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HomeMy WebLinkAboutApproved Minutes - 2022-06-06 PM Development Review Commission Minutes June 6, 2022 Page 1 of 7 CITY OF LAKE OSWEGO Development Review Commission Minutes June 6, 2022 The Commissioners convened at 7:00 PM at City Hall, in the Council Chamber, 380 A Avenue, Lake Oswego, OR 97034. Members present: Chair Jeff Shearer, Vice Chair Randy Arthur, Kirk Smith, Mark Silen, Craig Berardi, and Bruce Poinsette Members absent: Dwight Sangrey Staff present: Jessica Numanoglu, Planning Manager; Evan Boone, Deputy City Attorney; Daphne Cissell, Associate Planner; and Kat Kluge, Administrative Support REPORT ON COUNCIL ACTIVITIES – John Wendland, City Councilor Councilor Wendland updated members on the following recent City Council activities: a Medal of Valor and Unit Citation award ceremony for City firefighters, first responders, and LO-COM operators was held in May; the items to be included in the 2022 City Hall Time Capsule were finalized; HB 2001 planning engagement has concluded; a self-evaluation of the Americans with Disabilities Act (ADA) was performed, with an adherence plan to follow; a $5.5 million pavement rehabilitation contract was approved, with work to commence this summer; and there will be interviews for the Boards’ and Commissions’ vacancies held in June. Vice Chair Arthur thanked Councilor Wendland for this report; stating that he appreciated the City Council's work on HB 2001, including addressing the definition of "demolition." Councilor Wendland elaborated that implementing the definition of “demolition” would come in 3 phases. MINUTES May 16, 2022 Minutes - No corrections were noted. Commissioner Smith moved to approve the Minutes for May 16, 2022, as submitted. Seconded by Commissioner Silen and passed 4:0, with 2 abstentions. FINDINGS LU 22-0011: The applicant proposes to reconstruct Rivergrove Elementary School, requiring approval of the following: • A Development Review Permit for the new buildings; • A Conditional Use Permit modification to increase the size of the school building from approximately 67,600 sq. ft. to 84,000 sq. ft. and to increase the capacity of the school from 575 students to 600 students; Development Review Commission Minutes June 6, 2022 Page 2 of 7 • A request for a Major Variance to LOC 50.06.001.5.g.ii.(1), requiring buildings to have a public entrance within 30 feet of a public roadway; and • Removal of 17 trees to accommodate the project. (Additional trees will be removed under a separate Invasive tree removal permit). This site is located at 5850 McEwan Road (21E0419BA00300). The Staff Coordinator is Ellen Davis, Associate Planner. Evan Boone, Deputy City Attorney, reported that staff received notice from the Rosewood Neighborhood Association, challenging “bias” on the part of one of the Commissioners. He stated that the process would be to hear the allegation to that bias, with the Commissioner responding, and then followed by the deliberation and vote, adding that it would be the decision of the individual Commissioner to vote or not. Peter Klaebe, Rosewood Neighborhood Association (RNA) Chair, stated that he was disappointed by the previous Development Review Commission (DRC) hearing in that he felt there were pre- judgements made by all Commissioners, citing there being no deliberation on any of the issues he raised nor on any of the 35 comments submitted by members of the public. He then cited the comment made by Commissioner Berardi following the Applicant's testimony (the Lake Oswego School District), "It was a pity that the tree in question could not be saved or used to make a park bench." Mr. Klaebe opined that the timing of the statement showed that Commissioner Berardi had already made up his mind and that Commissioner Berardi should abstain from voting because he thought the tree would go before hearing all of the testimony. Commissioner Berardi responded that he did not use the word "pity," rather, he stated that he made a comment about mediation (with the Homeowners Association about possible use). He indicated that he would abstain from the vote anyway. Mr. Boone instructed Chair Shearer that members may proceed with deliberation on the final Findings and vote. Commissioner Smith asked if the allegation of bias occurred after declarations (there being no challenges) and deliberation. Mr. Boone affirmed, explaining that the allegation was that the evidence of the bias arose after the declaration time, following the completion of the Applicant's testimony. Commissioner