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HomeMy WebLinkAboutApproved Minutes - 2025-02-19 PM 0 41/4 J CITY OF LAKE OSWEGO ~ = Development Review Commission Minutes U wooer C February 19, 2025 c;IQEGo l The Commissioners convened at 7:00 PM. Members Present: Chair Larry Linstrom, Vice Chair Helen Leek, John Dewes, Russ O'Connor, Yuko Mino, and Dwight Sangrey Members Absent: Kristen Bates Staff Present: Johanna Hastay, Planning Manager; Evan Boone, Deputy City Attorney; Ellen Davis, Senior Planner; Erica Rooney, Public Works Director& City Engineer; Jamie Roberts, Engineering Tech; and Kat Kluge, Administrative Assistant Chair Linstrom asked DRC members if there were any proposed changes to the Agenda. There were no replies. MINUTES February 3, 2025: There were no revisions noted. Commissioner Sangrey moved to approve the Minutes of February 3, 2025. Seconded by Vice Chair Leek and passed 6:0. PUBLIC HEARINGS LU 24-0036/AP 25-01: A request for a modification of LU 23-0011, an RP District wetland re- delineation, and further adjustments to the RP District's 50-foot Protected Riparian Area (PRA). This site is located at 13580 Goodall Rd (Tax Reference: 21E04BC00300). The Staff Coordinator is Ellen Davis, AICP, Senior Planner. Evan Boone, Deputy City Attorney, noted that persons in the audience were City staff and members of the Applicant's team (verbal affirmation received) and that no one had signed up to testify via Zoom. He then gave an overview of the public hearing process, outlined the applicable criteria and procedures, and gave instructions for any 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 that they had not made a site visit (some noted that the were familiar with the site), and that they had no ex parte contacts, conflicts of Respect. Excel'en e. Trust. Servers 503-635-0290 380 A AVENUE PO BOX 369 LAKE OSWEGO, OR 97034 WWW.LAKEOSWEGO.CITY interest, and no bias. There were no challenges to the Commissioners' rights to consider the application. Staff Report Prior to presenting the staff report, Ellen Davis, Senior Planner, added Exhibit E-020 to the record. The site is located somewhat near Lake Oswego High School and is part of a series of partitions creating 9 lots total, with the focus for this application on Lots 7, 8, and 9. In 2022, the site was annexed into the City with a newly designated and mapped wetland. In 2023, application LU 23- 0011 was approved for a 3-lot minor partition, and the official delineation of and a PRA boundary adjustment to the Resource Protection (RP) District. Ms. Davis noted that she may also call the PRA boundary adjustment a "buffer averaging" or a "PRA reduction" (defined as the 1:1 ratio of removing the PRA from one area of the lot and adding to a different area of the lot, with a 1:3 or 1:5 ratio for mitigation plantings). Maps were shown from LU 23-0011, noting the original PRA boundary around the protected wetland and the PRA adjustment. Focusing on Lot 9, images were shown of the approved building permit for a new home (499-23- 003975-DWL). The approved permit shows the installation of two stormwater planters (one on the east side and one of the west side of the home), however, only the house has been built so far. For this lot, the Applicant has requested a map correction and a re-delineation. The Applicant's Natural Resource consultant found that the wetland boundary submitted by the Applicant in 2022 and 2023 contained a mistake. The new information was based on more accurate data collected during the early growing season. A representative of the Oregon Department of State Lands and the City's contracted Natural Resource Consultant both visited the site and observed the new test plots, concurring with the updated boundary. Staff approved this new boundary as a part of the current applicant, resulting in the buildable area being increased. The wetland area is classified as a Forested Class I wetland, requiring a 50' buffer around it. The new data found an isolated and unforested wetland, enabling staff to require only a 30' PRA. Ms. Davis informed members that the Applicant, with the process of re-delineation, wiped the slate clean of the past delineation and approved PRA adjustments, and that they are now starting fresh with this application. Ms. Davis highlighted the Code requirements for LOC 50.05.010.4.f(avoidance and minimization). With no changes in wetland and PRA boundary for Lots 7 and 8, staff applied the same arguments from LU 23-0011 as a basis for recommending approval. For Lot 9, more area was opened for development. The deck and pool plans south of the home are conceptual at this point and the Applicant has not yet met their burden of proof to show that alternative site plans were considered prior to requesting the new PRA adjustment. Staff notes that accessory structure standards only require a 10' side setback and the secondary stormwater planter can be placed flush against the building (leaving a 20' width for vehicular access to the pool. Additional plan options were shown; however, those plans still incorporated intrusions into the PRA with Exhibit E-020 (Option 4) coming the closest to avoidance and minimization. Arguments had been raised by the Applicant regarding owner preference (change in view from the deck or would ruin the Development Review