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HomeMy WebLinkAboutApproved Minutes - 2000-09-18OREGON I. CALL TO ORDER CITY OF LAKE OSWEGO DEVELOPMENT REVIEW COMMISSION MINUTES September 18, 2000 Chair Douglas Cushing called the Development Review Commission meeting of September 18, 2000 to order at 7:02 PM in Room C-106 of the Commons Building of Marylhurst Conference Center at 17600 Pacific Highway, Lake Oswego, Oregon If. ROLL CALL Commission members present included Chair Cushing, Vice Chair Nan Binkley and Commissioners Julie Morales, Dave Powers, Douglas Kiersey, Sheila Ostly*, and Bruce Miller. Staff present were Hamid Pishvaie, Development Review Director; Liz Jacob, Associate Planner; Sandy Ingalls, Planning Technician; Evan Boone, Deputy City Attorney and Janice Bader, Senior Secretary. III. APPROVAL OF MINUTES Mr. Kiersey moved for approval of the Minutes of August 7, 2000. Mr. Powers seconded the motion, and it passed with Ms. Morales, Ms. Binkley, Mr. Cushing, Mr. Powers, Mr. Kiersey, Ms. Ostly and Mr. Miller voting yes. Ms. Ostly was not present. There were no votes against. IV. OTHER BUSINESS - Findings, Conclusions and Order None V. PUBLIC HEARING *Ms. Ostly joined the meeting. LU 99-0060, an application by Hallmark Inns and Resorts for approval of a major modification of an earlier Development Review Permit (DR 1-93) in order to modify condition B(2). The applicant intends to eliminate a pedesrian accessway from Hallmark City of Lake Oswego Development Review Commission Page 1 of 15 Minutes of September 18, 2000 Drive to Collins Way to construct a fence along the west property line. The site is located at: 15455 Hallmark Drive, Tax Lot 9400 of Tax Map 21E 8CB. The hearing had been continued from September 6, 2000. Staff coordinator is Hamid Pishvaie, Development Review Manager. Chair Cushing opened the public hearing and explained the procedures and time limits to be followed. He recalled the record had been held open for submission of additional written evidence. He asked the Commissioners to report any ex parte contacts, site visits, biases or conflicts of interest. Ms. Binkley reported that she was familiar with the site and had listened to the taped record of the previous hearing. Chair Cushing asked if any person in attendance desired to challenge any Commissioner's right to hear the application. No one presented such a challenge. The applicant waived their right to hold the record open for submission of a final written argument. Chair Cushing closed the public hearing and opened Deliberations. Deliberations Ms. Ostly stated that the condition had been a part of the original development review approval and it was reasonable to require a walkway through a property the size of the site. Ms. Morales stressed that connectivity between the site, the neighborhood and the park was important and she believed the walkway should remain across the site. Mr. Kiersey observed that the case had been complicated and emotional. He recalled the staff had advised that two questions needed to be answered: 1. Is the requirement for a public walkway across the property consistent with LODS 20? 2. If so, is the requirement roughly proportional to the impacts resulting from the original development? Mr. Kiersey referred to the staff report (see pages 5 — 7) and observed that LODS 20 provided for "on site circulation" via connections of bikeways, walkways and access ways with "other areas of the site" and did not include off site areas such as Waluga Park or Collins Way. He opined that "outdoor activity areas" referred to such areas that were on site. He noted that although the staff had found that a person wanting to access the site from Collins Way would need to walk 2,250 feet around the site vs. 50 feet in a direct route across the site, the neighborhood had indicated they desired to cross the site on the way to somewhere else, and not to access the site. He acknowledged that the direct route provided more convenient access to places along Boones Ferry Road than to go away from the site along Collins Way and then back toward Boones Ferry Road along Douglas Way. He recalled that he had observed a woman walking her dog through the site and along Collins Way to a vacant lot at Douglas Way, and then returning along the same route through the site. He stated that the access way was convenient for the residents, but he did not believe it was required by the ordinance that applied to the site. He referred to City of Lake Oswego Development Review Commission Page 2 of 15 Minutes of September 18, 2000 discussion of the "Impact on Public Systems" and "Large Parcel" on page 9 of the staff report where the staff found that people using the Hallmark Building contributed to pedestrian traffic on the City's sidewalk and pathway system and that the comparatively large size of the site supported the walkway requirement. He noted the site was approximately the same size as the adjacent Equity Group Building site and the site of the office building across the street. He held that the level