Smith then inquired if that left enough members to vote and pass the motion to approve (with Commissioner Berardi's abstention). Mr. Boone replied that the requirement called for a majority of those present and eligible voting to approve. Commissioner Smith moved to approve the Written Findings, Conclusion, and Order of LU 22- 0011. Seconded by Commissioner Poinsette and passed 3:0, with 3 abstentions. LU 22-0003: A request for Development Review Permit for three new mixed-use (office and residential) buildings in the West Lake Grove Design District and removal of three trees. This site is located at 16524/16556 Boones Ferry Road (21E07DD02300, 21E07DD02500). The Staff Coordinator is Evan Fransted, Senior Planner. Commissioner Smith moved to approve the Written Findings, Conclusion, and Order of LU 22- 0003. Seconded by Commissioner Berardi and passed 4:0, with 2 abstentions. Development Review Commission Minutes June 6, 2022 Page 3 of 7 PUBLIC HEARING AP 22 -02 [499-22-000303-TREE]: A request for hearing appealing staff’s tentative decision approving Type II tree application 499-22-000303-TREE to remove a 15” Norway spruce and a 50” Douglas-fir for the construction of a new single-family dwelling on the site. This site is located at 19175 Pilkington Road (21E19BA02900). The Staff Coordinator is Daphne Cissell, Associate Planner. Mr. Boone gave an overview of the public hearing process, outlined the applicable criteria and procedures, and gave instructions for any additional verbal testimony given. Mr. Boone asked DRC members to declare any ex parte contacts (including site visits), biases, or financial conflicts. All DRC members present declared they have no ex parte contacts, conflicts of interest, and no bias. There were no challenges to the Commissioners’ rights to consider the application. Staff Report Daphne Cissell, Associate Planner, added Exhibit G-209 into the record prior to presenting the staff report. The application is for the removal of 2 trees. Tree #24 is a 15" Norway spruce on the southern property line and Tree #26 is a 51" Douglas fir that straddles the east property line with Pilkington Road. Both trees must meet all Type II removal criteria, but all comments received were regarding the 51" Douglas fir, so this will be the tree focused on during her presentation. LOC 55.02.080(1), LOC 55.02.080(2), and LOC 55.02.080(3) definitions were shown during the slide presentation, with staff finding that all criteria are met. Staff found Tree #26 to be significant to the neighborhood due to size and it being a street tree. As such, an exception to Criterion 3 is required. Pilkington Road is under the jurisdiction of Clackamas County and the removal is required to meet the County's sight distance requirements for the driveway (having adequate Intersection Sight Distance (ISD)). Pilkington Road is classified as a 2-lane collector with a speed limit of 30 mph, requiring 335' ISD to the north of the driveway, based on a 14.5' setback from the traveled way. Sight distance from the proposed driveway was verified in the field by Lake Oswego engineering staff, who found that Tree #26 limits sight distance to 90'. As such, Clackamas County is requiring that Tree #26 be removed to meet sight distance requirements. The City traffic engineer reviewed whether reasonable alternatives exist to retain the tree and comply with sight distance requirements: reducing the setback from the traveled way (reduction from 14.5' to 12' increases the sight distance to 160', still well below the requirement of 335'), or shifting the proposed driveway south (reduction to 12' with relocation further to the south only increases the sight distance to 245', still below the required 335'). Staff finds that there are no reasonable alternatives to removal and recommends approval of the Type II tree removal application, subject to the following conditions of approval (COAs): 1. The stump of Tree #26 shall be removed by stump grinding, and shall not be extracted completely from the ground to protect the root system of the adjacent redwood; and 2. Prior to the final building inspection for the new dwelling, the Applicant/Owner shall plant three native species mitigation trees. Development Review Commission Minutes June 6, 2022 Page 4 of 7 Questions of Staff Chair Shearer asked if any part of Tree #26 was located in Lake Oswego, or whether that made a difference. Jessica Numanoglu, Planning Manager, replied that the Applicant provided a survey as part of the partition application, which showed that the tree straddled the