HomeMy WebLinkAboutApproved Minutes - 2001-05-22 PM 0 CITY COUNCIL MEETING MINUTES
'14 May 22, 2001
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Mayor Judie Hammerstad called the special City Council meeting to order at 6:03 p.m. on
May 22, 2001, in the City Council Chambers.
Present: Mayor Hammerstad, Councilors McPeak, Hoffman, Schoen(left 6:45 p.m.),
Turchi and Graham. Councilor Rohde was excused.
Staff Present: Doug Schmitz, City Manager; Evan Boone, Deputy City Attorney; Robyn
Christie, City Recorder; Mike Wheeler, Associate Planner
3. PUBLIC HEARINGS
3.1 An appeal of the Development Review Commission's approval of a 23-lot residential
planned development, with conditions at 1875 Atherton Drive (LU 00-0028/AP 01-04)
Evan Boone, Deputy City Attorney, reviewed the criteria and procedures for a quasi-judicial
land use hearing, including public testimony time limits. He asked if the Council had any ex
parte contacts, including any site visits. Councilor Graham declared that she went up to the site
about a month and a half ago, turned around and came back.
Mr. Boone asked if the Council had any bias or conflicts of interest. There were none. There
were no challenges from the audience.
STAFF REPORT
Mr. Boone noted that the points of this appeal related to an open space requirement to offset a
reduced setback for yards, to the developer's desire to maintain flexibility in siting a southerly
stub street(and the effect of its final placement), and to pathways, walkways and sidewalks. He
mentioned in particular the sidewalk to be located along the north side of Meadowlark Lane and
the walkways from the cul-de-sac to the Lane and then to the Cook Park pathway.
Mr. Boone reported that the appellant and staff met regarding these issues. He informed the
Council that they agreed to modifications under the criteria for a planned development
subdivision (LOC 48.18.476). He advised the Council that the Development Review
Commission members,upon learning of the proposed modifications today, had no objections to
them. He stated that staff would incorporate the exact wording needed to resolve the appeal
issues into the final findings, conclusions and order.
Mr. Boone reviewed the proposed modifications to the conditions of approval, as recommended
by both staff and the appellant:
• The developer would provide 3,000 additional square feet in open space in exchange for the
City allowing the final location of the stub street to float(with no additional open space
required once it was in its final location).
• The Lot 17 side yard set back would be 15 feet.
• The developer would add a walkway between Lots 19, 20 and 21 (a five foot surface within a
ten foot easement), extending from the cul-de-sac to Meadowlark Lane.
• The developer would extend the Meadowlark Lane north sidewalk to the walkway with
termination at the walkway.
• The developer would landscape the easement area to the City's satisfaction.
• The developer would provide a pathway in the open space west of Lot 1, connecting the
pathway in Tract"A" to the Meadowlark Lane sidewalk(six foot surface).
City Council Minutes Page 1 of 8
May 22, 2001
• The developer would add a condition to the CC&Rs that the homeowners association would
maintain the pathways and walkways in the subdivision to the City's satisfaction.
• The public nature of the sidewalks and walkways would be expressly noted to clarify that the
public had a right to use them.
Mike Wheeler,Associate Planner,mentioned that the modifications Mr. Boone discussed came
about after the preparation of the staff report, and resulted from the staff's efforts to resolve the
appeal issues. He reviewed the three major appeal issues and their subsets as discussed in the
May 10, 2001, staff report. He mentioned the DRC's requirement of no net loss of the open
space that the applicant alleged he was providing(26.1% of the gross site area) in allowing the
stub street providing access to Mr. Stevens' abutting property to be moved to the west, which the
applicant wanted relaxed..
Mr. Wheeler stated that the DRC agreed with the staff recommendation to allow reduced side
yard setbacks for fewer lots than the 22 out of 23 lots proposed by the applicant. He mentioned
the appellant's contention that the requirement for a sidewalk along Lots 17, 18 and 19 on the
north side of Meadowlark Lane was in error and not supported by the applicable criteria.
Mr. Wheeler reviewed the Council's options to affirm, modify, reverse or remand the DRC
decision. He indicated that the items mentioned by Mr. Boone resulted in a balancing between
the requirements for public infrastructure, which impacted the amount of open space, and the
quality of the open space. He described the additional 3,000 square feet in open space as a
component working towards the objectives of providing recreational opportunities, pedestrian
access and quality open space. He said that the walkway segments and connections provided the
pedestrian connectivity opportunities envisioned by the applicant in his project design.
Mr.Wheeler noted that the appellant has agreed to all other conditions imposed by the DRC.
