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HomeMy WebLinkAboutApproved Minutes - 2020-11-16 PMCity of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 1 of 11 CITY OF LAKE OSWEGO Development Review Commission Minutes November 16, 2020 The Commissioners convened at 7:01 PM online, via Zoom. Members present: Chair Jeff Shearer, Vice Chair David Poulson, Craig Berardi, Kirk Smith, Jason Frankel, Mark Silen, and Randy Arthur Members absent: None Staff present: Jessica Numanoglu, Planning Manager; Jessica Morey-Collins, Associate Planner; Evan Boone, Deputy City Attorney; and Kat Kluge, Administrative Support Commissioners Arthur and Smith joined the meeting at 7:04 PM. REPORT ON COUNCIL ACTIVITIES Councilor Kohlhoff was not present to update members on Council activities. FINDINGS AP 20 -07 [TR 499-20-03148], a request for approval of a Type II tree application to remove three Douglas fir trees that are 30”, 27” and 27” in diameter at breast height (DBH) for proximity to the house and due to damage to existing infrastructure (a driveway). This site is located at 5275 Rosewood Street (21E04AD00130). The Staff Coordinator is Jessica Morey-Collins, Associate Planner. Commissioner Silen moved to approve the Written Findings, Conclusion, and Order for AP 20- 07 [TR 499-20-03148]. Seconded by Commissioner Berardi and passed 4:0, with 3 abstentions. PUBLIC HEARING AP 20 -02 [TR 499-20-02981], a request for approval of a Type II tree application to remove two Tulip poplar trees, both 53” in diameter at breast height (DBH), for landscaping purposes. This site is located at 480 5th Street (21E03DC07600). The Staff Coordinator is Jessica Morey- Collins, Associate Planner. Evan Boone, Deputy City Attorney, 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 Novem ber 16, 2020 Page 2 of 11 have no ex parte contacts, conflicts of interests, and no biases. Chair Shearer stated that he knew Mr. Panas, as their children went to school together. Vice Chair Poulson indicated that he had visited the site. There were no challenges to the Commissioners’ rights to consider the application. Staff Report Jessica Morey-Collins, Associate Planner, presented the staff report. The application was requested as part of a landscape plan and to abate damage to sewer pipes. The trees are located at the back of the lot, which is currently occupied by a single-family residential dwelling. The site is zoned EC (East-end General Commercial), with properties to the north, south, and east are also zoned EC, while properties to the west are zoned R-6. The trees are found to act as a screen between commercial and residential zones. The site is flat and contains no water courses. The trees are large, healthy Tulip poplar trees, and are found to be significant to the neighborhood character and aesthetics based on their size, species, and distinctive character. The trees are prominently visible from 5th Street, 6th Street, B Avenue, and A Avenue. Because the trees are found to be significant, they may only be removed if one of the exceptions to LOC 55.02.080(3) is met. The trees have distinctive canopies and are sentinel to the neighborhood. Tulip poplars are rare to this neighborhood and are also found to be significant based on species. No landscape plan nor alternative analysis was submitted with the application. These could show ways to include, rather than remove, the subject trees, and could assess whether root pruning would be a viable option to alleviate damage to the sewer system. According to the code criteria, the Applicant must demonstrate that alternatives to removal have been considered and that no reasonable alternatives exist. In this case, root pruning and incorporating the trees into the proposed landscape plan are both potential alternatives to removal of the subject trees. Staff finds that the criteria of LOC 55.02.080 are not met and recommends denial of the Type II tree removal application. Questions of Staff Vice Chair Poulson asked if there had been any applications for redevelopment for the property involved. Ms. Morey -Collins replied in the negative, adding that the reason for the application was a landscape plan. He then inquired to the class of the tree species. Ms. Morey-Collins stated that the trees in question were a non-native species. Chair Shearer requested clarification regarding the submission or non-submission of a landscape plan. Ms. Morey -Collins indicated that a description was submitted, but not a detailed landscape plan, and no alternative landscape plans were submitted. Applicant Testimony Marianne Wilson-Stein, Project Manager for LS Panas & Associates, stated that her company was hired by Red Dog Investments, LLC to complete a remodel on the building at this site. She relayed that their landscape designer told them that nothing could be done with landscaping the property based on the extent of the trees’ root systems. The intended use of the property incorporates small office spaces and the owner would like to have an aesthetically pleasing backyard for the tenants’ use and to increase the value of the rentals. City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 