property line, putting it in 2 different jurisdictions (the City of Lake Oswego and the City of Rivergrove). She then noted that staff advised the Applicant that if a tree removal permit was also required by Rivergrove, they would need to obtain a permit from them as well. Commissioner Berardi inquired about the reasoning for the Clackamas County code requirement being cited. Ms. Numanoglu stated that the tree was on the boundary of several jurisdictions, with the roadway (Pilkington Road) being under the jurisdiction of Clackamas County. She explained that as part of a lot partition, an owner was required to comply with street standards and mitigate the impacts of the additional lot (e.g., constructing a sidewalk, concrete pathway, or right-of-way (ROW) dedication), and the County street standards and mitigation requirements applied in this case even though the lot is located in Lake Oswego. Chair Shearer asked if Lake Oswego's sightline standards differed from the County's. Ms. Numanoglu affirmed that there were some differences, and in this case, the County's standards are what applies. Mr. Boone added that the partition determined that the County access standards applied, as a COA, stating that the question that night was whether or not the removal of the tree was necessary for development purposes. He informed members that the decision on partition of the site was made and not appealed, and that the decision on the partition answered the question about which development standard applied. Vice Chair Arthur inquired if members may look at whether the Applicant caused or limited the alternatives that were reasonable, if that was what the evidence showed. Mr. Boone replied that it sounded as if Vice Chair Arthur was asking about a Major Variance, which was not being requested that evening. He noted that if DRC found that the Applicant precluded the finding of reasonable alternatives, then that could be considered as a reasonable interpretation. Vice Chair then asked if the 2-parcel Minor Partition had been completed. Ms. Numanoglu relayed that it had been approved, and that it was in the stage of submitting the final plat and complying with the COAs (one of which was obtaining the Type II tree removal permit). She noted that during the initial application, the Applicant did not request the removal of Tree 26, nor did the City wish it to be removed; however, during application review, Tree #26 was found to limit sight distance. Mr. Boone answered that the Applicant had control over submitting the final plat, to Vice Chair Arthur's last question. Chair Shearer requested confirmation that if the tree permit were approved, the plat could be recorded. Ms. Numanoglu relayed that a number of COAs required completion first, with the tree permit approval being one of them. Recording the plat was not contingent on what the City of Rivergrove required. Mr. Boone explained that tree removal permits were obtained so an individual would not be committing a violation (causing the need for a subsequent enforcement action) when a tree was removed, adding that it would be up to the Applicant to obtain all requisite approvals prior to cutting down the tree (e.g., one permit obtained from Lake Oswego and one permit from Rivergrove). Applicant Testimony Kari Kuboyama, Civil Engineer with WDY, Inc. and Applicant’s Representative, explained that because access to the property was on Pilkington Road (a Clackamas County urban collector road), they had to follow County access standards. She relayed that there was vehicle traffic on the roadway and bicycle and pedestrian traffic on the shoulder, as there were no sidewalks in the Development Review Commission Minutes June 6, 2022 Page 5 of 7 area. The proposed driveway was in the approximate area of the current driveway, with line-of- sight (LOS) measured 14.5' back from the fog line. There would still be LOS issues if the driveway were moved either further north or further south. She noted that the County imposed a clear LOS distance of 290' on this project. She shared visuals that showed the LOS at 8.5' from the fog line, which put the car in the shoulder area and went against typical policy. Questions of Applicant Commissioner Silen asked for an explanation of the difference between the 290' sight distance she mentioned versus the 235' sight distance that staff mentioned. Ms. Kuboyama stated that they were following Clackamas County's rules for this project, which required 290' sight distance when looking north and 330' sight distance when looking south. Vice Chair Arthur