Loading...
HomeMy WebLinkAboutApproved Minutes - 2020-08-03 PMCity of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 1 of 11 14 CITY OF LAKE OSWEGO Development Review Commission Minutes August 3, 2020 The Commissioners convened at 7:00 PM online, via “Zoom.” Chair Shearer requested that all persons mute their microphone when not speaking and turn off their camera when walking away. Members present: Chair Jeff Shearer, Craig Berardi, Kirk Smith, Jason Frankel, Mark Silen, and Randy Arthur Members absent: Vice Chair David Poulson Staff present: Scot Siegel, Planning and Building Services Director; Jessica Morey- Collins, Associate Planner; Ellen Davis, Associate Planner; Evan Boone, Deputy City Attorney; Leah Wells-Swanson, Administrative Support and Kat Kluge, Administrative Support REPORT ON COUNCIL ACTIVITIES Chair Shearer read Councilor Kohlhoff’s memo regarding the following recent City Council activities: there were two meetings with the DEI Task Force last month and the focus for the "Reach Out To Participants” format has been approved; City Council is in recess for August; and the mid-term budget meeting will be held in September. MINUTES June 15, 2020: no corrections were suggested. July 6, 2020: Commissioner Arthur suggested the following correc tion: on page 4 of 10, in the 3rd paragraph under "Deliberations,” the word should be "complementary." Commissioner Arthur moved to approve both sets of Minutes. Seconded by Commissioner Frankel and passed 6:0. PUBLIC HEARING AP 20-01 [TR 499-19-05510], a request for a Type II permit to remove two trees to construct a new single-family house and detached garage. This site is located at 381 9th Street (21E03CD07501). The Staff Coordinator is Jessica Morey - Collins, Associate Planner. Mr. Boone gave an overview of the public hearing process. Mr. Boone asked DRC members to declare any ex parte contacts (including site visits), biases, or financial conflicts of interest and their business/employment. All DRC members declared they City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 2 of 11 14 have no ex parte contacts, conflicts of interests, and no biases, other than the noted following. Chair Shearer made a site visit. Commissioner Arthur stated that the Roderick Family LLC was adverse to one of his company’s clients in a case closed in 2019, but he did not work on that matter and knows nothing about it. Commissioner Berardi has driven by the site multiple times . There were no challenges to the Commissioners’ rights to consider the application. Staff Report Ms. Morey-Collins presented the staff report. The trees are located at the rear of the lot . The lot is currently vacant and is zoned R-7.5. It is proposed for development of a new zero -lot-line single-family residence. The abutting properties are also developed with single -family residential dwellings. The site slopes down slightly, from 200-feet at the NE corner, to 196-feet at the SW corner. This site contains no water courses. The applicant provided a site plan, which includes the proposed development in relation to the root protection zone of the trees. The trees are requested for removal for the purpose of development of a new single-family dwelling, a detached garage and guest house, driveway, and required on-site stormwater system. These uses are all permitted outright in the R-7.5 zone. The trees proposed for removal are located within 6 .5 feet (Tree 10300) and 2.5 feet (Tree 10304) of the proposed garage/guest room (Exhibit E -003). Tree 10300 is in the driveway of the structure. The trees are within the proposed development impact area. The trees are large, healthy, mature Douglas firs, and are found to be significant to the neighborhood character and aesthetics, based on their size, distinctive character, and being the only remaining trees on site. The trees are co-dominant in crown-class (if one tree is removed, the other must also be removed or be destabilized based on the removal). Based on the significance of the trees, they may only be approved for removal if one of the exceptions in LOC 55.02.080.3 is met. The trees are visible from A Avenue and 9th Street. A larger Douglas fir is to remain on the adjacent site. Staff found that the Applicant did not meet the burden of proof in showing that the trees would not have a significant negative impact on the neighborhood character and aesthetics, so they then looked at the other exceptions to the "significance" criteria. Staff finds that Exception B (alternatives to the tree removal have been considered, and no reasonable alternative exists to allow the property to be used as permitt ed in the zone) has been met on the following basis: the minimum front yard setback is 25 feet from the front property line and the proposed structure is located 29 feet from the front property line (if moved four feet to meet the setback, the root protection zone would not be improved enough to save Tree 10304); the structure is a zero-lot- line dwelling (attached to the dwelling