APPELLANT
• John Shonkwiler, 13425 SW 72"Avenue, Tigard, attorney representing the appellant,
Mr. Shonkwiler asked to put into the record the document outlining the seven items of the
informal agreement between the staff and the appellant with respect to the proposed
modifications. Mayor Hammerstad noted that the document was Exhibit 1 for this hearing.
Mr. Shonkwiler stated that, while his client fully supported the agreement, he did not waive any
of his arguments on the appeal, should the Council not accept the agreement.
Mr. Shonkwiler characterized this as a unique situation in which all sides have re-thought the
plan and devised a design that gave everyone what they wanted: the DRC got its open space, the
staff got the pathway connections and setbacks, and the applicant got fair conditions imposed on
the property.
Mr. Shonkwiler discussed the reasoning behind the proposed modifications. He mentioned
their concern that the tract of open space the DRC had required adjacent to Tract A (because of
the stub street), which was outside of the urban growth boundary, would become a dead area by
the time the remainder of the area developed. He held that the problem was how did it get
absorbed and who had responsibility to landscape it at that time.
Mr. Shonkwiler pointed out that the developer had no finality on the issue of the amount of
open space under the DRC requirement. He argued that 3,000 square feet of open space was a
good solution, giving the developer finality and the City the extra open space.
Mr. Shonkwiler discussed the setbacks on Lot 17. He argued that, although placing the houses
on Lots 13 and 14 at a 15-foot setback might result in the ridgeline of the houses obstructing the
view of the houses further up the hill, the steepness of the hill at Lot 17 allowed a 15-foot setback
for the house without obscuring the view from other houses. He explained that the problem was
that the lot was not rectangular; the narrowing of the lot made it very difficult to design an
City Council Minutes Page 2 of 8
May 22, 2001
aesthetically pleasing arrangement of the garage and the house, if they had to use a setback
greater than 15 feet.
Mr. Shonkwiler commented that the walkways made good sense; it had been an oversight on
the applicant's part not to include them. He pointed out where they would have to locate a
staircase system on the pathways,which would not allow handicapped access.
Mr. Shonkwiler explained that the applicant had originally intended to restrict the access of Lots
17 and 19 in the CC&Rs. Those lots would access through Meadowlark Court and have no
access to Meadowlark Lane. He noted that with only two to three lots developing between these
houses and Cook's Park to the west, the developer felt that they did not need a sidewalk at that
location. He discussed how the steepness of the lot created a physical and a legal problem of
requiring a cut through the neighboring property in order to install the sidewalk; the developer
had no rights over the neighboring property.
COUNCIL QUESTIONS
At Councilor McPeak's request, Mr. Shonkwiler indicated on the map the location of the
additional 3,000 square feet of open space.
Mr. Shonkwiler explained to Councilor Hoffman that the stub street off Atherton Drive
involved an agreement between all parties that the developer would plan a 12-foot access road
off the Stevens property(but not build it); if the stub street moved, then the open space moved
also. Councilor Hoffman pointed out that the homeowner on Lot 6 might complain when and if
the stub street moved 15 to 20 feet closer to his lot. Mr. Shonkwiler suggested putting the
condition in the CC&Rs.
Mr. Shonkwiler confirmed to Mayor Hammerstad that the road would be a temporary road for
the private use of the Stevens until the time of development.
Mr. Shonkwiler indicated to Councilor Graham that Mr. Powell looked into the ADA issue of
the staircases required for the walkways. He explained that the ADA regulations provided an
exception if there was a terrain problem (which they had) and if they provided access through an
alternate method (which they did). He indicated on the map the alternate access.
Mr. Shonkwiler indicated to Mayor Hammerstad that the house to the west of Lot 17 was over
40 feet back.
Mayor Hammerstad recalled a situation in which the homeowners were taking care of a
property that they thought they owned, only to have it go into tax foreclosure because the
developer owned it, and not the homeowners. She asked if the developer would deed the
property and the open space to the homeowners.
Mr. Shonkwiler explained that they would dedicate the open spaces on Tracts A and D to the
Three Rivers Conservancy but the homeowners association would maintain them. He confirmed
to Mr. Boone that the developer would provide a dedicated easement for public use of the actual
pathway itself. He indicated that the homeowners would both own and maintain the open space
and public access pathway on Tract C.
Mr. Wheeler clarified to Mayor Hammerstad that they intended the detention pond on Tract C
to function as a shallow water quality facility. He indicated that by not requiring plantings
around it, they made the small space surrounding it available for open recreation. He emphasized
that the grade of the side slopes to the southeast and east side were so gentle that it presented no
safety concerns of children falling into the pond.
