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HomeMy WebLinkAboutApproved Minutes - 2009-03-03 04 w` CITY COUNCIL REGULAR MEETING MINUTES March 3, 2009 �osior OWEGO$.._ Mayor Jack Hoffman called the regular City Council meeting to order at 6:38 p.m. on March 3, 2009, in the City Council Chambers, 380 A Avenue. Present: Mayor Hoffman, Councilors Jordan, Johnson, Moncrieff, and Olson. Councilors Hennagin and Tierney were excused. Staff Present: Alex McIntyre, City Manager; David Powell, City Attorney; Robyn Christi , City Recorder; Joel Komarek, LOIS Project Director; Jane Heisler, LOIS Public Relations Director; Sarah Seldon, Neighborhood Planner; Denis Frisbee, Director of Development and Planning Services; Jonna Papaefthimiou, Natural Resources Planner Youth Council Present: Youth Councilors Dod and Kosloff. 3. PRESENTATIONS 3.1 Distinguished Service Award: Ken Faris, Library Advisory Board Mayor Hoffman presented a Distinguished Service Award to Ken Faris for his service on the Library Advisory Board. 3.2 Lake Oswego Interceptor Sewer Update (LOIS) Mr. Komarek introduced John Holland, Vice President, Brown & Caldwell Portland Office. He indicated that Mr. Holland was the project manager for the Brown & Caldwell team assisting the City in the project design process. He gave a PowerPoint presentation. He noted that the project teams have completed a substantial amount of work since Brown & Caldwell completed the pre-design for LOIS in February 2007. He presented a timeline of the project schedule, noting that the Bryant/Kelok project was underway and that Phase 2, the lake full work, was out to bid. He discussed what has changed since the completion of the pre-design work, based on the new information gathered. He indicated that with the discovery that lake bed sediments would be vulnerable to liquefaction during a seismic event, and thus would not support the buried portion of the pipe, staff changed 6,000 feet of buoyant pipe to 6,000 feet of pile-supported pipe. He explained that another reason for that decision had been the Army Corps of Engineers' permit requirement to restore the lake bed contours to their pre-construction condition. Installing the buoyant system would have required significant excavation of the lake bed sediments. He mentioned a challenging design element that added cost to the project: the need for the system to operate under all drawdown scenarios, including a dam failure and total drainage of the lake. He mentioned the concepts in the pre-design of using polyester straps to connect the pipe to the tethers, and constructing the submerged manholes out of the same material as the pipes. He indicated that staff would recommend that Council add to the scope of work for the overall project, the rehabilitation of the West Bay, Lakewood Bay, and Main Canal trunk sewer lines in order to extend the useful life of these 40-year infrastructures by another 50 years. He noted that the contractor for the lake full work would already have the necessary equipment on site to do the rehabilitation. City Council Regular Meeting Minutes Page 1 of 17 March 3, 2009 He explained that other items that have changed since the completion of the pre-design work, including completion of negotiations with the Lake Corporation for lake draw down and easements, legal fees to negotiate those easements, the property acquisition in progress, and a dedicated staff project team. He said that as a result of all the changes, the estimated project cost was now$124.5 million. He presented a chart showing the breakdown of the cost by the separate phases. Mr. Komarek indicated to Councilor Jordan that the cost for the rehabilitation project was included in the overall program cost, but staff would bid it out separately as Phase 6. He observed that there were potential economies if the same contractor who had equipment on site and mobilized for the lake full work also won the bid for the rehabilitation project. 4. CONSENT AGENDA Councilor Johnson moved the Consent Agenda. Councilor Jordan seconded the motion. A voice vote was taken, and the motion passed with Mayor Hoffman, Councilors Jordan, Johnson, Moncrieff, and Olson voting `aye.' (5-0) 4.1 APPROVAL OF MINUTES 4.1.1 February 3, 2009, regular meeting Action: Approve minutes as written END CONSENT AGENDA 5. ITEMS REMOVED FROM THE CONSENT AGENDA 6. CITIZEN COMMENT • Cathy Dausman, 5421 Baycreek Drive, Lake Oswego Amateur Radio Emergency Services Group(ARES) She explained that the American Radio Relay League sponsored ARES, a group consisting of FCC-licensed amateur radio operators who volunteered their time and communication skills in the public interest when disaster struck. She said that the Lake Oswego ARES Group had an active roster of 24 volunteers contributing an estimated 900 volunteer hours annually to the City. She indicated that ARES worked under the Lake Oswego Emergency Manager and Fire Department. She noted the varied backgrounds of ARES volunteers. She mentioned several non- emergency events that ARES worked, including the Lake Oswego Lake Run. She invited the Council to attend their monthly meetings