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HomeMy WebLinkAboutApproved Minutes - 2021-01-20 PM s� CITY OF LAKE OSWEGO I�r� �-' Development Review Commission Minutes �� v January 20, 2021 o EGOr The Commissioners convened at 7:04 PM online, via Zoom. Members present: Chair Jeff Shearer, Craig Berardi, Kirk Smith, Mark Silen, and Randy Arthur Members absent: Vice Chair David Poulson and Jason Frankel Staff present: Jessica Numanoglu, Planning Manager; Evan Boone, City Attorney Pro Tern; and Kat Kluge, Administrative Support REPORT ON COUNCIL ACTIVITIES Councilor Rapf updated members on the following City Council activities: City Council ruled to uphold the Development Review Commission's (DRC) decision to deny the application of a resident's request to remove two trees on a 6:1 vote (noting that he voted against because he wanted to remand the application back to the DRC, as the Applicant had more evidence to present); City Council voted unanimously to approve the Diversity, Equity, and Inclusion (DEI) request for a full-time staff member and a permanent advisory committee; there will be an all- day, off-site goal planning session on January 23, 2021 via a Zoom meeting, with three to four new goals being established and carrying forward those that were not completed in 2020; and additional resolutions were passed to support local small businesses through COVID. Evan Boone, City Attorney Pro Tern, noted that the appeal mentioned by Councilor Rapf related to the one at 1660 Campus Way, brought by Mr. Horman. He recommended that members be watchful for ex-parte contact, as this matter may come before them again. MINUTES December 7, 2020: Commissioner Arthur noted one error on page 2 of 7: the last section of the sentence two lines above the heading "Staff Report" should be removed as it was not a factually accurate statement- "...Leslie Aiken, who had an office on this site, but had not been in that office." should read, "...Leslie Aiken, who had an office on this site." Commissioner Smith noted one error on page 2 of 7: OTAK is and continues to be a client of Buchalter and he did not want this to be presumed to be in the past, so "...was a client..." should read "...is a client..." Commissioner Arthur moved to approve the Minutes of December 7, 2020, as amended. Seconded by Commissioner Smith and it passed 5:0. December 21, 2020: There were no corrections noted. Commissioner Silen moved to approve the Minutes of December 21, 2020. Seconded by Commissioner Arthur and passed 3:0, with 2 abstentions. City of Lake Oswego Development Review Commission Minutes of January 20, 2021 Page 1 of 5 FINDINGS LU 20-0030, a request for formal code interpretation of "Specialty Food" use as it relates to minimum parking requirements for certain tenants of the Kruse Village Shopping Center. This site is located at 4591 Carmen Drive (21 E07AA00110). The Staff Coordinator is Ellen Davis, Associate Planner. Commissioner Arthur moved to approve the Findings, Conclusions, and Order of LU 20-0030 (Findings #2002), as submitted. Seconded by Commissioner Berardi and passed 4:0, with 1 abstention. LU 20-0011, an appeal of a staff decision to approve a 2-parcel minor partition with a flag lot and the removal of 22 trees. This site is located at 13962 SW Knaus Road (21E04DB00900). The staff Coordinator is Erik Olson, Senior Planner. Mr. Boone noted one typographical correction to be made on page 4, line 4, changing the word "sufficient" to "sufficiency." Commissioner Arthur informed members that he wished to disclose a couple of unsolicited ex- parte contacts following the hearing. One was an email received from a Board member of the Forest Highlands Neighborhood Association (FHNA), which basically asked what had happened that they were unable to present their appeal. He noted that his response was a factual summarization of what had occurred, and also alerting them that he would have to declare that as an ex-parte contact. Commissioner Arthur read a portion of the return response from the Board member. The next unsolicited email came from a citizen of Lake Oswego, who was not a resident of Forest Highlands. He informed this person that he was unable to speak of the matter due to the ex-parte contact time-period. He reported that neither of these contacts changed his views of the matter. Chair Shearer asked if it would be appropriate for Commissioner Arthur to forward the emails to Mr. Boone. Mr. Boone replied that Commissioner Arthur could forward the emails to Ms. Kluge to be included as part of the record, adding that with this declaration and there being no person present to inquire further before the vote, they would be basically done with the declaration. Commissioner Arthur stated that he had some