of impact generated by customers and employees accessing the applicant's building was minimal and was not roughly proportional to requiring a public sidewalk easement across the property. He said that he would agree to approve LU 99-0060. Ms. Ostly asked for clarification of the language "on site." Mr. Boone advised that LODS 20.020(2) defined "walkway" as a surface strip of land legally accessible to the public and improved to accommodate pedestrian traffic, including persons in wheelchairs. He said walkways were "to connect at least one public entrance of each building accessible to the public to the nearest public walkway, or other walkway leading to a public walkway." He continued to read, "Walkways shall also connect to other areas of the site, such as parking lots and outdoor activity areas, to other building entrances to adjacent streets and nearby transit stops." Mr. Cushing held that connectivity was important and he believed that it had always been required. Ms. Morales recalled from the original hearings regarding the development in 1992 and 1993 that the walkway had always been an important part of the site design (to provide connectivity). Ms. Binkley observed that the Comprehensive Plan provided for connectivity. Mr. Miller commented that access to adjacent streets was extremely important. Mr. Powers observed the original approval record implied an agreement. He saw the access as a walking conduit between the neighborhood and local businesses. He opined it should remain open as a walkway and vandalism there should be addressed. He suggested its use be limited to pedestrian traffic (no skateboarding). Mr. Kiersey acknowledged the neighborhood's desire to use an access across someone else's property. He observed there were other dead end streets in the neighborhood that did not feature walkways across the adjoining properties (e.g., along Galewood Street, where the residents had been adamant that they did not want any connections with nearby commercial activity. He said that if the Commission based its decision on the staff report, they could only conclude there was not rough proportionality and no reason why the access way easement should be required of the property owner. Mr. Kiersey moved for approval of LU 99-0060. Mr. Powers seconded the motion and it failed with Mr. Cushing, Ms. Binkley, Ms. Morales, Ms. Ostly, Mr. Miller and Mr. Powers voting against and Mr. Kiersey voting for approval. Ms. Ostly moved for denial of LU 99-0060. Ms. Morales seconded the motion and it passed with Ms. Morales, Ms. Binkley, Mr. Cushing, Mr. Powers, Ms. Ostly and Mr. Miller voting yes. Mr. Kiersey voted against. Chair Cushing announced that LU 99-0060 Findings, Conclusions and Order would be voted upon at the next meeting. City of Lake Oswego Development Review Commission Page 3 of 15 Minutes of September 18, 2000 LU 00-0069, a request by Schollander Development, to modify PD 3-97 (Bergis Farm Estates Planned Development) in order to divide Lot 3 (40,931 square feet) into two parcels. Parcel 1 is proposed to be approximately 16,000 square feet in area and Parcel 2 is proposed to be approximately 24,930 square feet in area. The site is located at Bergis Farm Drive, Tax Lot(s) 300 of Tax Map 21E 1513D. Staff coordinator is Elizabeth Jacob, Associate Planner. Chair Cushing opened the public hearing and explained the procedures and time limits to be followed. He asked Commission members to report any ex parte contacts, site visits, biases or conflicts of interest. Mr. Cushing, Ms. Binkley, Mr. Miller, Mr. Powers, Ms. Morales and Ms. Ostly indicated they were familiar with the site. Mr. Kiersey reported that he had driven past the site, but had not driven down the driveway. Chair Cushing asked if any person in attendance desired to challenge any Commissioner's right to hear the application. No one presented such a challenge. Elizabeth Jacob, Associate Planner, presented the staff report. She related that the applicant desired to create two lots from Lot 3 of the 14 -lot Bergis Farm Estates Planned Development (PD) that had been approved by the City in 1997. She noted the original PD approval had anticipated that this lot would be partitioned at some future time and utility infrastructure had been installed to serve the two lots. She advised that the Commission was to review the proposal because the modification increased the density of the development, although the partitioning action would result in a density that would still be less than the maximum allowed density of 24 lots. She related that the existing house was connected to sewer and water and the proposal was for the originally approved setbacks, height and lot coverage. She said the applicant was requesting a reduction in the 80 -foot lot width requirement to approximately 70 feet. She indicated that the staff supported the request because this lot would continue to be the largest of the lots and the request would not impact any other lots, natural resources or privacy of other lots. She recommended approval of the partition