3 of 11 The original plan showed the trees included in the design for the patio; however, after posting the tree removal application notice, it became apparent that it was a property damage issue for the residents of the East End Commons Condominium complex. While improvements were being made to the interior of the building, the sewer backed up. The sewer line runs directly beneath the trees. A plumber was brought in who scoped the line and found that the line was impacted by the tree roots at 20 feet, 40 feet, and 60 feet from the building. The trees sit about 30 feet away from the building. The cost of repair was approximately $7,500.00 and the lines were cleaned; however, it was reported that this would not be a permanent solution because the roots would again puncture the line’s membrane, as trees we re attracted to water. Regarding the tree code criterion over removal due to outgrowing the landscape area and/or being part of a landscape plan, the tree canopies take over the back half of that lot and encroach upon the southern property (the East End Commons Condominiums). Roots were reported to be in their crawl space. Seeds have dropped into the air conditioning units. According to her research, the limbs get brittle at the top, causing a low wind resistance. These trees have no other taller trees nearby to stop the wind from coming in and breaking off limbs. The windstorm in September caused multiple limbs to fall (one landing on the powerline in the backyard of this property and multiple landing on the roof of the condominium next door). According to the University of Louisiana, these type of trees are not recommended to be planted near driveways, streets, or homes due to their being less flexible with age. Since the application was filed, the property owner has begun to consider some development options at the back of the property. The lot currently contains a garage in the southwest corner, in which an addition is being considered. The tree to the southwest sits 7 1/2 feet from the garage. Photos were submitted showing what was happening to the garage. Mr. Boone informed Ms. Wilson-Stein that if they were expanding the application to include some development, a new notice would need to be sent out to inform people of those intentions. Ms. Wilson-Stein replied that she wanted to bring that to the Commission's attention, and that bringing the tree removal permit may have been premature. Mr. Boone suggested bringing the landscaping aspect forward now, and depending on the outcome, they may wish to file a new development application later on. Ms. Wilson-Stein informed members that the property owner also owns the property to the north (520 B Avenue). The property owner's son currently lives in the house at 520 B Avenue. As part of the landscaping plan, they wished to include a fenced yard with grass for the son's dog. The owner has made some exterior improvements, including to the parking area. The plan called for installation of a brick-paver patio area, but the designer indicated that the root system would prevent this. The suggestion of building a deck was felt to be more of a liability issue due to possible slip and falls from the rain and the leaves that would accumulate on the deck. It was recommended that the tree roots near the garage could not be pruned because they were too large. Options were considered; however, not much could be done because of the size of the trees. Because nothing could be planted beneath the trees, they were asking that the application be approved. She acknowledged that the trees were significant, but opined that, as a society, a line had to be drawn between maintaining tree canopies and the tree-danger to life and property and being able to sit out in a yard, enjoying nature. The original submittal has grown as a concern for the neighbors' safety and property damage too. These trees would be beautiful in a park setting; however, they have outgrown this postage stamp lot. Questions of Applicant Commissioner Berardi asked to review Exhibit G-106. He acknowledged that he understood the aspect of tree roots growing into and destroying the pipes, as it happened to him. However, he City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 4 of 11 opined that this might not have been approached the right way, from a landscape standpoint. Mr. Boone requested that this not be a time for deliberation. The image for Exhibit G-106 was shown. Commissioner Berardi asked for confirmation that the roots were sitting above ground. Ms. Wilson-Stein affirmed that they were about 2 feet above ground in places, adding that one of the trees had a weak point where included bark was found at the "v" juncture. This could cause the tree to split wide open, hitting the property to the north and the property to the south. Commissioner Frankel inquired whether the arborist report and the plumber's report were available to view. Ms. Wilson-Stein replied that she believed the plumber's information and video were forwarded to staff earlier in the summer, but the arborist indicated that he did not want to be part of the hearing. Chair Shearer asked staff if the plumber's report