of the abutting property to the north, so the structure can only shift east or west); the rear yard setback on the east is 30 feet from the rear property line for the dwelling and 15 feet for the garage/guest room; the dwelling is proposed to be 40 feet from the rear property line and the detached garage is proposed to be 15 feet from the rear property line; too much of the root protection zone for Tree 10304 will be impacted by construction to preserve the tree, and there is not sufficient space within the setbacks to shift the development enough to save the tree. As a co-dominant tree, Tree 10300 must also be removed, or it would be destabilized. The root zone of Tree 10300 will also be substantially impacted by construction. In conclusion, no placement of the zero-lot-line dwelling will reduce the impact on the trees. On this basis, staff recommends approval of this application with the condition s: 1) Identify the location, size, and species of three mitigation trees, which shall be a native species selected from LOC Appendix 55.02-1, Native Mitigation Tree List. The trees shall be a minimum of 1.5 caliper inch for deciduous or six feet tall for evergreen at the time of planting. 2) Pay into the tree fund in the amount of $143 .00 in lieu of planting one additional tree on site. 3) Plant the three City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 3 of 11 14 approved mitigation trees p rior to final building inspection of the new dwelling. Questions of Staff Commissioner Smith noticed that the garage could not be moved due to the north setback line. He asked for an explanation of why the garage could not also have a zero-lot-line. Ellen Davis, Associate Planner, replied that garages do not have the same exception as a dwelling sharing a common wall on a property line. The setback requirement is at least five feet from the north property line. Commissioner Smith asked about the living space in the garage. Ms. Davis stated that the Applicant had not requested a permit for an accessory dwelling unit (ADU), as it would be a garage with some habitable space above it. Scot Siegel, Planning and Building Services Director, added that there was no provision for zero-lot-line detached accessory structures; however, if the garage was attached to the dwelling the zero lot line criteria would apply. Commissioner Arthur asked for confirmation that staff found no reasonable alternative to the loss of these two trees, including moving the garage. Ms. Morey-Collins affirmed. Applicant Testimony Dan Goodrich, Architect for the project , stated that he had no objections to the findings. They did not want to incorporate situations which would require requesting variances for approval. If the garage were to be pushed to the north, it would still be too close to the trees in question. Questions of Applicant Commissioner Frankel asked if there would still be danger to the root systems regardless of the setbacks if the garage were to be moved to the north. Mr. Goodrich affirmed. Public Testimony Mr. Boone recapped the time limits for each person testifying. In Opposition Darryl Boom, stated that he supported the Evergreen Neighborhood Association (ENA) position. He stated that he would hate to see those trees chopped out of their neighborhood. To save the trees, they can attach the garage. Diana Boom, stated that she supported the appeal; asking the Applicant to consider modifying the project to include, rather than, cutting down these trees. She felt that the ENA would work enthusiastically with the developer on a variance to save these trees, as the structures could be moved to the north if the developer also owns that adjacent property. Cindy Knowles, also hoped the Applicant would work to modify the structures as presented. She would like to add her voice to the growing number of citizens in Lake Oswego, who are distressed that the hundreds of massive high -canopy, old-growth trees (i.e., the Douglas firs being discussed tonight) that are being cleared of properties at an alarming rate. The two trees being discussed tonight meet all the criteria environmentally and aesthetically. They contribute to the wonderful view and ambiance when driving, biking, and walking around town. There are many reasons to preserve these trees. She requested that the Development Review Commission (DRC) draw a line in the sand and say "no." There is recognition that they need to come up with a preservation plan that takes stock of the big, mighty trees that they have left, and determine which can be kept and which can be let go. They are looking for leaders who will City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 4 of 11 14 bring Lake Oswego back to the forefront of cities that recognize the quality of the arboreal environment. This unique asset cannot be replaced. Rebecca Provorse, would like to address the issue of alternatives. She stated that she moved to the Portland metro area in 1994, and then to Lake Oswego two years ago because of the small