subject to the conditions recommended in the staff report. Applicant Don Schollander, 3576 Lakeview Blvd., Lake Oswego, 97035, pointed out the location of the existing driveway. He explained that he had waited to partition the lot to keep a promise to the former owners that he would not partition the lot immediately after the original development approval. Opponents Al Weller, 2020 Cornell Street, Lake Oswego, 97035, testified that he owned the property to the north of the site. He said that he appreciated the fact that the applicant had not built the development to its maximum allowed density. He indicated his concern that if an old hedge and some trees between his house and the site were removed, his privacy City of Lake Oswego Development Review Commission Page 4 of 15 Minutes of September 18, 2000 would be reduced. He also wondered how high the applicant's new house would be and at what proximity to the Weller home. Ms. Jacob advised that a 15 -foot side yard setback was required along the subject lot's north property line and she recalled that the trees Mr. Weller referred to were within the setback area. Ms. Binkley advised that the applicant would be required to apply for a tree removal permit if he intended to remove trees. The Commissioners clarified that the R- 15 Zone limited the new house to a maximum height of 35 feet high and maximum lot coverage of 25%. None. None. Neither for nor Against Rebuttal Deliberation No one requested that the record be held open for submission of additional written testimony or evidence. The applicant waived his right to additional time in which to submit a final written argument. Chair Cushing closed the public hearing and opened deliberations. nolihoratinnc Ms. Morales moved for approval of LU 00-0069, subject to the conditions in the staff report. Ms. Ostly seconded the motion and it passed with Ms. Morales, Ms. Binkley, Mr. Cushing, Mr. Powers, Mr. Kiersey, Ms. Ostly and Mr. Miller voting yes. There were no votes against. LU 00-0074, an application by Lois Moore, for approval of a tree removal permit to remove two trees, a Pine and Birch, approximately 11 inches each. The trees are located near the front of the dwelling [TC 00-0328]. The site is located at: 48 Oriole Lane, Tax Lot 4600 of Tax Map 1 S 1 E32DB. The staff coordinator is Sandy Ingalls, Planning Technician. Chair Cushing opened the public hearing and explained the procedures and time limits to be followed. He asked Commission members to report any ex parte contacts, site visits, biases or conflicts of interest. Ms. Ostly, Mr. Kiersey, Mr. Cushing, Mr. Miller and Mr. Powers reported they had visited the site. Ms. Binkley and Ms. Morales reported they had not visited the site. Chair Cushing asked if any person in attendance desired to challenge any Commissioner's right to hear the application. No one presented such a challenge. City of Lake Oswego Development Review Commission Page 5 of 15 Minutes of September 18, 2000 Sandy Ingalls, Planning Technician, presented the staff report dated September 8, 2000. She introduced new Exhibits 7 and 8 (a letter from the opponents and the applicant's landscaping plan). She related that the applicant desired to remove two trees that were too close to her home, overhung her chimney, and presented a risk to her and her neighbor. She noted that the applicant's landscaping plan was for the area of the front yard only and not the area of the birch tree on the east side of the site. She explained that neighbors were opposing the application. She related that the neighbors believed that if the applicant's request was granted, many other neighbors with similar -aged trees planted close to their houses would request to remove those trees and the character of the neighborhood would be impacted. Ms. Ingalls advised that staff had found that the subject trees did not meet the hazard criteria because they were not uprooting or in immediate danger of falling. She referred to a photograph and pointed out that conifer branches that overhung the applicant's chimney could be trimmed back without changing the tree's canopy. She said birch tree branches could also be trimmed away from the home's roof. She advised that if the trees were not hazard trees, their removal required mitigation with two conifer trees at least 6 feet high or two-inch caliper deciduous trees. She refrained from making a recommendation regarding the application until all of the evidence had been heard. She also clarified that staff had no evidence that one of the trees might be diseased. She clarified for the Commissioners that the site was a small lot that sloped from rear to front. Mr. Powers recalled the site featured a terraced area behind the house and was steeply sloped between the house and the street. Mr. Ingalls also clarified that the threshold for obtaining a tree cutting permit was a diameter of five inches or greater and the subject trees were approximately 10 to 15 years old. Mr. Boone advised that there were different criteria for removal of a tree because it was a hazard