was received. Ms. Morey - Collins Stated that a report was not received; however, an email summary was received and was part of the application. Ms. Wilson-Stein acknowledged that it was her summary that was sent, but she did have a copy of the video of the plumber speaking about the issues with the roots. Commissioner Arthur asked whether an assessment was performed to rule out root pruning. Ms. Wilson-Stein stated that the arborist told her root pruning would not be an option that he would recommend, as it would be the main roots that would need to be pruned. Jessica Numanoglu, Planning Manager, noted that Ms. Wilon-Stein’s summary of the plumber’s report could be found at Exhibit F-004. Public Testimony In Favor Christine Kalscheur, 466 5th Street, Lake Oswego, OR 97 034, stated that she supported the application because the trees posed a hazard and she lived right under them. She acknowledged that they were beautiful; however, they where an exotic, fast-growing species that had matured past their limit of sustainability. She informed members that the species was recommended for planting in a much larger area away from structures. Falling limbs have damaged the roof over her bedroom, causing the need for repairs. Given the velocity with which the limbs can fall she and her husband were wary of being outdoors beneath them. She opined that the roots could not be managed by trimming, even though the limbs might. She indicated that the roots have protruded 30 feet into their home’s crawl space, limiting access and threatening to damage the gas and water pipelines and the heating duct work. She noted that she included photos in her written submission. Don Kalscheur, 466 5th Street, Lake Oswego, OR 97034 , noted that their condominium sat 15 feet directly south of the Tulip trees. He requested that the Commission allow the trees to be removed, as they were a hazard to their adjoining property and have less benefit to the City's environment than others suggest. He opined that the trees no longer had the space needed for the size that they were. Other massive worldwide efforts were needed to reduce the impact of climate change, rather than retaining a few trees here and there. The leaves that fall blanket the ground and roofs and add to the CO2 problem. The roof of the condominium had to be replaced six years prior to its projected date because of the leaves building up in the gutters causing a water dam resting on the roof. He noted that he had been stumbling over the roots in the crawl space. He requested that members allow these trees to come down. Craig Chisholm, craigchisholm@comcast.net, noted that he was a retired attorney and had been trained as a master woodland manager through the Extension Program at Oregon State University and also had a science degree from Yale University and owned some timberlands. As a member of the Tree Code Revision Committee for Lake Oswego, he observed a site in Portland where a teacher was crushed to death by a falling tree, remembering this incident City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 5 of 11 because it was needless harm. He acknowledged that he had a strong bias against trees that kill people. When these trees fall, as they must, the force of the fall will also be massive. He agreed with the opinion regarding the codominant stem of the tree being a place of weakness. He noticed some sort of a line on the west side of the furthest west tree, believing it was included bark, which has very little structural strength. He pointed to a circular section of bark which could indicate an included branch. He opined that the language of the code was absurd in the legal sense, as no reasonable person could support it, as it did not talk about safety for people. Patricia Arndt, 468 5th Street, Lake Oswego, OR 97034, spoke as the HOA president of the East End Commons Condominium. She indicated that the condominium was more affected by the limbs and the leaves than the actual property in question. She reminded members that seven people were killed by falling limbs in the Portland ice storm of 1979. She opined that the safety for those living nearby these trees was worth more than the beauty seen by others from further away. She raised the question of who would be liable if someone were injured from one of the falling limbs (Mr. Boone stated that this was not the place to give legal advice). In her opinion, the trees have outgrown their current space. Diane Schweisguth, 462 5th Street, Lake Oswego, OR 97034 , stated that she was another owner in the condominium (at the far end). She noted that she has experienced aphid droppings falling on her head while sitting outside, having to sleep in the guest bedroom for fear of limbs falling on her bedroom roof during windstorms, seeing roots fill the crawl space under the condominium, tree seeds filling her air conditioning unit, and damage being done to the gutters by falling limbs. Their concerns center around property, personal safety, liability, environment, and health, and were noted in the written comments found in Exhibits G-100 through G-103 but were not addressed in the denial. Damage to the