every third Wednesday at the Main Fire Station, and the Fourth Annual Field Day Exhibit on June 27 at the Westlake Park Picnic Shelter. • Carolyne Jones, 2818 South Poplar Way She explained that her comments were an effort to balance the biased presentation given to the Council by the speaker from the Portland Audubon Society at the February 2 Council meeting with respect to the sensitive lands code amendments. She commented that since all the terrain within the Willamette Valley has been tampered with, there was no such thing as pristine habitats. She held that not all habitats were necessarily threatened resources, as they had life cycles that began and ended. She argued that not all trees were necessarily a threatened resource, but rather a renewable resource, as demonstrated by the Oregon Christmas tree farmers' annual harvest. She noted that trees also had negative aspects, such as falling on power lines and vehicles during storms, and inviting fires and destructive insects, such as termites. City Council Regular Meeting Minutes Page 2 of 17 March 3, 2009 She characterized the February 2 speaker's claim that every tree must be valued for its ability to filter air as 'questionable,' given that air pollution resulted from the burning of fossil fuels by such sources as vehicles, wood-burning stoves, and coal plants. She argued that it was not realistic to expect trees to save the planet from the excesses of fossil fuel burning. She suggested regulating the burning of fossil fuels rather than trees as a serious approach to environmental preservation. She contended that tall tales have been fabricated to blame stream corridor owners for pollution, and argued that taking private property along streams and rivers would do nothing to counter the real problems of air pollution. She commented that the biggest source of water pollution came from the fertilizer used by Oregon Christmas tree farmers on the 12 million trees cut annually. She held that even taller tales have been fabricated about how trees filtered air pollution, and how they cooled streams. She argued that the rainy climate of Oregon meant that any pollution falling on trees was washed from the tree leaves into the water during rain events. She commented that the Oregon climate was temperate, and that cool temperatures as well as hot temperatures could harm fish eggs. She argued, given the volume of water of the Willamette River, that physics and the laws of mass and energy made it impossible for the river to make a difference in temperature, given that only one-third of the water was close enough to the surface to be affected by surface temperatures. She contended that the Willamette River was anything but a 'fresh' water resource. She cited Scott Learner of the Oregonian who wrote that the Willamette River was still a mess with high concentrations of the toxic chemical PCB, and no new clean-up projects expected. She named other threats to fish, including wildlife predators, disease, flooding, and dams. She mentioned that long-term residents in her Glenmorrie neighborhood recalled when Sucker Creek was a popular fishing hole, but now it was a dead zone for fish after two years of the Lake Corporation dumping copper sulfate into the lake to control algae. She argued that there were also limits to which wildlife should be idealized. She noted that birds and air travel were not a good mix, citing the considerable expense incurred by the Portland airport in trying to avoid bird strikes. She pointed out that wildlife could bring insect pests, such as fleas and ticks, and diseases, such as rabies, and distemper. She commented that moles could destabilize a hillside causing land erosion and mudslides, and that slugs ate expensive plants. She stated that Lake Oswego was not a dedicated bird or wildlife refuge but a community platted for residential, commercial, and industrial development. She argued that trees, water resources, and wildlife were only part of the equation. She spoke to steering clear of the environmental fanaticism promoted by the February 2 speaker, and aiming for a balance. 7. PUBLIC HEARINGS 7.1 A request for legislative text amendments to the City's adopted Citizen Involvement Guidelines for the purpose of clarification and updating. Updates include new guidelines for neighborhood association boundary amendments, amendments to th procedure to remove neighborhood association recognition, and clarification on the City's annual meeting to review the citizen involvement program. LU 08-0031 Mayor Hoffman mentioned that the Council and the Commission for Citizen Involvement would hold a joint session on May 19 to discuss further steps and any modifications to the citizen involvement program. STAFF REPORT Ms. Seldon asked for Council tentative approval of amendments to the Lake Oswego Commission for Citizen-Involvement (CCI) guidelines, as recommended by the Planning Commission last fall. She explained that these guidelines implemented the State requirement that local jurisdictions adopt a program defining how the public would be involved in the local land use planning process City Council