town feel and its wooded beauty. In the past 24 months, she has witnessed hundreds of trees being removed, and this is unprecedented. The woods at Kruse way and at Boones Ferry, to make way for Springs Retirement Center and the improvements to Boones Ferry, are now gone, along with one to three trees, at a time, from many separate properties over the last many years. Between January and April of this year, the City approved the removal of over 100 trees on Type 2 Removal applications. She stated that she was heartbroken, when she drove to the store and seeing these large open areas. It will not take long for Lake Oswego to become like Tualatin or Beaverton, at this rate. Remediation trees take at least 50 years to get to the size of the trees that are being removed. She agreed that the removal of these trees would negatively impact the character and aesthetic of the neighborhood. There are a dozen trees on this property that will be removed, not requiring a permit. Jessica Carnevale, stated that she supported the ENA and the local Tree Committee. She did not hear alternatives to the footprint of the building. The trees are the heritage of the city and are what make it special. Visitors come here because of the environment. She would like to lend her voice in support of preserving the trees. Mike Pridemore, Chairman of the Tree Committee, looked at this property and found many options. They could build two smaller units, which would change the lot line. He also visited two other properties this week, which have applications for significant tree removals. He suggested that they move away from property taxes and more towards preservation of the oxygen levels and the ambiance of the city. Alan Arora, informed members that he lives in the Bryant neighborhood and is testifying because of a similar experience he has had to endure, in a lot adjacent to his. Removal of the trees will have a significant negative impact on the character and aesthetic of the neighborhood. He sees no details as to what alternatives were considered, as it seems that all alternatives were viewed in the light of not changing the design. He believes that the burden of proof is placed on the Applicant, rather than the City staff . Assuming that the only design alternative was removing the trees, kind of makes a mockery of the tree removal permitting process. He would encourage the City to require an alternative design that would save the trees, and to demonstrate that the economic impact to that redesign is so devastating that it is not viable (confirmed by a qualified individual). Gary Granger, representative of the Evergreen Neighborhood Association , noted that there would be a significant negative impact to the neighborhood, but also, an incorrect conclusion that no reasonable alternative exists. He has photos that he would like to share with members. Mr. Boone requested that Mr. Granger submit print copies of the photos following the hearing. One photo shown demonstrates that structures can be built near existing trees, as he has seen in other structures in the neighborhood. There are exceptions that can be requested; however, the Applicant indicated that they did not wish to do so (e.g., making the garage attached and moving further away from the trees). He then pointed to the off-site tree; opining that it would be negatively impacted by the removal of these co-dominant trees, as it is approximately 30 feet from these trees, and the root system and the crown are co-mingled with these trees. This decision is irrevocable; whereas a decision not to allow a building to be built in a particular way is changeable. There are clearly many options that have not been explored . He believes that the City has done the work for the Applicant, where they have the burden of proving that there is no City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 5 of 11 14 reasonable alternative. There are other homes in the neighborhood that have been safely constructed near these trees, and all appear stable. Mr. Boone asked Mr. Granger if he felt that this decision adversely affects him, independent of the NA, and whether he had been paid by the NA as the ir consultant. Mr. Granger replied that he is adversely affected, but that he had not been paid. Mr. Boone inquired the nature of how he is affected by this decision. Mr. Granger stated that he moved to Lake Oswego because of the nature of the neighborhood, and the extensive large tree canopy here, and the removal of these two trees continues a trend, with literally hundreds of trees gone. This would be in the general effect of the tree removals. Mr. Boone informed Chair Shearer that this qualifies Mr. Granger in having an independent interest, from the NA, to speak, and his time would not be counted in the NA. Speaking on his own behalf, Mr. Granger spoke to two broader issues. The first is an inappropriate interpretation of the code : as exemplified in this application, in that the purpose statement of the code, to protect