abutting properties has occurred in the past and will likely continue to in the future based on the nature of these trees. She listed some facts about Tulip trees, already noted in prior citizen testimony. She opined that the trees are not suited for populated areas. She acknowledged that everyone loved trees and knew about the benefits of having trees. Linda Brumder, 464 SW 5th Street, Lake Oswego, OR 97034, agreed with every one of her neighbors that had spoken before her, adding that the trees were beautiful, but they belonged in a large field not in a small backyard. She restated the difficulty they had with accessing the crawl space beneath the condominium due to the overgrown roots, with damage caused by falling branches, and with the gutters clogged by leaves. She opined that the owners should replant trees that would be appropriate to the lot size. In Opposition Jeannie Mikulic, 535 B Avenue, Lake Oswego, OR 97034, stated that she sees these trees from her office window every day and agreed that they were beautiful and majestic, opining that it would be a loss to the neighborhood if they were taken down. She indicated that she did have empathy for the people living in the East End Condominiums but wanted to remind the Commission that this was an application about landscaping. Jill Cabral-Schinn, jilljcabral@gmail.com, noted that she lived on Cumberland Road. She also agreed that she felt empathy for those who were fearful of the trees. She pointed to the application being for landscape purposes, with no alternatives provided. She opined that routine maintenance could manage leaves in the gutter and roots in the crawl spaces and the trees should not suffer because of this homeowner's responsibility. City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 6 of 11 Applicant Rebuttal Ms. Wilson-Stein acknowledged that those who spoke in opposition were correct in stating that this was a landscape use proposal; however, it became evident through the process that this was a hazard issue in that there were significant issues for the neighbors. She also acknowledged that there was maintenance needing to be done, but this was a case where the trees had outgrown their space and were no longer viable to maintaining a healthy existence. Keeping them could cause harm to the neighbors surrounding it. If the trees were allowed to stay, they still could not landscape the back in terms of things being able to grow and in utilizing the space to the property owner’s intent. She agreed that good points were made regarding the structure of the tree by Craig Chisholm. If this application were denied, they would proceed further down the route, as it was apparent how dangerous trees actually were. Commissioner Berardi inquired if any major pruning had been done in the last five years, especially over the neighbors' homes. Ms. Wilson-Stein could not answer that question as she has only been involved in the property in the last couple of years. Deliberation Mr. Boone instructed Chair Shearer that they may open deliberations. Commissioner Frankel stated that he was not dismissing comments made, as both sides made valid points; however, it comes down to the applicant’s burden of proof. He indicated that before he could make a decision that was an attempt at an approval, he would need to see the arborist report, the plumbing reports, the damage reports, and an actual landscape plan that would include what would be done if the trees were gone. Commissioner Arthur concurred with commissioner Frankel's comments. He opined that there was insufficient evidence regarding the consideration of reasonable alternatives, such as root pruning or an alternative plan to incorporate the existing trees, as noted in the staff report. He pointed to the statements made by several people that these were beautiful trees and how the community values them, noting the apparent tension between the community who views the trees from afar and the property owner's rights and the rights of the people in the condominium. He indicated that there was no evidence to show that the trees were planted on a postage stamp- sized lot, and the trees were already present when the condominium owners purchased their properties. He stated that he did not see that the Commission was being asked to evaluate this application on the basis of the trees being considered "hazardous" under the City's ordinances and rules. They also do not have an application for future development, so he will view it in the terms of just the landscape application. Commissioner Silen noted that, as presented as a landscaping issue, there was no doubt that there was insufficient evidence to find anything other than as found by the City's Planning Department. As they were charged with voting on the merits of this case as a landscaping issue, rather than as the introduced topics of safety and property damage, he indicated that the decision to make was not a very difficult one. The safety issues raised would need to fall under a different proceeding. Vice Chair Poulson expressed frustration over the lack of coaching the Applicant received, in terms of the legal responsibility