or for landscaping purposes. He said an applicant was to provide an arborist's report that a hazard tree was likely to fall and create injury to persons or property and that danger could not reasonably be alleviated by treatment or pruning. He noted that the applicant had not submitted a hazard analysis, although her application indicated the she believed it was a hazard. He advised that criteria to be satisfied in the case of tree removal for landscaping purposes included the impact on erosion, and the impact on the character, aesthetics or property values of the neighborhood. He observed that a clarification should be made regarding the basis for the applicant's request during the testimony. City of Lake Oswego Development Review Commission Page 6 of 15 Minutes of September 18, 2000 Applicant Lois Moore, 48 Oriole Lane, Lake Oswego, 97035, stated that she grew up in a rural area, had a great respect for the land and vegetation and also owned and responsibly maintained 200 acres of pristine forested land in Michigan. She indicated she had approached the decision to remove trees on the site in a serious manner and with the urging of her next-door neighbor. She said she was particularly concerned about the tree that was approximately 18 inches from her fireplace chimney. She held it was her responsibility as a homeowner to take care of her home and remove a tree that could fall on either her home or her neighbor's home. She recalled that after her home had flooded the previous April she had reviewed the site with her insurance company's claims agent. He had observed that tree roots grew underneath her deck and had recommended the tree be removed in order to save her home's foundation. She distributed a copy of the agent's letter (Exhibit 10). She said one tree was a cedar deodora that was 15 inches from the house foundation and leaned over the house. She worried that if branches that overhung the chimney were removed the tree would appear topped and ugly and that action would not resolve the tree's impact on the foundation. She said wind caused tree branches to scrape against her siding and windows. She referred to photographs of the tree's large roots. She said the birch tree had a potential to grow very large but was crammed into an 8- to 9 -foot space between the houses. She opined that an existing large cherry tree in front of her house (on the neighbor's property) and a 3 -foot tall magnolia tree she had planted in recent years provided sufficient greenery in front of the house. She said the subject trees had been planted 12 to 15 years ago and had outgrown the available space. She explained she did not want to wait until she could observe foundation cracking to remove trees that common sense told here were close enough to damage her house. She stated that she had not been aware that a hazard evaluation by an arborist was required until she read the staff report. She said that she had discussed the matter with a landscaper, who had reviewed the trees and provided a written statement (Exhibit 9). Ms. Moore held the opponent's argument that if she was allowed to remove her trees others would also remove trees did not make sense (Exhibit 7). She acknowledged, however, that she believed that over the next few years more homeowners would decide to remove trees because they were outgrowing their space - not because she was granted a tree cutting permit. She read portions of the landscaper's letter, which indicated the cedar deodora could grow as large as 100 feet tall, with a 40 -foot canopy, and the trees were growing close enough to the house that they could begin to damage the house and the foundation within 1 to 6 years. He indicated the other tree, a petula pendulum, could reach 60- to 70 feet tall, and was poorly located because its strong feeder roots were growing towards the foundation of the house. Ms. Moore noted the insurance company risk manager's letter indicated the tree was leaning, had a shallow root structure that was growing into the foundation, and he believed the tree had a potential to fall in heavy weather and damage either the house or autos in the street. He also observed that branches over the chimney presented a fire hazard. He opined that if branches over the house were cut back it would eventually kill the tree and increase its potential to fall. He advised that the tree should be removed for the safety of the homeowner and surrounding City of Lake Oswego Development Review Commission Page 7 of 15 Minutes of September 18, 2000 neighbors. He wrote that if the application was denied the insurance company would hold the City liable for any damage that occurred. Ms. Moore presented a letter from neighbors at 44 Oracle Lane (Exhibit 11) and related they supported the application because the birch tree was damaging their roof and preventing them from planting other vegetation between their houses. She indicated that she had not provided a complete landscape plan because she intended to work with her neighbors to design the plan. The neighbors had written that