Councilor Graham referenced a letter from the geology department recommending that
construction occur only during the dry season, given the condition of the soils. She asked for the
proposed construction dates. Mr. Shonkwiler said that the developer intended to construct this
project this summer during the dry season. He clarified that if delays should cause them to go
City Council Minutes Page 3 of 8
May 22, 2001
into the wet season, staff would set the engineering restrictions on their work with respect to
handling erosion.
Mr. Wheeler noted Condition B-4 on page 12, which addressed the wet weather construction
concerns.
PUBLIC TESTIMONY
Mayor Hammerstad opened the hearing to public testimony.
PROPONENTS: None
OPPONENTS: None
NEUTRAL
• Herbert Arthur Stevens, PO Box 257, Husum,Washington, Stevens Family Enterprises
Mr. Stevens stated that he and his family owned the 50 acres south of the subject property, for
which the developer was providing the stub street access. He held that, based on the information
presented tonight, he believed that he should have been notified of the meeting held today
between staff and the appellant. He indicated that he had not requested his attorney to be present
at this hearing, as he had not realized that the issue would revolve around the location of the stub
street.
Mr. Stevens said that his family was in full accord with the public pathway; they had suggested
it and they were giving up their easement rights in order to procure it. He indicated that they did
not object to the development of the neighboring property per se, as long as they had a way to get
back onto their own property legally and consistently. He said that staff told him originally that
they could not assure him of that; he had to work the process, which was what they were doing.
Mr. Stevens asked if they could fix the floating easement without further City involvement, once
this hearing was concluded. He indicated that he had not proposed a floating easement. He
discussed his preference to fix the easement. He referenced a letter that his attorney wrote to
Dennis Derby's attorney two weeks ago requesting a fixed location. He stated that they did not
receive a response. He commented that, had he known that there would be a response to that
issue this morning, he would have insisted on a response before attending this hearing. He said
that he still wanted a response.
Mr. Stevens concurred that the owner of Lot 6 would unquestionably object to relocating the
stub street closer to his house. He held that Mr. Derby should have responded to his letter and
included him in the deliberations.
Mr. Stevens stated that the statement in the exhibit referencing the `extinguishing of the existing
60 foot access easement east of the right-of-way' was false, as he has testified previously. He
asked to correct the record.
Mr. Stevens argued for fixing the location of the stub street at this time, even without knowing
the final configuration of his eventual development. He stated that no one has explained to him
why a floating easement was to his benefit. He indicated that if he could have a document that
he could count on, and which was clearly designed to give his family exactly what they needed,
even if it meant 50 years from today, then he would listen to reasonable discussion about a
floating easement.
Mayor Hammerstad stated that she had understood from the Council's briefing by their legal
counsel that the floating easement was included in order to provide for flexibility in siting the
street in the location that would be of the greatest benefit to a future development on the Stevens
property. Mr. Wheeler confirmed that that was correct.
City Council Minutes Page 4 of 8
May 22, 2001
Mr. Boone stated that what was in Mr. Stevens' best interest, if he wanted to develop the
property, was to allow the floating easement. He concurred that there was uncertainty as to what
the laws would be at the time when Mr. Stevens decided to develop his property, especially with
the property outside the City's jurisdiction. He mentioned that the application came in with a
floating easement; the City responded to that proposal by stating that if the developer intended to
float it, then they needed to deal with the open space issues. He gave staffs opinion that a
floating easement did provide for the ultimate development in the most beneficial manner by
preserving the options at the time of development.
Mayor Hammerstad observed that the City could fix the street but she did not think that Mr.
Stevens gained anything by fixing it. She noted that the City was giving up a little bit in order to
allow it to float.
Mr. Stevens recalled that 40 years ago the City of Lake Oswego stopped him from putting a
street through from Rosemont to Westview (over what was now the Evershed property)by fixing
a floating easement on it. He indicated that that was why he was not trusting of City Council
actions.
Mr. Stevens alleged that, when this application came in, the City came out with a record of a
one-foot `spite buffer strip' to keep him from getting back onto his own property. He indicated
that he had to essentially throw a temper tantrum in order to retain control over his own property.
He expressed his dismay at discussing this in public, as their attorneys should have resolved this
issue through a response to his attorney's letter. He emphasized that he did not want the City to
have control of how he got back on his property at any point in the future. He said that if it took
a fixed deal tonight to ensure that, then he would insist on a fixed deal.
Mayor Hammerstad excused Mr. Stevens from testimony. She indicated that the Council
would talk with its attorney before taking further testimony.
Mr. Boone clarified that they were talking about the right of the public to cross a dedicated
public street, and not the private right of the individual to cross the land. He explained that the
City did not eliminate Mr. Stevens' private rights by requiring a dedicated public right of way.