the Commission has to rule on, based upon the criteria under which they applied for within the code. With better coaching, the Applicant might have come in with better documentation regarding the nature of the trees. Under the code, the criteria for removal were not met, and members seemed to agree on this. Vice Chair Poulson acknowledged that the trees appear to be too large for the postage stamp lot they were on and were dominating City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 7 of 11 everything, adding that he could not use this as criteria for making his decision. He indicated that he would need an objective professional source to speak about the trees’ possible hazardous condition. He indicated that he would vote in favor of the City's recommendation. Commissioner Smith noted that he would have nothing else to add to the comments made by other members. Commissioner Berardi acknowledged that there was good cause on both sides; however, you would need an arborist report to address whether the trees have outgrown the changes in the neighborhood, the effects on the neighbors, and whether the problems could be corrected by pruning. He stated that he tended to agree with what was said by the other Commissioners. Chair Poulson stated that his opinion agreed with the last paragraph found in the staff report (the application failed to satisfy the criteria for the issuance of a Type II tree cutting permit and the application should be denied, unless further information was submitted). Vice Chair Poulson moved to deny AP 20-02 [TR 499-20-02981], as enunciated by the City arborist. Seconded by Commissioner Smith and the denial passed 7:0. Written Findings, Conclusion, and Order for this Tentative Decision to be brought back to the Commission on December 7, 2020, at 7:00 PM. AP 20 -08 [TR 499-20-03940], a request for approval of a Type II tree application to remove two Douglas fir trees, 26.5” and 44.5” in diameter at breast height (DBH), due to damage to a retaining wall and driveway. This site is located at 1660 Campus Way (21E16BA01200). 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 have no ex parte contacts, conflicts of interests, and no biases. Vice Chair Poulson indicated that he had visited the site that day. Commissioner Berardi stated that he has seen the site, as he lives nearby. There were no challenges to the Commissioners’ rights to consider the application. Staff Report Jessica Morey-Collins, Associate Planner, presented the staff report. The trees are located at the front of the lot. The site is zoned R 7.5 and is developed with a single-family residence. Surrounding properties are also developed with single-family residences. The site has a slight slope from 410 feet in elevation at the west to 420 feet in elevation at the east. The site contains no water courses. The trees are proposed for removal due to damage to an existing driveway and retaining wall. The City's contract arborist and staff observed a crack in the driveway but could not substantiate that the crack was caused by tree roots. The Applicant submitted photographs of his own exploratory excavation of the area that show several small roots along the retaining wall. In the contract arborist's opinion, the roots are of a size that could be pruned. The Applicant bears the burden of proof to demonstrate that the damage to the driveway and retaining wall are caused by the subject trees, and further, that this damage could not be remedied through City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 8 of 11 reasonable pruning and maintenance. In this case, the driveway might be repaired with concrete patch or filler without necessitating removal of the significant tree. Similarly, the Applicant has not submitted evidence to show that the roots are interfering with the natural gas line nor that root pruning is not a viable option to mitigate risks to the natural gas line. Finally, normal shedding of cones, needles, and other debris from the tree are not typically considered in the review of a Type II permit and do not relate to the criteria of a tree having outgrown its planting space. The trees are large, healthy Douglas firs, and the larger of the two is found to be significant to the neighborhood character and aesthetics based on its size. The trees are prominently visible on Campus Lane and Greentree Road. Based on the significance of the larger tree, it may only be removed if one of the exceptions to LOC 55.02.080 is met. Staff finds that the criteria of LOC 55.02.080 are not met and recommends denial of the Type II removal application. Questions of Staff Commissioner Smith asked about the statement in the arborist report regarding the smaller tree having a broken crown and whether the Applicant could get a permit for the smaller tree. Ms. Morey-Collins replied that the smaller tree was not found to be significant; however, it was not substantiated that the tree root was causing damage to an existing structure, so they did not have grounds for removal. Ms. Numanoglu added that staff found that neither tree met the first criterion (that the removal was for landscaping or development