they were concerned that the tree's root system would damage their foundation. They had also observed that trees in the neighborhood had been planted with little regard to how they would impact the houses as they grew. Ms. Moore also provided comments from seven neighbors indicating they did not object to her request (Exhibit 12). She introduced Exhibit 13, a tree -cutting permit issued on August 3, 2000, and signed by Morgan Tracy. She recalled he had called her to apologize because the permit had been mailed too early, he had indicated he had not anticipated the application would be opposed, and his staff report would support her request. She said she had never seen a copy of that report. Mr. Boone advised that the permit had been revoked at the time the staff contacted the applicant. Ms. Ingalls advised that no staff report had been prepared. Ms. Moore confirmed for Mr. Powers that she had cleaned and retreated her roof and frequently had her gutters cleaned. Mr. Cushing pointed out that the tree removal questionnaire indicated to applicants that in the case of hazard trees, a hazard evaluation form was to be completed. Carol Mitchell, 8 Pheasant Run, Lake Oswego, 97035, testified that she was a neighbor of the applicant and had resided in the neighborhood for 12 years. She opined that the original homebuilders had not anticipated how large the trees would grow. She held that removal of the subject trees would not negatively impact the neighborhood because of the presence of the cherry and magnolia trees in the front yard and the fact that the neighborhood had lots of trees. Opponents Donovan Snyder, 9 Peacock Place, Lake Oswego, 97035, testified that he and his wife did not believe the application met the requirements of the Tree Cutting Ordinance. He agreed with the staff report that the applicant was required to provide an arborist's report to show the trees were hazard trees. He recalled the staff had found no damage to the house foundation. He recalled that if the removal was for landscaping purposes, the application's impact on the neighborhood was to be considered. He acknowledged that almost every house in the neighborhood featured a tree that was very close to the house, and he worried that an approval of the application would set a precedent for other neighbors. He stated that he believed that a homeowner had every right to protect their property, but the requirements of the ordinance should be followed. He clarified for the Commissioners that his lot featured a large Japanese maple that was growing against his house, a smaller Japanese maple in the yard, and he had trimmed branches from another small tree located between his and his neighbor's houses so that it would not scratch the City of Lake Oswego Development Review Commission Page 8 of 15 Minutes of September 18, 2000 houses. He stressed that trees were important to any community and the Tree Cutting Ordinance requirements should be followed. Diane Nofs, 9 Peacock Place, Lake Oswego, 97035, stated she agreed with the staff findings. She related that she had worked together with her neighbor to prune the tree between their houses. She worried that approval of the application would set a precedent in the neighborhood because 80% — 90% of the houses in the area featured large trees close to the houses. She opined the applicant could retain the two trees and also landscape the site. She provided an article that discussed how far too much of the City of Portland's tree canopy had been removed. None. Neither for nor Against Rebuttal Ms. Moore questioned that approval of the application would set a precedent. However, she said that she was concerned that if the application were denied, her home and many other houses in her neighborhood would also be adversely impacted. She said she believed she could landscape the area of the birch tree, if it were pruned, but she did not believe it would be necessary to add additional vegetation to the area of the cedar tree in front of her house. Chair Cushing closed the public hearing. Deliberation Mr. Boone clarified for the Commissioners that the City Council had suspended mitigation for dead and hazard trees on August 1, 2000, and the application had been filed on July 14, 2000. He also clarified that the Ordinance provided that the City could require the applicant to submit an arborist's report. Mr. Powers observed that although neither tree presented a hazard at this time, of the birch tree's four main roots, one was well rotted and another was beginning to rot. He also noted the tree's trunk also showed signs of rot. He opined it would eventually become a hazard tree and should be removed. He also advised that pruning would not improve the appearance of the tree. He observed the cedar was too close to the house and in another 15 to 20 years it would grow to 40 feet wide canopy and its branches would continue to grow into the chimney and the shake siding and keep the gutters full of debris. He said maintenance would be an expensive, ongoing process. He noted the cedar tree