trees, is not regulatory,. He opined that this subverts the entire purpose of having a tree protection code . He tied this back to the hard work that the City staff performs, and taking on the burden of proof for the Applicant, in determining on their own, without any evidence from the Applicant, that there is no reasonable alternative to removal, as an example of not using the tree code to protect trees. If they use the code to protect the trees, then they would follow the code precisely. If an interpretation needs to be made, the guiding principle in the code is the guiding principle in the interpretation . Finally, he pointed to residents suffering a "Tragedy of the Commons," wh erein each person gets to exercise their own self - interest, independent of anyone else's interest. When done with common resources, such as trees, the result is the entire Community suffering. He hoped that they could do something about this. Betsy Wosko, asked members to consider the Comprehensive Plan (CP) when reviewing this application. The City's plan is called "Healthy Ecosystems" (enacted in January of 2016, with Ordinance 2687). This absolutely sings the praises of healthy, mature trees. While this plan may not be criteria, it should be the lens with which the development code and the tree code are interpreted. It may not be ignored. ORS 197.175-2(b) requires cities to enact land use regulations to implement their CP provisions. CP policy may be mandatory considerations, such that a local government is obligated to adopt findings addressing those considerations. Even if individual policies are not mandatory approval criteria, that must be independently satisfied or complied with. She pointed to the DRC's Mission Statement including interpretation of the City's CP and other applicable codes. She asked members to consider the effect that removing these two ancient giants would have on the following: tree canopy, heating and cooling and associated energy use, impact of greenhouse gases, air quality, surface runoff, erosion, water quality, habitat for urban wildlife (including insects and birds), heat pollution in water, economic vitality, privacy and noise buffers, mental and emotional health, crime, and property values. These considerations need to be weighed against a garage. Respectfully, she does not feel that this is a close question. She believes the trees should stay. She agreed with former testimony regarding the Applicant's burden of proof over reasonable alternatives. Reasonableness is a question of fact and is context-driven and context-dependent. What was considered reasonable 47 years ago, when the State's CP was originally enacted, may not be considered reasonable today, given the many changes in climate and reduction in animal species. She requested that the DRC deny this application. Applicant Rebuttal Mr. Goodrich acknowledged that no one likes to take the big trees out. In addition to what the 2- D plan shows, the yard setbacks, the height configuration, and the floor area, allowed for this City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 6 of 11 14 property, is substantially more restrictive. This has a cumulative effect, and was pointed out by Ms. Morey-Collins in the site plan that has the blue and yellow dashed lines. This building cannot be closer to the front property line because of the height requirement. Due to the coverage required, this building cannot be made any bigger to move it closer to the side yards. The garage is an accessory structure because they cannot attach it to the house, as it would reduce the lot (increase the required setback) by 15 feet, and this would not be a fair and equitable use of the ground. If they were to flip the garage over, they would get a zero-lot- line, but this would still only give them 7.5 feet to the foundation line of Tree 10304. The other tree is a cumulative effect, and the issue falls with Tree 10304. The envelope where the building goes is very restrictive, and this is fit right within that envelope. There is not a lot of excess left over. They worked through a number of options and the only option is to flip the garage, but that does not work when done. He opined that there was nothing left to offer. Speaking of the tree next to the other house, it was approximately 24 inches in diameter. The one on their property is approximately 48 inches in diameter, with the root ball being much larger than the ground cover. Saving the tree now could cause foundation damage in the future . Their arborist and the City arborist both looked at this and found no other alternative. He would not suggest doing any foundation mitigation, because bridging roots is only a short-term solution. Commissioner Smith asked Mr. Goodrich to explain again why the garage could not be attached. Mr. Goodrich stated that the rear yard setback for a detached garage is 15 feet but is 30 feet for an attached garage. The detached garage is currently seven feet away from the structure and 15 feet away from the