purposes), and that the stated reason for removal was because the trees were damaging the rock wall and the driveway. Evidence has not been presented in the record that either of the trees are the cause of the damage to the driveway or retaining wall. Under a Type II permit, all criteria must be met in order to gain approval. Commissioner Berardi noted that the photo of the driveway seemed to show a depression. He asked whether a root would cause uprooting rather than settling and if there was any bulging noted in the rock wall. Ms. Morey-Collins stated that she did not observe any bulging in the wall, but that she was also not qualified to discuss whether damage to an existing driveway was caused by one thing or another; adding that the City's arborist stated that the damage seen in the driveway was typical of normal wear and tear and age of this type of construction. Applicant Testimony Tom Horman, Property Owner, stated that he had a love and deep appreciation for trees, knowing they have many virtues, chief among them being carbon absorption. He agreed with the general stance in Lake Oswego that trees merit protection. He informed members that he was a Chair for the City of Forest Grove's Planning Commission in the 1980s and gave a brief summary of his background. Since owning the property, they have removed three large trees (two that sat right next to the house and one that was a dead tree) and recently removed two Type I trees that were encroaching on the play structure. They also have recently planted a dogwood tree and a couple of apple trees. On their 12,000 square-foot lot, they have a substantial number of trees (covering approximately 70%). City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 9 of 11 He pointed out that there seemed to be no universal definition for woodland versus forest, other than a woodland being up to 80% coverage and a forest being 80% or more. Even though his application was initially denied, he opined that he submitted substantial evidence in three key areas, which would be more than enough to meet the criteria for approval. If proper consideration was given to the evidence in any one of the three areas, he opined that the City should be obligated to grant his request. He acknowledged that for one of those areas, his eye condition was not a topic specifically addressed in the City's ordinance, but to be compliant with the State's Constitution, the statute should provide for how a request like that should be handled, and at the absence of it, some reason should be applied to the situation and treated accordingly. Mr. Horman indicated that City staff failed to properly consider and report their findings on all of the relevant issues and concerns that he had submitted, and claimed that the City's Planning Department Manager literally laughed at his assertion and concerns over his eye condition. He noted that he did not see the letter he submitted from his eye doctor in the record, after requesting that it be included. He informed members that his eye condition (allergic conjunctivitis) will flare up and escalate into scleritis, which could cause blindness, and that his eye doctor believed that the removal of the trees could help his condition given that the cause is allergies. He stated that he is only asking for the removal of the two trees that he passes beneath daily, rather than all of the trees of that species on his property. This is an emotional issue for him and was the driving factor behind the application. In dealing with the code, he stated that staff had misstated the actual language in the code and what he believed it said. Mr. Horman read LOC 55.02.080, Section 3, Exception A; opining that he only needed to prove that the tree wa s "likely" to cause future damage. He pointed to the pictures provided of different uprooted Douglas fir trees and what those root structures would typically look like underground, and to the chalk-line drip-lines demonstrating the width of the roots. He opined that the evidence provided should be considered prima facie evidence, showing how the roots must be the cause for the cracks in the stone wall and added that he found nothing in the code requiring an arborist be the one to provide the evidence. As the trees grow, you will see mounding as the roots also grow (being greater at the base and tapering as you move away from the base of the tree), and his concrete driveway and retaining wall were not made to bow with the mounding ground. Mr. Horman then stated that staff acknowledged that the arborist had agreed that the likely cause of the damage was from the tree, but then staff went back and provided an opposite conclusion based on the notio n that he must prove, beyond a shadow of a doubt, the trees were causing the damage, which was simply not the case. Mr. Horman then addressed the fire hazard. Input was provided by City staff on page 5 of the staff report (towards the bottom of the page), where they incorrectly stated that they were intended to support the cracking and the other possible effects that he had listed. He indicated that he thought he was clear in stating that this was another reason to justify