Regular Meeting Minutes Page 3 of 17 March 3, 2009 (Statewide Planning Goal 1). The guidelines outlined the roles and responsibilities for all groups involved in Lake Oswego's land use process. She noted that the Planning Commission served as Lake Oswego's Commission for Citizen Involvement (CCI). In addition to providing time on each Planning Commission agenda for CCI matters, the Planning Commission met annually as the CCI to review the City's adopted CCI guidelines and to discuss the program. She said that at last year's meeting, three issues were raised that lead to recommendations for amendments to the process to remove neighborhood association recognition, to the process to amend neighborhood association boundaries, and to the guidelines for the annual CCI meeting (p.69). She noted that these amendments encouraged neighborhood associations to play a more active role, and they assigned the CCI a more active role in assisting the neighborhoods. She explained that the amendments to the process to remove association recognition were intended to encourage reactivation of inactive neighborhood associations. Staff would send notices to every member of an association that has been inactive for three years, encouraging them to re-engage and offering assistance. If that failed, staff would send out a second notice of intent to remove recognition but offering an opportunity to argue their case for remaining recognized. She explained that the amendment to the procedure to amend the boundaries of neighborhood associations provided associations with an opportunity to propose boundary amendments to the CCI, and it gave the CCI a more active role in helping associations determine whether a boundary amendment was the best solution to whatever issue gave rise to the request for a boundary change. She pointed out that the City Council had the final decision on any boundary amendments recommended by the Planning Commission. She explained that the amendment to the guidelines for the annual CCI meeting formalized that meeting as a time to review the CCI guidelines and program. The City would send notices to all the neighborhood associations and other interested organizations announcing the meeting, specifying the agenda, and noting the opportunity to testify on any matters related to citizen involvement. She noted that the CCI would hold its own work session on April 22 and the joint meeting with the City Council on May 19. QUESTIONS OF STAFF Councilor Jordan expressed concerns regarding the boundary change amendments. She spoke to providing guidance for the Planning Commission, should such a request actually occur. She asked when the association members who were not requesting the change had an opportunity to comment about the change. She wondered what happened to a neighborhood overlay if a group seceded from the association. She asked if there was a contiguous requirement so that they did not end up with a doughnut or an isolated center area surrounded by a separate association. Ms. Seldon explained that staff had originally come to the Planning Commission with a very detailed set of criteria and guidelines for making the decision, but the ensuing discussion brought out that those criteria and guidelines were much too complicated and could not address every scenario possible for a boundary amendment request. She said that they went back to a simplified set of guidelines that gave general guidance but left it up to the CCI and those involved to use their best judgment in deciding what to do. She indicated that after meeting with the Planning Commission and the neighborhood representatives, staff added in language to provide the CCI with an active role in helping groups to avoid needing to amend the boundary. She noted that occasionally there might be a couple of properties that really did belong in an adjacent neighborhood association, and the boundary just needed tweaking. She stated that the guidelines would provide guidance but also allow flexibility. City Council Regular Meeting Minutes Page 4 of 17 March 3, 2009 Councilor Jordan said that while she appreciated the flexibility and the desire to find solutions, she still had concerns about the guidelines' openness. She asked if the City has ever had a group seriously look at changing the boundary of a neighborhood association. Ms. Seldon indicated that what boundary amendments have occurred in the past came out of a natural process of bringing a few properties not in any neighborhood association into a neighborhood association. Ms. Seldon explained that this amendment came up last year because a group of residents had wanted to branch off and form their own neighborhood association. However, apparently the residents resolved the issue because she has heard nothing more about it. She indicated that the Planning Commission would look to the criteria used to form a new neighborhood association (p. 68) when considering a boundary change amendment. Councilor Olson recalled that the Planning Commission discussed at length the detailed process brought forward by staff, which it felt came in response to one group and one