He said that the City would not develop the stub street for public access until there was some
place for it to go. He indicated that the `spite strip' dealt with the public's right to cross, not Mr.
Stevens. He emphasized that if Mr. Stevens had a dedicated easement right underlying the strip,
then the City could do nothing to destroy that right.
Mr. Boone confirmed to Councilor Turchi that Mr. Stevens already had his own right to access
his property; the public right-of-way did not affect his private right of access, unless he yielded
that right, which he has not done. He explained that the statement on the application speaking of
extinguishing the easement was in the developer's proposal; the developer had to satisfy all the
conditions before the City would approve the plat, at which time the dedication would be
granted.
Mr. Stevens stated that he was asking if the record of this meeting established that in the future
he would be permitted a dedicated public street back onto his property, without fixing its location
at this time. He reiterated that he did not want the City to have control of their getting back onto
their property; he had control now and wanted to keep it. He indicated that he did not understand
the discussion about a private easement for private purposes, as the purpose was to create a
public street for access to his property.
Mr. Stevens confirmed to Mayor Hammerstad that he did not want people coming onto his
property at this time. Mayor Hammerstad commented that she thought that they were in
agreement; they needed to discuss how to give Mr. Stevens a satisfactory comfort level.
Mr. Boone referenced Mr. Stevens' comment that he wanted to control the public right-of-way.
He indicated that the City controlled the public right-of-way while Mr. Stevens controlled the
private rights on the land underlying the right-of-way.
City Council Minutes Page 5 of 8
May 22, 2001
Mr. Wheeler directed the Council's attention to Condition A-1 (page 5, Section B), which
required dedication of the public rights-of-way, including the stub street south of Atherton Drive.
He explained that this cleared up the fact that the plat included a dedication of a public street
down to Mr. Derby's south property line, which was also Mr. Stevens' north property line. He
noted the paragraph acknowledging that the stub could be moved at a later time but also
requiring the pursuit of a process in order to move the stub. He indicated that the agreement
between Mr. Stevens and Mr. Derby must acknowledge both the floating easement and the
process.
Mr. Wheeler spoke to the assurances that Mr. Stevens wanted. He said that this project met all
the objectives of the City and was granted approval. He noted the mechanisms within the project
for Mr. Stevens' continued involvement in reaching agreement with Mr. Derby in order to
execute the conditions of approval. He indicated that the existing 60 foot wide road easement
out to Stafford Road was reconfigured as a function of the agreement.
Mr. Boone clarified that the stub street location was fixed but could be relocated if the City
determined that it was more appropriate to have the public right-of-way moved in order to
provide for better development of the Stevens property.
Mr. Wheeler confirmed to Mayor Hammerstad that any relocation of the street occurred as
part of the development on the Stevens property, if and when that occurred.
Mr. Boone clarified to Councilor McPeak that staff used the phrase `floating easement' because
it preserved the concept of options at some future time. He explained that the street location and
its potential range of movement were fixed, as the developer needed that certainty in order to
configure his lots.
Mr. Wheeler confirmed to Councilor McPeak that the City had the jurisdictional authority to
decide to move the street. He noted the `ghosting' of a conceptual subdivision layout
configuration on Mr. Stevens' property (Exhibit E-9), which provided the basis for the location
of the stub street. He explained that, should that concept plan change significantly between now
and Mr. Stevens' intent to develop, this approval enabled the street alignment to move west up to
the eastern edge of Lot 6 in order to accommodate that subsequent development. He said that to
do so would require approval of the project and a vacation and rededication of the right-of-way.
Mr. Wheeler confirmed to Councilor McPeak that Mr. Stevens would initiate the process.
Councilor McPeak observed that the situation was in Mr. Stevens' control because he would
initiate the proposal that would affect the location of the right-of-way and stub street, and not the
City. Mr. Wheeler concurred.
Councilor Graham asked if it would be in order for the City and/or the Derbys to write a
clarifying letter to Mr. Stevens reiterating the points made during the discussion tonight. Mr.
Boone said that staff could write a letter indicating how the City interpreted the language in
Condition 2A-1, as it would apply to Mr. Stevens property and future development. He
reiterated that the City had no reason to move the stub street unless the adjacent property
developed, which would not happen until the property owner submitted an application for
development.
Mayor Hammerstad directed Mr. Boone to draft a paragraph, separate from the findings,
clarifying to Mr. Stevens that the stub street would only move if it was initiated as part of a
development application going through the normal approval process.