was not aesthetically pleasing, and it was a landscaping issue. He also related that he had observed termite wings at the base of the tree. City of Lake Oswego Development Review Commission Page 9 of 15 Minutes of September 18, 2000 Ms. Ostly commented that the tree in the front of the house was a hazard because it branched over the roof. Ms. Morales commented that from an architect's viewpoint, planting a tree so close to a house was poor design. She also recalled that the Commissioners had been concerned about the lack of clarity of the Tree Cutting Ordinance. She asked what kind of mitigation tree would be more appropriate for the site. Mr. Powers observed the cedar tree was close to the foundation. He recalled that homes in the neighborhood were separated by only a small setback and some featured scotch pine trees between the houses. He advised those trees would grow to 30 feet across and 80 to 100 feet high and would eventually present a problem to the homeowners. He said more appropriate trees to plant there would include Japanese maple, dogwood, and trees that would grow to 20 to 30 feet tall and 15 to 20 feet across. He said that two tree of that size might be too much for the applicant's small lot. Mr. Boone advised the Commissioners that if they determined that mitigation was required, the applicant could work with staff to determine the species of trees and their locations. Ms. Ingalls then recommended that the trees be allowed to be removed and mitigation be required for both trees. Mr. Powers moved for approval of LU 00-0074, subject to the conditions in the staff report. Ms. Binkley seconded the motion and it passed with Ms. Morales, Ms. Binkley, Mr. Cushing, Mr. Powers, Mr. Kiersey, Ms. Ostly and Mr. Miller voting yes. There were not votes against. LU 00-0049, a request by Preferred Homes to modify LU 99-0066 (a tree removal request for 14 trees) in order to modify condition of approval A.(2), as follows: • To reduce the required tree protection zone from 10 -feet to a minimum of 5 -feet. • To remove protected tree #9, a 14" Big Leaf Maple in order to construct a new single- family dwelling. The site is located at: 15199 Lily Bay Court, Tax Lot 7100 of Tax Map 2 1 E 9BD. The staff coordinator is Sandy Ingalls, Planning Technician. Chair Cushing opened the public hearing and explained the procedures and time limits to be followed. He asked Commission members to report any ex parte contacts, site visits, biases or conflicts of interest. All Commissioners present reported they had visited the site. Chair Cushing asked if any person in attendance desired to challenge any Commissioner's right to hear the application. No one presented such a challenge. Sandy Ingalls, Planning Technician, presented the staff report dated September 7, 2000, and Staff Report Addendum dated September 14, 2000. She introduced Exhibit 15, a letter from the applicant. She explained that Exhibit 14 showed the proposed modified site plan, and Exhibit 4 was a composite of the original and modified site plans. She recalled that the Commission had previously approved removal of 9 out of 14 trees the applicant had requested to remove, and the dwelling footprint was to be modified in order City of Lake Oswego Development Review Commission Page 10 of 15 Minutes of September 18, 2000 to save the remaining trees. She noted the applicant had submitted an application to modify the condition instead of appealing the decision. He was currently requesting a modification that would allow the dwelling and driveway to be located closer to the trees (as close as 5 feet from the foundation) and to remove Tree #9. The application showed the driveway would be located within 5 feet of Trees #1 and #3. She related that a neighbor, Howard Franklin, had requested the hearing. Ms. Ingalls advised that the modification showed a slightly rotated house footprint that had also been increased in size, which brought it closer to Trees #9, #3 and #7 (Exhibit 4). She noted the plan was almost identical to the originally proposed plan in LU 99- 0066. She pointed out the applicant had submitted a new arborist's report which stated that the condition of Tree #9 had changed since the time of the original arborist's report. She recalled that the original conditions of approval had called for a 10 -foot protection zone around trees near the foundation. She stated that the staff had found no change of circumstances that would support further modification of those conditions under Tree - cutting Ordinance Type U criteria regarding development and landscaping, except that the protection zone could be reduced around Tree #1 and #2 to accommodate driveway construction. She recommended that the applicant be allowed to reduce the width of the buffer along the driveway, but required to maintain the 10 -foot protection distance from trees around the dwelling. Ms. Morales asked for the staff response to Mr. Breakiron's most recent communication (Exhibit 15). Mr. Pishvaie reported that Mr. Breakiron seemed not to have understood the intent of the