back-property line. Commissioner Smith opined that if the garage were attached, they may give a variance, as an option to consider allowing to keep the two large trees. Mr. Goodrich opined that when you ask for a lot of exceptions with attached lots, they may not all be approved. They may not end up with the best solution when sitting down to look at all of these options, rather, they would end up with a contrived mess. Commissioner Smith then asked if they had their own arborist review the site or just the City's arborist. Mr. Goodrich affirmed that they had their own arborist there also, and they looked at issues with the other trees as well. Commissioner Smith asked if he had their arborist report that was not submitted. Mr. Goodrich replied that through that report, they found other species of trees were invasive. Commissioner Frankel inquired whether the height of the garage would cause issues with the setback. Mr. Goodrich responded that the height of the garage was relative to the height of th e structure and that was all controlled. With a tall building, you would have a narrow building, and this is not something that would contribute to the neighborhood. By keeping it less than 28-feet in height, they gain a few percentage points of lot coverage. Commissioner Frankel then asked for confirmation that there would be living space above the garage. Mr. Goodrich affirmed. Commissioner Frankel requested an explanation for the reason they chose not to request a variance. Mr. Goodrich stated that it is normally a very lengthy and involved process, which cannot be tracked well. He suggested to everyone to do these with the least amount of variance requests, and to be consistent with the zone. Due to the size of the trees and the confines for the structure, going for a variance becomes more difficult; however, they could put in more trees closer to A Avenue, but it would not add do the visual of having a treed area. Commissioner Silen asked if the structures were attached to each other. Mr. Goodrich affirmed. Commissioner Silen inquired if there was some construction reason why both structures could not be placed closer together. Mr. Goodrich agreed that there was no construction reason; however, the tree would still be kept seven feet in relation to the garage. Commissioner Silen requested an explanation of why the house structure could not be moved forward eight feet. Mr. Goodrich stated that you could not move forward and have a two -story City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 7 of 11 14 structure with a roof on it, given the setback. Also, the garage has still not been moved far enough forward to save the tree; adding that staff agreed with these findings. Chair Shearer pointed to Exhibit E-003, showing only four feet available space to move forward. He requested confirmation that Mr. Goodrich felt the trees could not be saved when moving the structures forward and attaching the garages to the structures. Mr. Goodrich agreed because the north and south direction remain the same. Commissioner Silen asked if the structures could be turned sideways to run east to west, rather than north to south. Mr. Goodrich explained that by doing so, you would have to contend with access to the rear of the building. They looked at that option, but it did not work out in yielding enough area. Commissioner Smith inquired whether there was a less intrusive way in building the garage foundation. Mr. Goodrich stated that floating a slab foundation would be problematic. The footings will be 16 to 18 -inches deep and that could be a bove the main roots, but they just do not know. Impacting the root ball will disadvantage the tree, and they may lose the tree. Bridging over roots often does not work as one is static and one is growing. Also, driving the tractor over the earth will tear up the roots. Mr. Boone informed Chair Shearer that they may now proceed to deliberations. Deliberations Commissioner Berardi stated that he spent many hours reviewing all the documents this afternoon. He acknowledged that it was heartbreaking, as these are large trees on a small lot; opining that they are being reactive here, coming in at this point trying to figure out a solution. He appreciated the thorough and eloquent testimony. To him, it appears that they should be looking for alternatives in either moving the garage or requesting a setback change of the City. He stated that he was still on the fence as to which way to decide . Commissioner Smith noted that he was troubled by the lack of presented alternatives. He appreciated and understood the explanation regarding the lack of request for a variance. He stated that he asked the questions he did due to being bothered by the removal of trees for a structure being placed completely in the lot. He opined that proposing a detached garage was a good way to gain 15 feet, in trying to save the trees. He stated that there were options in the design of the garage foundation that cou ld save the trees. He indicated