Commission Minutes February 19, 2025 Page 2 of 9 house design), but these concerns are not in alignment with the City's code criteria or Oregon state law. Compatibility (should be allowed to develop in keeping with other homes in the area) was also suggested by the Applicant as an additional implied standard. This same argument was denied in a past decision made by the DRC in 2008; protection of the natural resource took precedent over all else. In conclusion, staff recommends the approval of the map correction/re-delineation and the PRA adjustments on Lots 7 and 8, with Conditions of Approval (COAs), but a denial of the PRA adjustments on Lot 9 unless the DRC found that the avoidance and minimization criteria are proven for Exhibit E-020, "Option 4." Questions of Staff Vice Chair Leek asked if there was a specific square-foot requirement for the mitigation plantings. Ms. Davis replied that the PRA adjustment is a 1:1 ratio. The mitigation requirements are based whether a wetland is forested (5:1 mitigation ratio) or not (3:1 mitigation ratio). Commissioner Dewes inquired whether the Applicant provided an answer for why they were not able to construct the east side stormwater facilities. Ms. Davis relayed that the Applicant had a concern with vehicular access to construct the pool, that they did not want the planters to be flush with the building, and that they wanted the planters to be lower in elevation than the finished floor elevation inside of the home (this was not a requirement per a report from the Engineering staff). Commissioner O'Connor requested affirmation that Option 4 was the most desirable and could be approved by staff. Ms. Davis stated that staff had been requesting that the Applicant provide evidence that showed that they first avoided and minimized impacts pursuant to the Code. Johanna Hastay, Planning Manager, added that the evidence had not been provided to explain why encroachment into the resource could not be avoided completely. Commissioner O'Connor then asked if there was an issue with the stormwater mitigation area (highlighted in purple). Erica Rooney, Public Works Director & City Engineer, replied that the area highlighted in purple was a separate facility than what was required for the area highlighted in green (the area in purple addressed water runoff from uphill off of the site), and that the question was whether the green area could be moved down to fill in the unhighlighted area which would be outside the resource. Vice Chair Leek asked if the purple area was an underground stormwater facility or an exposed planter. Ms. Rooney replied that this was a flowthrough spreader. Ms. Hastay clarified that the purple area was the impacted area within the PRA and that the blue area showed the flowthrough spreader. Vice Chair Leek then asked whether the size of the west-side planter could be mitigated by adding back the east-side planter. Ms. Rooney affirmed that there could be multiple planters on the lot, as long as the total treatment area square footage was the same, cumulatively. Chair Linstrom inquired whether the second planter was part of the original COAs of the building permit. Ms. Davis answered that they were not specifically required, however, they were part of the Applicant's original submitted plan, supported by a stormwater report specific to the site, and was approved with the building permit. Development Review Commission Minutes February 19, 2025 Page 3 of 9 Commissioner Sangrey requested confirmation that the primary issues with the 3 lots were the modification of the sensitive land's boundary and the overlapping of the blue and purple areas. Ms. Davis confirmed that the boundary was no longer contentious, and that the blue and purple areas for stormwater water management were the primary issue. Commissioner Sangrey then asked whether the facility to manage drainage could be placed anywhere on Lot 9, including adjacent to the house. Ms. Davis indicated that the flowthrough spreader needed to be on a contour line and was different than the LIDA planter (highlighted in green), which could be placed up against the house. Commissioner Sangrey inquired whether the interpretation of the law and the precedent set by the decision in LU 08-0028 indicated that homeowner preference was not a sufficient reason to make exception. Ms. Davis answered that this was the stance that staff had taken. Mr. Boone affirmed that this was also his opinion, as outlined in the DRC memo (text, context, legislative history, and rules of construction were considered), adding that discretionary standards could be addressed in variance requests. Mr. Boone agreed that the contentious area dealt with Lot 9. Applicant Testimony Ryan O'Brien, Owner of Planning & Land Design LLC and the owner's representative, stated that he would like to rebut a lot of what staff said; asking if that was included in his 20-minute time limit. Mr. Boone replied that Mr. O'Brien and his team had 20 minutes total for their presentation. Mr. O'Brien asked for the last slide to be shown again. He stated that the flow through spreader was a concrete pad about 2'-wide and 31'-long, with 5 slots for the water to spill over, and that this water came from a subdivision that was adjacent to the east side of their property. He opined that this was being