comments on the Findings themselves. He expressed his disappointment that they were not hearing the appeal by the FHNA, opining that on this record, it set a bad precedent when a recognized Lake Oswego neighborhood association (NA) could not be heard. He noted that he thought that it undermined the formally recognized citizen engagement program in the City. He indicated that he was not expressing an opinion regarding the appeal or any merits of it, or whether there was any basis to appeal, or whether there was any room for improvement in the proposal. With this decision, he opined that it was like they were telling people "Don't bother to get involved or participate in the neighborhood program because we won't listen to you." Pointing to the Comprehensive Plan, he cited the characterization that recognized NAs were " integral parts of the City's land use planning and decision-making function." Commissioner Arthur then noted his thought that the Draft Findings emphasized that the FHNA had an obligation to bring their bylaws forward, but they did not do that and there was no way for members to know what was in the bylaws. Then the representatives of the NA testified that they had fully complied with Robert's Rules of Order, had reached their decision in regular City of Lake Oswego Development Review Commission Minutes of January 20, 2021 Page 2 of 5 Order, and had complied with the bylaws; however, DRC members had no way to ask them questions about that or scrutinizing whether they had done so. He then cited the argument on page 3 of the Findings regarding the absence of the bylaw, adding that he wanted to point out that the bylaws were an official City document available on the City's website (readily accessible to anyone). He opined that by basically saying they were hidden and then penalizing the NA for not disclosing those bylaws would be factually erroneous and did not reflect well on them. A rebuttable presumption was created when the FHNA testified that it had reviewed their bylaws and concluded they had complied with them. He noted that the Applicant nor anyone else rebutted that statement. He opined that they were left with this appeal being properly approved by the NA, as members could have verified this through the City's website just as they would any of the City code they were reviewing, without having to have a physical piece of paper presented. Commissioner Arthur stated that he believed that the NA submitted proper documentation of Board approval (i.e., the November 18,2020 email with the statement "We are forwarding the approval from the FHNA Board."). They could infer that regular Order was carried out, in the absence of someone pointing out that it was not. He stated that he would find this, if not full compliance, at least sufficient compliance (as the record showed that code requirement did not apply due to there being representation from the board and witnesses supporting the appeal present at the hearing). He informed members that he was a part of the Planning Commission and Commission for Citizen Involvement when this was being reviewed prior to the City Council approval in 2017. In his observations, he found that this was not a rogue resident trying to cloak themselves in the name of the FHNA Board in order to get a free appeal, rather, the evidence showed broad community support and proper approval by the Board prior to the hearing. He pointed out that one of the DRC's duties was to provide for public review and comment on development proposals which may have a significant impact on the community. He opined that it was a mistake to not have heard the appeal as all involved individuals were present at the January 4, 2020 meeting, and since that was not done, they should go forward with setting a new hearing date. He restated that he would be voting no and concluded by thanking members for allowing him to express his opinions on this matter. Commissioner Smith asked Commissioner Arthur if he had an issue with the content of the findings. (Commissioner Smith's video connection froze just after asking his question.) While waiting for Commissioner Smith to reconnect, Commissioner Berardi stated that he wanted to echo Commissioner Arthur's statements because that was the reason he also voted no. He opined that there was sufficient compliance in their representation, and he did not want to set the precedent of not hearing the FHNA Board, adding that this was the way he still felt and now they were heading down the road of just voting on the Findings. Mr. Boone explained that they were in a situation where only four of the five members were present to now vote and that would leave them at a 2:2 vote. He suggested that the best thing would be to continue the adoption