that he would be voting "no" on this application, as he believes there are reasonable alternatives that have not yet been considered. There is no arborist report submitted by the Applicant, and the one that they have from the City just states there is no reasonable alternative, without giving a reason. He stated that he did not agree that this exception has been met. Commissioner Frankel agreed with Commissioner Smith's opinion. He would normally support this, as long as mitigation requirements and other solutions had been factored and applied. It is not his role to support whether the trees came down or not. His role is making sure that they follow the guidelines. He noted that Commissioner Smith made a good point in asking about the Applicant's arborist report, and how it talked about trees that were not those on the application. Based on the lack of explanation for there being no reasonable alternative, and on other decisions made in the past regarding variances, Co mmissioner Frankel stated that he will be joining Commissioner Smith in voting "no" on this application. Commissioner Silen had nothing else to add at this time. City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 8 of 11 14 Mr. Siegel asked Mr. Boone if the City had already adjudicated the question of whether requi ring an Applicant to request a variance was a reasonable alternative. Mr. Boone replied that that issue was raised last year, and the Commission found that the Applicant could not be required to obtain a variance, and that issue went to the City Council, who upheld that finding. That application dealt with the Applicant showing that he had met his burden of proof for a different reason. This is a 20-year interpretation based on code section that says, "Alternatives to tree removal have been considered an d no reasonable alternative exists to allow the property to be used as permitted in the zone." This is a tree code question and is not a land use regulation. When the tree code was revised two or three years ago, this wording was not amended at that time. Mr. Siegel thanked Chair Shearer for being allowed to ask that clarifying question; adding that he was comfortable that staff had performed their review correctly. Commissioner Smith stated that as he understood, as a volunteer Commission, their decisions are not “precedent,” rather, are guidance. He asked if the City Council had made that as a decision, as opposed to affirming the decision of the DRC. Mr. Boone informed members that when staff tells an applicant what the code is, they look to what the DRC decision is. An Applicant may choose to bring this back before the DRC to have them reverse their decision or take it up to the City Council to argue their case. In last year's case, the Council found (setting the variance question aside) that the Applicant had not shown that they could not move the building around a bit (so it was a failure of proof), and they did not say that the Applicant also needed to explore a variance. Commissioner Smith stated that he was careful to say what his criteria was, in making his decision, and that was not requiring the Applicant to seek a variance, rather, he said that he did not think that reasonable alternatives were submitted. He acknowledged that they cannot require an Applicant to change the footprint. He said that the Applicant did not meet the exception, and that there were reasonable alternatives the Applicant could use to save the trees. Mr. Boone stated that reasonable alternatives, in compliance with the outright permitted dimensional standards, are what the Applicant has to show (e.g., moving things around). He agreed that it was up to the Commission to decide whether that had been done, and not to the variance question. Chair Shearer asked if that meant that the Applicant had to demonstrate to staff and/or the DRC that they had attempted to move things around. Mr. Boone replied that the Applicant had to show first to staff and then to the DRC that no reasonable alternatives exist to allow the property to be used as permitted in the zone. Commissioner Arthur indicated that it struck him that there may be some alternatives to developing this lot that they may all agree might be appropriate, given this context, but those alternatives may not all be considered reasonable under the code. He asked what the DRC was to make of the fact that the Applicant did not submit an arborist report. Mr. Boone replied that that would be a "burden of proof" question, and that goes to the question of whether the building, as situated, would result in the removal of a tree, and it does, per the City's arborist; adding that he did not think that it made a difference where the arborist comes from, as the DRC looks at the evidence. They may look at the credibility and motivation of those submitting the testimony. The Applicant's obligation is to show that the proposed development would result in a tree removal, and what alternatives had been considered to lessen the impact