required by the City and had nothing to do with their project; adding that he thought the City should be the ones to do this, even though it was a COA for the partition application. He explained the theory behind moving the stormwater planter uphill by one-foot (16% increase in the planter size), and the reason for using the spreader as the outfall for their planter. He then pointed to there being 4 sets of utilities in the area next to the house (sewer pump and pressurized sewer line, gas generator and gas lines, 2 electrical lines), which were taking up all of the area next to the house, so there was no way to move the planter over. He explained that they planned to install an infiltration planter rather than a concrete- bottom planter, as it was better for the environment. Mr. O'Brien then shared his PowerPoint presentation (found at Exhibit F-016); outlining the history of the property, the encroachment area (negative impact created), the issues with the LIDA planter elevation and overlap areas, the original approved PRA modifications, the setback standards and proposed mitigation plans, the site development percentage (38%), the wildlife corridor, the avoidance and minimization issues, the original and approved partition plans, the LIDA planter dimensions and installation plans, and the topographic surveys. Mr. Boone informed Chair Linstrom that the Applicant's time had expired and that it was up to him to decide to provide additional time or whether the Commissioners should begin their inquiry. Commissioner Sangrey indicated that he would like to hear more from the Applicant. The Applicant stated that he could finish his presentation in about 5 minutes. Development Review Commission Minutes February 19, 2025 Page 4 of 9 Mr. O'Brien continued with his presentation, covering the following: tree root encroachment into the east LIDA planter area, the wetland delineation change (no water found through test pit samples), the driveway elevations,the approved tree removal plan and intention to retain some of them, the architectural renderings,the 5:1 mitigation plan, the reconstruction needed to comply with the PRA, and the site plan options. He requested a continuation of this hearing to the next meeting, to survey the trees on the east side, if the DRC were to deny the application. Mr. Satterberg, with Satterberg Construction Corporation, requested to speak as the developer. Ms. Hastay replied that the Applicant's 20-minute time limit had been used and already extended another 10 minutes; offering them the option to continue the hearing to March 3, 2025. Mr. Satterberg objected to this option. Mr. Boone reminded Chair Linstrom that he was in charge of this meeting, that they had finished the Applicant's testimony, and that members could ask questions of the Applicant during the next step in the process. Chair Linstrom agreed that the Applicant had been given an additional 10 minutes. Bill Krasnogorov, with Red Hills Land and Design, LLC and the owner's home builder, indicated that he would also like a few moments to speak. Chair Linstrom asked if the 5-10 minutes for public testimony was taken by the Applicant's additional time. Mr. Boone replied that all 4 of the gentlemen sitting in the audience affirmed that they were part of the Applicant's team when asked at the start of the hearing, and that Chair Linstrom could decide to extend additional time to the Applicant, or they could choose to inquire of the Applicant. Mr. Satterberg again voiced objections, opining that the City was not willing to work with anyone on the project. Ms. Hastay relayed the explanation of the time allotted for the Applicant's testimony was made clear to Mr. O'Brien in the notice for public hearing, and also clarified for him in a conversation held with Ms. Davis and in a separate email; adding that she had noted that the 38-page PowerPoint presentation was extremely long and that she encouraged him to consider setting aside time for others to testify with him. Ms. Hastay suggested that the request to share more information would best be managed by encouraging the Applicant to continue the hearing until March 3, 2025, leaving the record open for the submission of additional written testimony and providing 20 minutes during the next hearing for additional oral testimony. Vice Chair Leek asked if members could ask questions of the Applicant at this point in the current hearing. Ms. Hastay affirmed that they could, but encouraged them to focus on questions asked for clarification about evidence presented. Questions of Applicant Chair Linstrom asked whether their intention was to never install the east-side LIDA planter (adding it to the plans in order to get the permit approved, as stated earlier). Mr. O'Brien replied that those installations were not required until prior to occupancy and that they were still not ready to build the LIDA planters (still needing to build the roads to extend to them first), as they were exploring options to build the pool. Commissioner Dewes requested confirmation for there being a general consensus that all parties were close to an agreement and that this would not deter the project from moving forward. Mr. O'Brien affirmed. Commissioner Dewes then pointed to the criteria covering the PRA adjustment; Development Review Commission