conditions that had been imposed on the development. He stated that it had been clear to staff that the applicant would have to use a different house plan in order to conform to those conditions, but the applicant's current plan was not much different than his original plan. He recommended that the Commission maintain the original condition (for a 10 -foot setback) in order to protect trees at the site, with an exception for a reduced driveway setback (to 5 feet). He clarified that driveway construction should be done under the supervision of the consulting arborist who had recommended construction techniques that would protect the trees. Ms. Morales recalled the applicant had not appealed the DRC's original decision. She asked for a clarification of procedure. Mr. Boone advised that a modification of a previous condition of approval would require the applicant to show that there was an error in transposing the conditions of approval, there had been a change in circumstances since the original application, or there was new evidence available that had not been presented at the original hearing, but that could not have been presented then. City of Lake Oswego Development Review Commission Page 11 of 15 Minutes of September 18, 2000 Applicant Brad Gearhart, Preferred Homes, 1918 NW Runnymeade Court, Portland, OR, 97229, appeared on behalf of the applicant, Richard Breakiron. He explained the applicant was requesting to remove only Tree #9, and no others, and to modify one condition of approval requiring a 10 -foot setback. He recalled the City Manager had the authority to grant a Type II Tree Cutting Permit to allow construction of a home. He said the applicant was willing to minimize the footprint of the house. He related the applicant had worked with the City and the neighborhood, proposing to remove only 5 trees of the total of 22 on the site. He noted the applicant's arborist had advised that 5, 6 and 9 -foot setbacks and the use of special construction techniques were adequate to protect the trees. He recalled that the setback for Trees #1 and #2 had always been 5 feet from the access, and he concluded that the written specification of a general 10 -foot buffer area had been an oversight. He provided a photograph to show that several trees on the adjacent lot near the driveway area were healthy (Exhibit 18). He said the applicant had made an effort to save trees by rotation of the garage and relocation of the house footprint. He clarified that the applicant had reduced the size of the garage from 3 bays to 2 bays, even though that meant the house differed from other houses in the neighborhood that featured 3 bay garages. He said a 10 -foot setback would make it a challenge to plan for a 2 -bay garage. He noted that access was tight, but it meandered around trees in an aesthetically pleasing manner. He requested modification of the 10 -foot buffer zone requirement. He also provided a photograph of the 14 -inch maple tree and explained that its condition had been reevaluated (Exhibit 19). He asked for the Commissioners to clarify their position regarding modification of the structure's footprint and the City Manager's role in the application approval process. Mr. Pishvaie advised that the original application had been reviewed and conditioned by the Commission, and the City Manager did not have authority to approve alternative site plans in this case contrary to the limitations imposed by the Commission. Mr. Gearhart recalled that the condition was to move the house footprint and the he stated the applicant had moved it and had minimized it on both sides. He said the Code allowed the City to require the house to be shifted, but said nothing about minimizing the house. He said that many trees requiring the 10 -foot buffer were well within the building setbacks. He stressed the applicant desired to save all the trees except Tree #9. Walt Knapp, 7015 SW Dunsmuir, Beaverton, OR, 97007, stated that he was an arborist and had been retained by the applicant. He referred to the photograph of the maple tree and explained that he had initially not considered it a hazard tree. He explained that he had changed his conclusion based on the tree's proximity to the house and its "pinched -off' crown. He advised that he believed the City's new Tree Code should have addressed stands of trees. He surmised that this maple tree had grown within a stand of trees because of the shape of its crown. He predicted the tree would not likely develop a thicker crown and would not fare well in the long term in the setting of the site. City of Lake Oswego Development Review Commission Page 12 of 15 Minutes of September 18, 2000 He advised that the proximity of trees to the structure was a factor to be considered in choosing construction techniques. He recommended that trees be draped during construction and that the type of fill to be used be that which would help maintain tree roots. He said he would be on site during construction to ensure that the trees were protected. He clarified for Ms. Morales that the