to the trees. Staff found that the same root zone would be impacted even by moving this structure around by five to seven feet. The question would be whether you can get away from the root zone by some other alternative design. The Commission may also find that the City's arborist is not credible as to the impact to the root zone. Mr. Boone acknowledged that there was just the one arborist report to review. Commissioner Smith pointed to Exhibit F-003, as being the only arborist report; however, he did not see that when reviewing the exhibits. Ms. Morey-Collins replied that there was no arborist report received; adding that the City's contract arborist made notes on the application, and that is viewable at Exhibit F-001, page 3. Mr. Boone stated that he was looking at F-001, and the PDF page 3 is just a photo. Ms. Morey-Collins apologized for the confusion. Commissioner Smith stated that he was unable to locate the comments made by the City arborist. Ms. Morey- Collins indicated that it may be found at Exhibit F-003; however, she did not have access to the City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 9 of 11 14 server from her home office. Mr. Boone indicated that there was no Exhibit F-003 listed. Mr. Siegel requested that administrative staff retrieve this exhibit. Mr. Boone indicated that page 5 of the staff report summarized the arborist comments, citing that the trees are co -dominant crown- class, so it would be best to remove them together, as removal of one tree would expose the other, and criteria 3 cites to the health analysis (generally healthy, and having common defects, including broken tops and multiple leaders). He did not see any notes on Exhibit F-001. Ms. Morey-Collins located F-003 and Kat Kluge, Administrative Support, indicated that the exhibit was now included in the Public Record of File, in "Laserfiche." This one-page document was shared on the screen for all participants to view. Chair Shearer opined that it was not their job to figure out if there were reasonable alternatives, but it does not seem that anything has been submitted. You would have to slide the house forward four feet and move the garages to the lot line (gaining approximately eight feet), but this would still be in the critical root zone. He stated that the more important thing being that this was not their job. It would go to Commissioner Smith's question of whether any other alternatives were shown, and he only sees the one plan. Commissioner Silen pointed to a comment on Exhibit F-003 "Don't move the houses! The only alternative is to move the garages to 9th Street." He viewed this as even the City’s arborist offering that there may be a plausible alternative, and the applicant had not shown that having been considered. This is where his line of questioning came from. Commissioner Arthur stated that he appreciated Commissioner Silen's observation about that comment on the note. He asked if placing the garages on 9th Street was a reasonable alternative to consider under the code that applies. Mr. Boone responded that he believed the lot line would need to be changed to read north/south, rather than east/west. Ms. Davis replied that it would be technically possible to flip the houses and take the garage access off of 9th Street. Based on the narrowness of the lots, they are allowed to have a front-loading garage, which is otherwise against the code. The City prioritizes garages in the back with additional lot coverage and floor area allowed under the code. Commissioner Silen asked if that maneuver would alter the outcome for these two trees, with respect to proximity to the root balls. Ms. Davis indicated that the garage would still have a 15-foot setback, and the primary structure would still have a 30-foot rear yard setback. She believed that this would greatly decrease the size of the development, and in looking at Exhibit E-003, this would still line up with a 43-inch Douglas fir being removed. Commissioner Berardi stated that he understood that looking at the location of the house was not part of their purpose. He asked if the City ever made exceptions in granting another few feet to the setback. Ms. Davis replied that would be a variance request. Mr. Boone added that would not be an exception, as that has separate criteria . Commissioner Berardi opined that it was unclear whether they could save the tree based on the root -ball size. Chair Shearer inquired of Mr. Boone, whether it was their job or the Applicant’s job to figure out the question of moving the structure. Mr. Boone responded that the Applicant has the job of showing that reasonable Alternatives have been considered. The trigger is what is the reasonable alternative, and this cuts both ways. Where there is a request for a tree removal and the tree happens to be in the center of the building envelope, you would not need to show reasonable alternatives, as nothing else could be done. In this case, where the trees are on the side but the root ball would be damaged