Minutes February 19, 2025 Page 5 of 9 understanding that Mr. O'Brien said that the intention of the Code should be only for a high- quality wetland. Mr. O'Brien again affirmed. Commissioner Dewes countered that this was not what the Code or regulation said (meaning that members could not say that this was a horse pasture, so Code should not apply). Commissioner Dewes asked why the west-side LIDA planter could not be moved further south by the pool. Mr. O'Brien answered that there were two issues involved with that, firstly, they must have meet the RP District 10' construction setback because the walls would be over 30" in height. Ms. Hastay relayed that a stormwater facility may project up to 7' within the 10' construction setback, with flexibility of the retaining wall height. Commissioner O'Connor asked about the 1,800-square-feet of additional encroachment meeting the Applicant's needs for the lot. Mr. O'Brien acknowledged that this was the request. Ms. Hastay reminded members that the area to the south of the house was unencumbered at this time (the deck and pool have not yet been built). Mr. Krasnogorov spoke from the audience, saying that, as the site builder, some of the information that he had was important to share. Ms. Hastay reminded the audience that if someone were to testify, they needed to come to the table and introduce themselves, and then, again, the Chair could allow this as further testimony or the Applicant could continue this hearing. Commissioner O'Connor stated that they were only asking questions based on what had just been presented. Commissioner Sangrey relayed his understanding that the pool came in later in the process, as a desired element by the property owner; asking why the pool/deck complex could not be moved 5' further east. Unknown person stated that this elevation was uphill. Ms. Hastay again stated that the testimony from the audience was not fully being picked up by the microphones to be included as part of this public hearing, and that they must come up to the table to answer a direct question. Mr. O'Brien answered Commissioner Sangrey's original question by saying that moving the deck/pool 5' would give more area for the west-side LIDA planter, however, there was a 12' retaining wall that would be impacted and that the level of the pool needed to stay flush with the house elevation (moving it would also mean that they could not use the infiltration planter). Commissioner Sangrey noted that his dilemma stemmed from the comments that the Applicant could do something different when the Code required avoidance. Ms. Hastay noted that members should not feel compelled to design a stormwater planter at the dais. Mr. Krasnogorov requested a few minutes to speak. Granted by Chair Linstrom. Applicant Testimony, Continued Mr. Krasnogorov stated that he wished to speak (the Chair granted him 3 minutes) because he saw a lot of miscommunication here, and on behalf of the Planning staff there was a lot of dishonesty, in that they were changing the criteria on the fly, especially when determining what was possible or impossible, given the construction limits they had. He pointed to there being a lot of slope on the site and moving the planters higher would require a taller retaining wall (there was an 8'-high wall onsite now and building a 12'-tall retaining wall would be impossible on this residential site). He then opined that they were not taking away the wetlands or impacting them but were applying the change in a 1:1 setting. He stated that staff had all of their documentation and knew why Option #1 was submitted and originally approved. He indicated that placing the planter (only rated for a 25-year storm) against the building, with living space down below, Development Review Commission Minutes February 19, 2025 Page 6 of 9 impacts the safety of the people living there. He indicated that moving the pool 5' to the east gained no benefit, as they would need to carve into a hillside. Relaying his past experiences, he said that he was a refugee from a country that had an oppressive and abusive government, and that he was shocked to see the similarity here (no logical reason to go through this when everything was spelled out in the plans and questions could be answered, if asked). Chair Linstrom noted that was the end of Mr. Krasnogorov's time and reiterated that everyone should refrain from expressing personal bias and opinions about the staff, who were just doing their diligence per the Code in front of them. Mr. Satterberg then came forward and was granted 3 minutes to testify by Chair Linstrom. Mr. Satterberg stated that the issue they had to deal with was due to the downward slope of the land from the east to the west, and that placing the LIDA planter on the east side would put it above the elevation of the house. He offered a suggestion of making the east side of the house a PRA, which would open the west side of the house to install the LIDA detention without any issues. He then stated that staff did not find this suggestion acceptable. He opined that the reason the wetland existed was because the City's water facility had been leaking into this property for over 30 years. He informed members that he would be filing a lawsuit against the City the following day because he felt that staff did not offer