of the Findings. Chair Shearer asked what would happen if they did not adopt the Findings and also asked for confirmation that they could not undo what was already done. Mr. Boone replied that it could be undone because a tentative decision was not a final decision. If members have changed their feelings, they could debate it and direct staff to prepare different Findings or to correct these Findings. As far as adopting Findings, Mr. Boone stated that would need to be done eventually as the Applicant had an application pending and the City would need to make their decision within the 120-day period. If the decision was appealed up to the City Council, they would need to shorten the time frame on it. Chair Shearer stated that he appreciated many of Commissioner Arthur's statements and agreed with them, but in his mind, he had no idea what the FHNA submitted, as the statement City of Lake Oswego Development Review Commission Minutes of January 20, 2021 Page 3 of 5 of"Joe" and "Frank" said that they wanted it was not evidence and it proved nothing to him. He informed members that he was not trying to deny anyone their time of a hearing, but at the same time, the property owner's rights needed to be protected as well. He opined that the FHNA did not do their due diligence in providing the paperwork they were supposed to, adding that he was unaware until the night of the meeting that the bylaws for the NA were posted on the City's website. He stated that he was under the impression that staff had conveyed what needed to be produced and when it needed to be produced by, also stating that he did not think that the FHNA produced a clear and concise record for members to know what they were submitting. Chair Shearer expressed again that he would never try to turn someone down or tell them not to be involved, adding that there were rules to protect both sides, and this was the reason that he voted yes. Commissioner Arthur agreed that members needed to protect the rights of the property owner as well as the NA, adding that he thought that the DRC had a reputation of doing that by looking at the evidence, applying the criteria, and making a decision, and that was what he was urging they should have done. He opined that the Finding about how the documentation ordinance was applied was unclear. Chair Shearer asked Jessica Numanoglu, Planning Manager, for confirmation that staff communicated what was expected. Ms. Numanoglu replied that she believed that staff included some suggestions of what could be submitted to provide that documentation. She noted that they were not there to try to dismiss appeals, and that they clearly communicated the deadline, which the FHNA did not meet, explaining that they must follow the process. Going forward, she stated that this would be a staff-level (City Manager) decision and not something that they would bring to the DRC again. Ms. Numanoglu informed members that she recently had a discussion with Ms. Ockert, the Chair of the recently-formed Neighborhood Chairs Committee, about the NA documentation issue and that she and the Planning Director will have a meeting with Ms. Ockert to discuss this further (with a possible code amendment as the outcome). Commissioner Silen asked for an explanation of the difference between being substantially compliant and being compliant. Mr. Boone replied that substantial compliance would apply in a case of conditional approval (e.g., providing 14.7 feet of a 15-foot requirement) or when a person meets 9 out of 10 when accomplishing the purposes. In this case, he pointed to the text in the code, and that staff give a suggestion of what they thought may be necessary in order to comply (i.e., Minutes to show the meeting was held). Commissioner Silen noted that the key question remained "Was that documentation provided?" Mr. Boone responded that he suspected that it would still be the key question 2 weeks from now, as he did not see how this could pass if it were still a 2:2 vote. Chair Shearer thanked members for their comments and directed that this discussion be tabled until the next meeting. Mr. Boone asked Commissioner Smith if he reviewed this record. Commissioner Smith replied that he had not, but he could in time for the next meeting. OTHER BUSINESS Schedule Review and Management Update Ms. Numanoglu updated DRC members on upcoming meetings: February 1, 2021 has an appeal on a staff-approved addition to the Tennis Center. City of Lake Oswego Development Review Commission Minutes of January 20, 2021 Page 4 of 5 ADJOURNMENT Chair Shearer adjourned the meeting at 7:42 PM. Respectfully submitted, /s/ Kat Kluge Administrative Support <Z City of Lake Oswego Development Review Commission Minutes of January 20, 2021 Page 5 of 5