requested elaboration regarding the second tree mentioned if the driveway placement were moved further north. Ms. Kuboyama replied that she thought that the second tree was larger (at 60") and would cause the same issues when looking both to the north and to the south. Vice Chair Arthur then asked if a sight distance analysis was performed for the larger tree. Ms. Kuboyama affirmed that a less intensive analysis was completed for the larger tree. Public Testimony In Opposition Peter Klaebe, Rosewood Neighborhood Association Chair, 5438 Tree Street, Lake Oswego, OR 97035, asked Mr. Boone whether the plat could be recorded if the tree removal permit was not approved. Mr. Boone replied that issuance of the tree removal permit was a COA, so the plat could not be recorded. Chair Shearer asked Mr. Klaebe if he was testifying on his own behalf or on behalf of the RNA. Mr. Klaebe indicated that his testimony was on the RNA's behalf. Mr. Klaebe raised the following 4 points during his testimony: 1. AP 17-05 cited to affirm their agreement that Tree #26 was significant due to its size; 2. The RNA disagreed with staff's conclusion that Tree #26 did not provide wind protection for the 60" Giant Sequoia (next in line to the north), noting that most high winds were directed from the south; 3. F-006, p1 cited (Clackamas County's Roadway Standards Section 240.2.c), which stated that the standard applied to "new accesses"; countering that this was an existing driveway for an existing house that was being demolished and rebuilt; and 4. The RNA did not believe that the ISD requirements applied because of the finding (on p9 of the staff report) that speeds lower than 25 mph would meet the ISD requirements (lowering the speed limit to 25 mph between Childs Road and McEwen Road on Pilkington Road was recommended by some members of the RNA). Jennifer Davies, 18641 SW Benfield Avenue, Lake Oswego, OR 97035, informed members that she lived no more than 1/4 mile from Tree #26. She opined that Clackamas County's Roadway Standards Section 240.2.c did not apply in this case because the proposed new driveway was in the exact same place, so was not a "new access." She acknowledged that 240.2.c stated that the standard "should be" required for all existing accesses but was not required in this location. She agreed that the tree was significant due to size and that it was a windscreen. She then opined that it was not reasonable to remove the tree because it was not required. Applicant Rebuttal Ms. Kuboyama indicated that she had no rebuttal response. Development Review Commission Minutes June 6, 2022 Page 6 of 7 Deliberations Mr. Boone asked if the Applicant wished to submit final written argument. The Applicant replied in the negative. Mr. Boone instructed Chair Shearer to proceed to deliberations. Chair Shearer asked Mr. Boone if the Applicant could still build the house if they did not remove the tree. Mr. Boone replied that in order for the house to be built, the tree would have to be removed because the Applicant could not build two houses on one lot, reminding members that this was part of a partition application which had a COA that the sight distance be addressed by the tree removal (per Clackamas County standards). Commissioner Smith requested confirmation that the County would be in control of reducing the speed limit on Pilkington Road from 35 mph to 25 mph. Mr. Boone affirmed that the DRC did not have authority to set roadway speeds, particularly on County roads. He added that the City's criteria for setting roadway speeds was not dependent on one property needing access. Commissioner Silen asked whether it would be reasonable to get Clackamas County's opinion regarding the "existing access" theory, mentioned during the oppositional testimony, prior to the DRC making their decision. Mr. Boone replied that, from a lawyer's position, the applicability of the County standard was an issue before that application (which was reviewed, had public notice issued with time for response, had COAs imposed, and had a final decision). He opined that this appeal was an attempt to collaterally attack that decision, which would be outside the scope of this application as the Tree Code was not used to litigate the partition standards. Vice Chair Arthur inquired whether members could approve the application if the "no reasonable alternative" exemption was found not to be met. Mr. Boone answered that if members found that the Applicant had not carried the burden of showing that reasonable alternatives were considered, then that would