removal of the trees on its own merit. The drip-line over the garage was intended to demonstrate the overlap, and that the trees fail to meet the recommended distance away from the house, per the fire department. With the proximity to the house, a burning branch could cause damage and would be a reason for removal under the code (this is in clear violation of published state and national guidelines to help protect structures from wildfires). W ith the type of fire season that they had this last summer, he opined that it was unreasonable to conclude that there would be no risk at some point in the future. He pointed to Exhibit H, where he cited that several cities and municipalities have recognized that Douglas firs were a fire hazard and should not be planted within 30 feet of any house. Questions of Applicant Commissioner Smith asked Mr. Horman to explain the relationship between his eye condition City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 10 of 11 and passing beneath the Douglas fir trees. Mr. Horman explained that there is a Douglas fir two feet from the awning of his front door, extending to where his car is parked and that there is another grouping of Douglas firs between the closest Douglas fir and the street, adding that his neighbor also has Douglas firs that hang across his driveway. To avoid the trees, he normally will exit through his garage door to get to his car. He stated that he was allergic to almost every tree tested for, except for dogwood, and it was on a scale of three to four. It was worse when the pollen was falling from January to June and he was also allergic to the sap. Commissioner Smith then requested clarification regarding the Constitutional argument. Mr. Horman replied that boards and commissions we re there to protect the public. In this case, he was looking at the ordinance and how it would force him to keep a tree that would cause health risks and fire risks (citing the fire in Oakland in 1991 that wiped out over 3,000 homes and killed 45 people). He opined that a streetscape that had less fire hazard trees was just as beautiful as one that almost guaranteed that they would burn down. Public Testimony No citizens were present to provide testimony. Deliberation Mr. Boone instructed Chair Shearer that they may open deliberations. Commissioner Arthur asked staff what criteria would be applied to the Applicant's eye condition or whether it was appropriate to take that into consideration as a basis for this application. Ms. Numanoglu replied that they sympathize with the applicant’s health condition and there have been others who have made such an argument, but Criterion 1 states that the removal must be for landscaping or development purposes and medical conditions were not addressed in the criteria. Commissioner Berardi requested that a picture of the front yard be shown again. He indicated that he did not see a close-up view of the trees in those pictures, but that he had a similar driveway with a crack straight across (probably from settlement, as he has no nearby trees). Commissioner Silen noted that the image of the driveway crack appeared very transverse and straight, and as a "v" with the apex down. In his opinion, it did not look like a root causing it to burst up. With respect to the fire hazard, he indicated that he did not find it to be a very persuasive argument, given that the request was not to take down every tree on the property. Regarding the eye condition, he stated that he did not see definitive proof nor a correlation of one to the other. Vice Chair Poulson opined that the crack in the driveway could be caused by the roots, not just because of the uplift, but because a root could be a pathway for water that created void spaces. He noted that the driveway condition was common in that neighborhood and that the retaining wall was common to define the planting area for those trees. He stated that he believed everyone would embrace a certain maintenance responsibility that came with having a house in an urban forest, as typifies Lake Oswego. He found that the Applicant had not met the standard for the applicable criteria in the code, as the city has found. He indicated that he would move in favor of the City on this application. Vice Chair Poulson moved to deny AP 20-08 [TR 499-20-03940], based on the code criteria not having been met, as stated in the staff report. Seconded by Commissioner Frankel and the denial passed 7:0. Written Findings, Conclusion, and Order for this Tentative Decision to be brought back to the Commission on December 7, 2020, at 7:00 PM. City of Lake Oswego Development Review Commission Minutes of Novem ber 16, 2020 Page 11 of 11 OTHER BUSINESS Schedule Review and Management Update Jessica Numanoglu, Planning Manager, updated DRC members on upcoming meetings: December 7, 2020 has a development review application for a multi-family building across from the post office on 4th Street and a similar-use application for Kruse Village. December 21, 2020 has nothing definitively scheduled. ADJOURNMENT Chair Shearer adjourned the meeting at 9:25 PM. Respectfully submitted, /s/ Kat Kluge Administrative Support