issue. Given that these requests were so rare, the Commission had not wanted to be bound by rules about numbers and the amendment request first getting staff approval. She explained that the Commission preferred that the CCI encourage neighbors to work with the CCI to resolve neighborhood issues, as opposed to changing boundaries. Councilor Moncrieff indicated that she was pleased with the final draft and comfortable with the definitions and the procedures for recognition and for preventing an issue-driven neighborhood association from breaking off. She held that the existing language defining a neighborhood association would insure that any boundary change would be made for logical reasons. She noted the encouragement of participation and support, especially as outlined in the procedure to remove recognition. Councilor Jordan said that she was still not satisfied, as forming a new neighborhood association was different from removing oneself from an existing association. Ms. Seldon agreed that they were two different things, but pointed out that a group wanting to split off and form a new association would have to meet the new association criteria, as would the remainder of the old association. She suggested further discussion at the joint Council/CCI meeting. PUBLIC TESTIMONY Mayor Hoffman opened the hearing to public testimony. • Charles "Skip" Ormsby, 170 SW Birdshill Road He discussed Birdshill's difficulty in getting recognized for a variety of reasons, including the issue of the boundary line between Birdshill and the First Addition/Forest Hills Neighborhood Association. He said that the boundary line, instead of being the physical ravine of Tryon Creek that actually separated the two areas, was a tax lot line on the west side of Terwilliger. He mentioned filing a series of complaints last summer regarding the boundary issue, pedestrian access by the Birdshill area to Lake Oswego, and water drainage issues. Mayor Hoffman closed the hearing to public testimony. COUNCIL DISCUSSION Councilor Jordan moved to tentatively approve LU 08-0031 and request staff to return with an ordinance on April 7. Councilor Olson seconded the motion. A voice vote was taken, and the motion passed with Mayor Hoffman, Councilors Jordan, Johnson, Moncrieff, and Olson voting `aye.' (5-0) 7.2 Legislative amendments to the Lake Oswego Community Development Code Article 50.16 (Sensitive Lands Overlay District). Proposed updates pertain to the foil wing topics: consistent usag of t rms, permitt d uses in resourc areas (s cond-story additions, utility tunneling, stre t or trail signs, access to n w lots), "wildlife- City Council Regular Meeting Minutes Page 5 of 17 March 3, 2009 friendly" fences, d velopment proc dures, and hazardous materials storage. LU 08- 0051(A) Mayor Hoffman reviewed the hearing procedures and testimony time limits. STAFF REPORT Ms. Frisbee explained that this ordinance was the first in a three-part work plan for 2009. She indicated that the second and third parts involved mapping updates and amendments and policy changes. She said that this ordinance addressed code clarifications and syncing up interpretations with the code language. She noted that the Planning Commission forwarded this packet of recommendations after a considerable review and vetting process. She reviewed the extensive public outreach conducted by staff. She indicated that staff would continue that public outreach as the City moved forward with the mapping and policy issues. She mentioned that the draft maps have been on the website for a year, and staff has now put a link to them from the City home page. Ms. Papaefthimiou gave a PowerPoint presentation on the specific code changes proposed as part of Ordinance 2527. She indicated that staff intended these 'housekeeping amendments' to be the easy part of the code update. She noted their four primary purposes: to meet Metro Titles 3 and 13, to clarify current policies, to improve the graphics, and to provide relief for property owners in the review of very small projects (pp.96-97). She explained that once the City complied with Metro Title 3 (the regional water quality standard), staff could put forward the City's sensitive lands program for compliance with Metro Title 13 (protecting wildlife habitat). She discussed the changes needed to bring the code into compliance with Metro Title 3. These included modifying the purpose statement to state that it was a water quality ordinance, giving consideration for year-round streams and large wetlands of more than five acres when designating new resources, updating the City's maps in a timely way, and prohibiting hazard materials storage in resource areas. She emphasized that staff proposed the housekeeping changes, or the actual editing changes to the code text, to clarify the language so that it clearly and simply expressed what staff already understood the text to mean. She stated that there were no policy changes or changes in staff practices. She explained that the intent behind the changes was to help the public read the code clearly and to better understand what it meant, and to make sure