appropriate size of a tree protection buffer was a factor of the species and size of the tree. He also explained the affect of impact on 12 -inch trees: Impact on three sides was very detrimental, impact on two sides was not lethal, and impact on one side was much less lethal and would not tend to result in loss in vigor. He said he was more concerned about wind throw that impact to one side of the trees on the site. He stressed that that it was important to maintain a substantial portion of a tree's roots and that addition of topsoil on three sides of the tree could be detrimental to the tree and increase the probability of wind throw. He said the fact that a tree was within a stand of trees would help to protect the tree from wind throw. He advised the Commissioners that grade beam construction of the house foundation would span over the soil and tree roots and put less impact on the roots. He also clarified that 18 -inch deep footings would not intrude into the root zone. Mr. Gearhart referred to page 6 of the staff report that stated that the staff found that the dwelling had been moved closer to Trees #3, 7, 9 and 11. He clarified that the garage had actually been moved away (to 9 feet) from Tree #3 ( which had originally been proposed to be removed to accommodate a driveway). He recalled that the City Manager had approved removal of Tree #11 to accommodate access. He said the applicant currently intended to save Trees #1 and #2 by the use of special construction techniques. He also clarified that no foundation was to be constructed within 3 feet of trees, the minimum distance was 5 feet (near Tree #7); Tree #3 was within 9 feet; and the foundation had been jogged to distance it 10 feet from Tree #15. He said the applicant did not anticipate impact on trees from the span -type foundation. He explained he believed that the condition that Trees #1 and #2 (along the driveway) were to be protected by a 10 -foot buffer was an oversight, and the 10 -foot buffer was to be along the structure's foundation. He clarified that Tree #3 was 10 feet from the foundation now that the footprint had been rotated. Opponents Howard Franklin, 15203 Lily Bay Court, Lake Oswego, 97034, testified he resided next to the site and he was primarily concerned about safety. He urged the City to maintain the 10 -foot setback to preserve tree roots, which he understood were not buried very deeply in the soil. City of Lake Oswego Development Review Commission Page 13 of 15 Minutes of September 18, 2000 None. Neither for nor Against Rebuttal Mr. Knapp advised that the type of soil affected the direction and depth of tree roots and Douglas fir roots were typically deeper than the roots of other species of trees. He acknowledged that he was not aware of what type of soil was at the site. He predicted the majority of anchor roots were to be found within six to eight feet from the tree trunk. He clarified that he had factored root protection into his recommendations. Mr. Gearhart asked if a 10 foot buffer area was standard for tree protection. Mr. Cushing recalled that had been the staff recommendation and the size of area the Commission had previously approved. Staff confirmed for Mr. Gearhart that the "footprint" of the house meant the foundation. ilPlihnra+inn Mr. Boone suggested that the Commission clarify what criteria should be applied to determine the procedure for hearing modifications of previously approved conditions of approval. Ms. Binkley opined that the applicant's problems stemmed from the fact that the house was poorly sited. She recalled the Commissioners had placed the original conditions on the development in order to encourage the applicant to redesign the footprint/house plan; however, she observed that the proposed modification was not significantly different from the originally proposed footprint. Mr. Powers observed the applicant's modified plan did not reflect the type of changes the Commission had envisioned, and he was not in favor of the applicant's request. Mr. Cushing opined the conditions of approval clearly stated that there was to be a 10 -foot tree protection area. Ms. Ostly observed the footprint had changed very little from the original proposal. Ms. Ostly moved for partial approval of LU 00-0049 regarding Trees 1 and 2, subject to the conditions in the staff report. Ms. Morales seconded the motion and it passed with Ms. Morales, Ms. Binkley, Mr. Cushing, Mr. Powers, Mr. Kiersey, Ms. Ostly and Mr. Miller voting yes. There were no votes against. Chair Cushing announced the vote on LU 00-0049 Findings, Conclusions and Order was to be October 2, 2000. VI. GENERAL PLANNING None. VII. ADJOURNMENT City of Lake Oswego Development Review Commission Page 14 of 15 Minutes of September 18, 2000 There being no further business before the Development Review Commission, Chair Cushing adjourned the meeting at 9:40 PM. Respectfully submitted. Janice Bader Senior Secretary 1: \dre\minutes\09-18-00. doc City of Lake Oswego Development Review Commission Page 15 of 15 Minutes of September 18, 2000