not be an exception to Criterion 3, and if Criterion 3 were found applicable due to the size of the tree, then members would not approve the application as Criterion 3 would not have been met. Vice Chair Arthur pointed to page 9 of the staff report, where it found that alternatives had been considered and no reasonable alternative existed, asking for confirmation regarding the tree statute's wording. Mr. Boone explained that the statement on page 9 was in italics, so was the wording taking from the statute and that staff concurred that no reasonable alternatives were found. Chair Shearer opened the floor for deliberation discussions. Vice Chair Arthur shared that his impression was that Tree #26 was requested for removal because of the approved partition of the lot (in the Applicant's control), and that he could consider there being no reasonable alternative (also in the Applicant's control). Mr. Boone clarified that it was "...no reasonable alternative exists to allow the property to be used as permitted in the zone..." and one of the uses permitted in the zone was the ability to have the property partitioned. Mr. Boone then indicated that they did not say that a person had to reduce their density for what was permitted in the zone, and that it appeared, in his opinion, that Vice Chair Arthur was relitigating the access standard, as it applied to the partition application. Commissioner Berardi stated that he did not see evidence in the presentation that options were eliminated, as all that was shown was a picture from one side of the street. He then opined that it seemed they were in the middle of an action having multiple government agencies. Commissioner Poinsette pointed to his focus was on the concern over the ability to see oncoming traffic, and that he found nothing adverse to this point. Development Review Commission Minutes June 6, 2022 Page 7 of 7 Commissioner Smith relayed that his focus was on Tree #26 blocking the sightline when exiting the property, per the partition application COA. He noted that from his perspective, he would love to keep the tree; however, if the tree were kept, there could be injury to other drivers, bicyclists, or pedestrians. He acknowledged that if the Applicant had the right to partition, the tree had to come down. Chair Shearer stated that he agreed with Commissioner Smith's assessment and with staff's conclusion that the tree should be allowed to be cut, per the County's sightline standards. He indicated that his own preference would be to save the tree. He opined that the Applicant showed that there would be more problems if the driveway were moved further to the north (possibly requiring the removal of 2 trees), also believing the City engineer's assessment. Commissioner Smith asked Mr. Boone for clarification on how the motion should be stated, as they were here on an appeal where the City approved a tentative tree removal permit. Mr. Boone replied that the best way to look at this was whether to grant or deny the issuance of the tree removal permit, as getting into the appeal nature fell into double-negatives, adding that the tree code was imprecise to the nature of the evidentiary appeal hearing. Commissioner Smith moved to approve AP 22-02 [499-22-00303-TREE], based on the sightline requirements. Seconded by Commissioner Poinsette and passed 4:2. Mr. Boone instructed staff to return the Written Findings, Conclusion, and Order on Monday, June 20, 2022, at 7:00 PM. SCHEDULE REVIEW AND MANAGEMENT UPDATE Ms. Numanoglu, updated DRC members on upcoming meetings: June 20, 2022 has the findings on that night’s decision and 3 other items: a Major Variance request, and 2 tree removal appeals on separate, adjacent lots owned by the same applicant. July 6, 2022 (Wednesday) has the Rassekh Park project. July 18, 2022 has the Golf Course project. August 1, 2022 has the Aquatic Center project. Members discussed the tree removal applications scheduled for hearings on June 20, 2022. Commissioner Smith moved to hear both presentations by the Planner and the Applicant, to take testimony from the public on both lots with a 5-minute time limit per individual and a 10-minute time limit for representatives of organizations, to allow a 20-minute presentation for the Applicant and 5-minute rebuttal, and, finally, to enter deliberations, with each lot receiving a separate decision, as recommended by staff. Seconded by Vice Chair Arthur and passed 6:0. ADJOURNMENT Chair Shearer adjourned the meeting at 8:31 PM. Respectfully submitted, /s/ Kat Kluge, Administrative Support