during construction, it would only be rearranging "the chairs on the deck" to move the garages to the front, given that the setbacks will still exist. Mr. Siegel added that, from staff's perspective, this is th e point and they found no reasonable alternative, and that is why did the DRC is not seeing additional evidence. If this were a larger lot with more room to move the footprint around in the envelope, you would see more City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 10 of 11 14 alternatives evaluated. Commissioner Arthur asked for clarification on his understanding that Mr. Siegel was saying that it was not a reasonable alternative to construct the garages in the front without moving the house back toward the alley, in a way that would endanger the tree. Mr. Siegel replied that he believed that this was correct, without having a variance application before them. Chair Shearer asked if one house could be built on two lots. Mr. Siegel responded that that would move into the territory of precluding development as allowed in the zone. Commissioner Smith noted that there was no discussion in the arborist comments about the trees being impacted or about them being unable to be saved. This is all they have as evidence. Mr. Siegel instructed Ms. Davis or Ms. Morey-Collins to speak to the conversation held with the arborist. Ms. Davis noted that Ms. Morey-Collins has not yet rejoined the online meeting, and she would be the one who spoke directly with the arborist. Mr. Boone informed members that would be considered e vidence not yet in the record, which would require a reopening of the public hearing. Decision Commissioner Smith moved to deny AP 20-01 [TR 499-19-05510], based on the lack of evidence that reasonable alternatives were submitted, in order to comply with the exceptions to the code. Seconded by Commissioner Frankel. Commissioner Arthur inquired whether the lack of an opinion from an arborist regarding potential harm to the trees was included in the motion or if the lack of reasonable alternatives was apart from that. Commissioner Smith replied that staff and the community stated that th ese were significant trees, but someone could still remove the trees after all reasonable alternatives have been considered. He does not see that the arborist commented that the trees would be lost or not lost with the construction of the structures. His motion would be based on the applicant not meeting the criteria for the exception. Mr. Boone stated that he heard both that there was no evidence about construction causing removal of the tree, as the size of the root ball is not known, and then there is no evidence of alternatives. Commissioner Smith responded that the only report from an arborist they have does not discuss the root ball or the structures being too close to save the trees. He has no evidence or a lack of evidence to base his decision on. Mr. Boone offered phrasing for the Findings, "There is no evidence that the development, even as proposed, would result in the tree removal," and/or "If there were to be an impact, no evidence of reasonable alternatives was presented to try to avoid the problem.” Commissioner Smith stated that his motion dealt with fitting within the exception. Chair Shearer added that the Applicant has not demonstrated, by submitting a report from an arborist, that the trees need to be removed. Mr. Boone understood this to be the first threshold, and the second is that there are no alternatives presented. Either of these would be sufficient as an alternative Finding. Commissioner Frankel agreed that both parts need to be included, given the lack of arborist report and the lack of alternative plans. Mr. Boone indicated that, if sent up on appeal, the City Council would want to see an explanation of both Findings. Commissioner Smith agreed to include both in his motion. Commissioner Frankel seconded the amended motion. Commissioner Silen requested a restatement of the motion. Mr. Boone indicated that the motion would read “To deny the tree removal application on the ground s that there is no evidence about the impact on the trees and no reasonable alternatives were presented.” A “yes” vote would be to deny the application. The vote was called, with the application denied 6:0. Written Findings, Conclusion, and Order to be brought back on August 17, 2020 at 7:00 PM. OTHER BUSINESS City of Lake Oswego Development Review Commission Minutes of August 3, 2020 Page 11 of 11 14 Schedule Review and Management Update Ms. Davis updated DRC members on upcoming meetings: August 17, 2020 has the Findings from tonight’s decision and another public hearing. ADJOURNMENT Chair Shearer closed by saying that these tree permits are one of the most difficult things that they do, and they really try to do the right thing by the rules and the City. He stated that he appreciated everyone's testimony and everyone's hard work. He adjourned the meeting at 9:14 PM. Respectfully submitted, /s/ Kat Kluge Administrative Support