that staff interpreted the code consistently. She indicated that the improved graphics were analogous to the housekeeping changes in that they made no difference in how staff applied the code. Rather they made the map better and more descriptive by including the resource buffer for the sensitive lands designations. She noted that the graphics also modified the diagrams that went with the code, so that they were to scale and more realistic. She explained that the last group of changes were intended to provide relief to property owners by making it easier for them to do very simple projects, such as replacing a deck, switching out landscaping shrubs, or doing restoration work. Property owners would no longer need to come in and have a formal land use review, but rather they would use best practices in doing their project. She presented the staff recommendation for tentative approval tonight and final approval on April 7. PUBLIC TESTIMONY Mayor Hoffman opened the hearing to public testimony. THOSE OPPOSED • Audrey Mattison, 2929 Glen Eagles Road, Uplands N ighborhood Association Board City Council Regular Meeting Minutes Page 6 of 17 March 3, 2009 • She noted that these proposed sensitive lands amendments were the first opportunity in a decade for the affected property owners to have a voice in the process and a direct dialog with the City over these important issues. She pointed out that the affected property owners have also had an opportunity over the last 10 years to observe what effect the Sensitive Lands ordinance has had on their neighborhoods. She expressed their concern that affected property owners remained unidentified, either by the lack of a completed Sensitive Lands Atlas, or by not having knowledge of sensitive lands, or by choice. She indicated that they were equally concerned that natural resources might suffer unintended consequences by creating a situation that increased avoidance in securing required permits and fostering illegal development. She cited an example in her neighborhood from four years ago. Three of eight neighbors had never heard of sensitive lands, and four did not think that it applied to private property but only to public parks and public spaces. However, all of them were in a sensitive lands overlay district of either RC or RP. She asked for consideration of two important issues: completion of the Sensitive Lands Atlas prior to Council consideration of the proposed sensitive lands amendments, and suspension of all actions regarding the sensitive lands amendments in order to allow the City to convene a Sensitive Lands task force or advisory board. She commented that affected property owners have long awaited the City's updated Sensitive Land Atlas, complete with buffers, to see how their properties might be impacted. She argued that the location of resource properties would create greater certainty for affected property owners and simplify annexations. She held that recording significant habitat areas would help discourage resource destruction before annexation. She noted that the Planning Commission and the affected property owners agreed that correlating the existing code and the proposed 67 housekeeping amendments was challenging and difficult. She mentioned a common concern regarding the definition of a perennial stream, especially questioning how backyard seasonal drainage got elevated to a significant stream. She said that the volume of information presented required a thorough review that included affected property owners in direct dialog with staff and other community representatives. She held that natural resources deserved the same attention as other City issues and projects received, such as sustainability, infill, and LOIS. She argued that the public was still largely unaware of the importance of sensitive lands to all Lake Oswego citizens, whether they were affected property owners, developers, or the public at large. She indicated that they were interested in seeing the process work better than it has in the past 10 years. She described the proposed task force as comprised of 11 members (six affected property owners, four community at large representatives, one City representative/staff, and an impartial facilitator). She said that the charge would be to review and make recommendations on only the 80 proposed sensitive lands amendments originally submitted to the Planning Commission on September 22, 2008, and to provide a written report within 90 days of convening. She mentioned a comment given at the last Planning Commission meeting regarding the high level of interest expressed over this one section of code, citing the 20 written points of testimony and the four-hour work session. • Michael Buck, 3155 Edgemont Road Mr. Buck indicated that although he lived in a different neighborhood than Ms. Mattison, he has co-signed the Uplands Neighborhood Association request and recommendations. He commented that he saw a missed collective opportunity to educate the population about sensitive lands. He questioned how many people realized how great an impact the Sensitive City Council Regular Meeting Minutes Page 7 of 