respect and that they said they were too busy to help, when asked to do so. Ms. Hastay clarified that the stormwater coming from the northeast was not from a publicly constructed stormwater facility, rather it was runoff from a private subdivision (approved through the City). Questions of Staff Commissioner Leek acknowledged that, given the Urban Growth Boundary, all of the good land was gone and that this was a tough site; asking if the City could be a little more accommodating in this while still following the rules. Ms. Hastay replied that they had consistently told the Applicant that they would be happy to approve the PRA modification that first showed that they had explored all possibilities that would avoid impacts to the resource (clear engineer- based/planning-based evidence); adding that, with the requested re-delineation, there was now more unencumbered land, given the reduction in the size of the resource. She noted that this information had been shared with the Applicant multiple times (with no options showing zero impacts provided); reminding members that the use of the pool and deck around the pool as a constraint was an artificial constraint because that permit had not been submitted or approved for construction. Ms. Hastay stated that the RP District was the wetland and the PRA, and that it was classified as a Class I Wetland, regardless of the fact that it used to be a horse pasture. She then relayed, again, that they were starting over because the Applicant requested the re- delineation of the site (whatever was previously approved was now off of the table). She informed members that Planning staff had been trying to work with the Applicant, with the goal of finding a way to approve the application. Ms. Rooney indicated that she would like to address the fact that they had approved a stormwater report/plan and building permit plan in February 2024 based on a signed and stamped registered engineer's approval (prior to the re-delineation and built with concrete- bottomed planters), and that everything shown this night had not been redesigned by a qualified stormwater engineer. She noted that they had only received one or two emails that talked about Development Review Commission Minutes February 19, 2025 Page 7 of 9 opinions, but they did not talk about new information regarding what they were proposing; relaying that she heard mention of a proposal for something that has infiltration, which was a different kind of design and an updated stormwater report would be needed to show that those types of LIDA planters would work in these areas, whether in the PRA zone or not. Ms. Rooney noted that there were no reasons the Applicant could not install a lined planter on the east side of the house, as it was originally approved in the permit, except for preference. Mr. O'Brien asked to respond, stating that they had already done the redesign twice and would now need to do it a third time to include the infiltration calculations, and that their Civil Engineer was present and could answer those questions. Ms. Rooney respectfully requested that this not be designed on the dais. Chair Linstrom indicated that he agreed with Ms. Rooney. Mr. O'Brien then asked for a continuation of this hearing, as they were exploring other options, with their Civil Engineer, to reduce the size of the planters by adding a treatment facility vault. Commissioners Sangrey and Vice Chair Leek suggested that this hearing be continued to March 3, 2025, to give City staff and the Applicant's team time to develop a new plan; encouraging the Applicant to not treat the pool and deck as sacrosanct, because they should be able to solve this engineering problem. Mr. Boone formally asked the Applicant if they wished to continue the hearing and waive the 120- day time limit. Mr. O'Brien affirmed that they were requesting a continuance and approved the extension of the 120-day limit. Vice Chair Leek moved to continue LU 24-0036 /AP 25-01. Seconded by Commissioner O'Connor and passed 6:0. SCHEDULE REVIEW AND MANAGEMENT UPDATE Ms. Hastay updated DRC members on upcoming meetings: March 3, 2025 has the Continuation of this hearing. March 17, 2025 has the possible Findings from the March 3, 2025 meeting and an appeal on a tree removal application for another cottage cluster development. April 7, 2025 has the possible Findings from the March 17, 2025 meeting and a presentation on Historic Preservation Standards from an outside expert. Ms. Hastay informed members that the City Council heard the appeal hearings for the 2 tree removal permits at 233 E Ave. and tentatively approved AP 24-04 with further review of AP 24-05 requested. Commissioner Dewes requested a moment to put on the record, his contradiction with the testimony heard from members of the Applicant's team. He stated that he believed that the entire City staff worked with the highest integrity and professionalism; believing that he spoke for all members of the DRC regarding this. Development Review Commission Minutes February 19, 2025 Page 8 of 9 ADJOURNMENT Chair Linstrom thanked everyone for their patience and input during the meeting that night. He then adjourned the meeting at 8:55 PM. Respectfully submitted, /s/ Kat Kluge, Administrative Support Development Review Commission Minutes February 19, 2025 Page 9 of 9