680 Iron Mountain Blvd., a director of the Forest Hills Easement Association, held that the fact there was a standing decision that had been made by the staff in November 2007 to deny removal of the five trees [TC 07-1150] foreclosed the applicant's right to reapply. She said opponents had already made their case; there was no new evidence to be considered; and the DRC should deny the appeal. The only thing new was that a different review authority was hearing the request. She referred to the record and said the applicant and opponents had previously presented their positions about the trees on the site during Community Forestry Commission hearings and as part of the broader development application, when the applicant asked to remove 16 trees, and all of them were denied, including the five trees currently being considered. She held the applicant should not be allowed to continue to return with the same request to remove the same five trees so he could have a garage and guest parking on the other side of his property and a driveway to connect to it. She said procedurally the case was a "mess," and there were notice issues and lots of confusion about whether the hearing involved one or five trees. She held it was clearly about one tree at the current hearing, because the applicant had withdrawn four trees at the previous hearing. She noted the applicant had a chance to appeal the November, 2007, denial in a timely manner but had not, so that denial stood. She said it was a waste of everyone's time to allow the applicant to reapply unless the substantive and material facts changed. Mr. Boone advised the appeal hearing was a de novo hearing, and until the applicant presented his case he would not know if the applicant would submit new evidence. He said the applicant might have a good argument that he could re -file because six months had gone by. He acknowledged that the doctrine of issue conclusion was an applicant could not reargue a case based on the same evidence he used before it was decided the first time. But he said he did not yet know what the applicant would argue. Ms. Tuppan observed that all the evidence in the current application was the same evidence he presented in November, 2007. However, Mr. Boone observed that the applicant might offer an alternate site plan when he testified. Chair Tierney wondered if the staff had made any determination about whether there was new evidence. Mr. Boone explained the applicant had a right to appeal a staff decision to the DRC and the staff could not determine if the applicant had submitted new evidence or if reapplication was foreclosed until the applicant testified at the current hearing. He said there was no "finality" to the matter because the code said that after six months of no action on a permit, the applicant could re -file for a tree -cutting permit. He agreed, however, that the code was silent regarding whether the applicant could re -file after a denial. Mr. Needham asked if there was any newly discovered evidence since last year. Mr. Boone advised the applicant could still offer new evidence. City of Lake Oswego Development Review Commission Page 4 of 6 Minutes of October 13, 2008 Shelley Lorenzen, Vice Chair of the Country Club/North Shore Neighborhood Association, addressed procedure. She recalled the applicant had been making tree removal requests since his initial application in 2002 to develop a 14,000 sq. ft. house on a relatively small, heavily treed, parcel. She said he had filed and withdrawn many more applications than those documented in the appeal decision, and the ultimate decision had been the Community Forestry Commission (CFC) decision to allow him to cut 14 of 17 trees he asked to cut and to deny removal and require preservation of the three trees in front of the second garage he wanted to build. She held the applicant could find alternative site plans that would not require those trees to be removed, and that might mean eliminating the second garage. She said after the CFC decision the applicant did not modify his site plan at all (except to eliminate one driveway and call one garage "storage space"); was granted a building permit; and built both garages. He withdrew his permit application to take trees down and then he cut a significant root of the large Douglas fir tree in front of the second garage. The city then agreed it was dead, fined him, and asked him to take it down. Then the applicant submitted a tree removal application that re -characterized a Madrone, which was over 10 inches and required a permit. He reported it was less than 10 inches and was granted a permit to cut it down. She stressed that the subject tree was the last of the three trees the CFC had required him to preserve. Ms. Lorenzen explained that opponents had tried to work with the process in good faith over the years with the understanding that the 14 trees the CFC permitted him to remove would be the last. But, in fact, she said, the applicant had now taken down 25 of the 50 trees originally on the site. Some of them were removed without permits because they were under code size and a permit was not required; and he took down two code -sized trees each year, which he was permitted to do. She suggested the applicant's abusive strategy was to "wear out" the staff and the opponents. She contended the staff had the authority to say the current application could not go forward because there was no new, substantive, material information in the current application and it would reopen a settle ruling of law. She said the same request had been denied before and the applicant had not appealed the decision timely. She advised the DRC to remand it to the staff or hear and decide the appeal of denial of Tree #14 that night. When Mr. Needham asked, Mr. Boone clarified that the applicant was allowed to appeal a staff denial and in that appeal he could introduce new evidence. He said the staff had looked at the prior decision and the facts of the current application — including the changed number of trees — and had not denied it just because it had been filed before. He said in an appeal the DRC was not bound to any part of the prior decision and they could consider the entire case as if it were a new application. Chair Tierney and Ms. Stadnik observed the applicant wanted another continuance so he could add information about new aspects, such as a retaining wall, and to change the appeal back to the original appeal over five trees. Ms. Stadnik suggested the Commissioners should vote on whether he could add trees. Ms. Andreas advised the code allowed an alternative site plan that would save trees and that was what the staff was looking for from the applicant. They had thought he would introduce one at the current hearing, but if he did not, that could be a reason for denying the appeal. She suggested allowing him to testify and alleviate the confusion. City of Lake Oswego Development Review Commission Page 5 of 6 Minutes of October 13, 2008 Mr. Levin agreed the issue was whether there were alternative plans to use to avoid cutting trees. He said the applicant was working on them and was close to completing them and hoped to be able to provide them at the continued hearing. He said if the DRC wanted more time for more public notice the applicant would be happy to that. Evie Fuson, member of the Forest Hills Easement Association, said everyone had been clear the DRC would hear the applicant's appeal regarding one tree that evening. She said to let him change his mind about that and present more alternatives was a waste of everyone's time, because he had already built,. his house. She asked the DRC to dismiss the appeal. Chair Tierney explained there was a process to carry out before the appeal could be denied. An audience member asked the DRC to remand the case to the staff and ask them to determine if there was any new, materially different evidence that warranted a new look by the DRC. Some Commissioners reasoned that the staff had already made that decision because they forwarded it to the DRC. Chair Tierney recalled at the last hearing he had suggested the applicant should "start at the beginning" and file an application to remove 14 trees instead of modifying the appeal. He noted that although Mr. Levin had suggested earlier in the hearing that the applicant would be harmed by delay because he wanted to move into his house, later in the hearing Mr. Levin had offered to wait additional time for additional public notice. Mr. Needham recalled other hearings in which the DRC allowed an applicant more time to prepare a new plan or revise a plan after the applicant heard what the Commissioners wanted to see. Chair Tierney recalled cases where the staff and the Commissioners had decided that some changes were so significant that the application had to be re -submitted as a new application. Mr. Richards recalled the majority of the Commissioners had voted at the last hearing to continue it after the applicant assured them the interim was plenty of time to do all the work necessary and submit it to the staff for their analysis, but that had not happened. Mr. Richards moved to den the he applicant's request to re-modiftie appeal back to five trees. Ms. Stadnik seconded the motion and it passed 5:0. Mr. Needham abstained. Before the Commissioners could vote on whether to continue the hearing, Mr. Levine withdrew the appeal in its entirety. VI. GENERAL PLANNING & OTHER BUSINESS (None) VII. ADJOURNMENT There being not further business Chair Tierney adjourned the meeting at 8:45 p. m. Respectfully submitted, !Janice Reynolds Administrative Support III L\dre\minutes\October 13, 2008.doe City of Lake Oswego Development Review Commission Page 6 of 6 Minutes of October 13, 2008