• Dr. Susan Stevens Hummel, 504 SW Illinois, Portland
Dr. Hummel discussed her perception that there have been conflicting statements made about
the reason for the floating stub street. She explained that those who have attended the hearings
had heard that the flexibility, as agreed to by Mr. Stevens and Mr. Derby, was to give Mr. Derby
flexibility in the final design of his lot configuration that resulted from City decisions. She said
City Council Minutes Page 6 of 8
May 22, 2001
that Mr. Stevens agreed to the flexibility in part because the family had an interest in dedicating
an easement to public open space on its land.
Dr. Hummel held that the flexibility changed tonight to flexibility occurring whenever the
property developed (which was an underlying assumption during the discussion that might not be
accurate). She noted that the flexibility in having a floating stub street came out of the last
hearing primarily to get some agreement between the parties. She stated that she understood at
the last public hearing that the stub street would be fixed prior to development proceeding.
Dr. Hummel indicated that she understood the City Attorney to say that part of this was to
provide the City with the ability to decide in the future if the street could be moved, which the
Stevens family found discomforting. She commented that a letter from the City stating that the
action could be initiated only by Stevens Family Farms would help reassure them. She asked
that they be allowed to review the contents of the letter prior to its approval by the City Council.
Mayor Hammerstad indicated that it would be appropriate for both parties to review the letter.
Dr. Hummel agreed with the Mayor that this should not be a major issue. She reiterated that
their discomfort came from things said tonight that they felt were inconsistent with what has
happened in the process up to this point. She concurred with her father that this matter would
have been better addressed earlier in the day. She reiterated her request to review the letter.
Mayor Hammerstad commented that staff had had some time constraints in reaching an
agreement prior to the hearing tonight, which may have been the reason for the meeting this
morning. She noted that the Council decision was not final until adoption of the findings, which
provided an opportunity to work out an agreement on the language, prior to adoption of the
findings, that was satisfactory to everyone.
REBUTTAL
Mr. Shonkwiler agreed with the letter approach in clarifying the Stevens' understanding of
where they stood. He commented that he thought this was a semantics issue involving
`flexibility' and `fixed.' He noted that they have fixed where the road went for now while
allowing for a process whereby the Stevens could, at a later date, request moving the street closer
to Lot 6. He mentioned that Mr. Derby would prefer the finality of fixing the stub permanently
at its present location but they thought that the Stevens family wanted the flexibility to change
the location if necessary.
Mr. Shonkwiler clarified that the provision about extinguishing the easement, referenced by Mr.
Stevens, was a mistake by OTAK. He emphasized that the applicant stated on the record at the
DRC that it was a mistake, and that the DRC fully understood that.
Mr. Shonkwiler clarified to Mayor Hammerstad that the language under Condition A-1 did
not mean that the entire easement was extinguished. He stated that the DRC approved the
agreement that Mr. Stevens would allow 10 feet to drop off his easement, as long as the easement
was reconfigured so that it overlapped where his access would be all the way to the stub to his
property. He said that Mr. Stevens ended up with a consistent 50-foot wide easement, which he
owned and with which no one could interfere.
Mayor Hammerstad directed that the record show that the statement referred to by Mr. Stevens
was an incorrect notation.
Mr. Shonkwiler indicated that he tried twice to reach Mark Whitlow, the Stevens Family
attorney, about the meeting with the City this morning. He stated that he left a message detailing
the contents and issues for discussion at the meeting.
Mr. Shonkwiler noted that the DRC eliminated the `spite' strip, as it agreed with Mr. Stevens
that it was wrong.
Mayor Hammerstad closed the public hearing.
City Council Minutes Page 7 of 8
May 22, 2001
COUNCIL DISCUSSION
Mayor Hammerstad reiterated the Council direction to staff, Mr. Derby and Mr. Stevens to
review the wording of the letter regarding the stub street, and to attempt to reach agreement on it;
staff would bring the letter to the Council at the time of the adoption of the findings.
Councilor McPeak moved to approve the conditions regarding LU 00-0028/AP 01-04, the
23-lot residential planned development at 1875 Atherton Drive, as presented by the
applicant and staff and outlined in Exhibit 1 (May 1, 2001). A voice vote was taken and the
motion passed with Mayor Hammerstad, Councilors McPeak, Hoffman, Turchi and
Graham voting in favor. [5-0]
4. ADJOURNMENT
Mayor Hammerstad adjourned the meeting at 7:12 p.m.
Respectfully submitted,
VIY'ev) CitWiti)
Robyn Chtistie
City Recorder
APPROVED BY THE CITY COUNCIL:
ON 1
ie Ha merstad, Mayor
City Council Minutes Page 8 of 8
May 22, 2001