17 March 3, 2009 Lands ordinance has had over the past 10 years. He concurred with Ms. Papaefthimiou that it was the responsibility of all citizens to take care of clean water and to restore native habitat. He held that what was missing was how the community shared in this burden of collective responsibility. He said that it took education and everyone understanding what the mission was and signing off on it. He suggested stopping the process rather than proceeding with something that seemed like it was imposed. He commented that the amendments contained elements that most lay people would not understand, such as the definition of a stream or of a significant resource, or how the terms would be used and applied to future development. He said that while he supported many of the housekeeping amendments, the package as a whole concerned him. • Charles Ormsby, 170 SW Birdshill Road Mr. Ormsby apologized to Ms. Papaefthimiou and Ms. Frisbee for his behavior after the February 17 Council meeting, stating that it would not happen again. He discussed his concerns about the application of the Sensitive Lands ordinance to the Birdshill area. He mentioned the schedule for citizen involvement in sensitive lands and the delivery of the sensitive land maps on time. He indicated that the continuity of testing with respect to boundaries was an important issue to himself and his neighbors. He spoke of discrimination in the recognition process, a lack of understanding of the compliance with timelines, and a lack of simplified summaries. He argued that just as the Rocketdyne Company had to manufacture of the space shuttle correctly for a safe launch, so too did the City need to launch the sensitive lands process correctly, or it would be seen as an intrusion and potential devaluation of private property, especially by those outside the city. He encouraged undertaking the validation process that he recommended two years ago, but which he contended has not occurred. He expressed concern about the non-inclusion in the sensitive lands inventory of properties from Tryon Creek east to the centerline of Hwy. 43. He held that once people throughout the Lake Oswego Urban Growth Management area started to question the process, there would be many concerns about how effective, open, and honest the process has been. He hoped that Birdshill would have a greater say than it has up to this point. He held that approving this tonight would be a mistake. He stated that he agreed with Mr. Buck. • Carolyne Jones, 2818 S Poplar Way She passed out a document summarizing Mayor Hoffman's experience at Metro in dealing with regional sensitive lands/natural resource issues. She described the natural resources regulations that Mayor Hoffman worked on, which the Metro Council adopted in spite of significant public opposition, as expanding resource protection and simultaneously diminishing private property rights. She noted Mayor Hoffman's claim on FindLaw.com that as MPAC Chair, he helped shape and implement the regional natural resources program. She expressed her concern that one person serving as both judge and jury called into question issues of justice. She indicated that the invitation of a speaker from the Portland Audubon Society to the February 24 meeting further intensified her concerns about a conflict of interest. She asked if this was an issue that the Mayor could approach in an impartial way. Mr. Powell explained that issues of bias did not come up in legislative hearings, as they did in quasi-judicial hearings. He pointed out that a legislator might be elected because of his/her bias on a certain issue. He stated that the fact that a City Council member might have already taken a position on s nsitive lands amendments was fine for a legislative hearing, but not for a quasi- judicial hearing on granting a permit. City Council Regular Meeting Minutes Page 8 of 17 March 3, 2009 Ms. Jones acknowledged Mr. Powell's point but stated her disagreement. She held that bias should be an issue. • Gary Buford, 5 Camelot Court He mentioned that his 4-acre parcel, referred to as urban forest, was scheduled to be designated as sensitive lands, resulting in a taking of 50% of his property. He directed the Council to Section 50.16.020 (p. A-16), the title criteria for designating property within an overlay district. He proposed changes to make the code more friendly and inclusive of all citizens and property owners in Lake Oswego, in order to share the responsibilities of sensitive lands. He cited a statement in the document as the reason for his proposed changes: neither the Mayor, nor any City Councilor or Planning Commissioner currently owned property designated as sensitive lands. Therefore, they were excluded from participation in the conditions imposed on private property ownership by the Sensitive Lands ordinance. He argued that this was unfair and exclusionary. He proposed re-writing Section 50.16.020 to include all lands within the city of Lake Oswego in both public and private ownership in order that all might enjoy the requirements of the Sensitive Lands ordinance. He indicated that the answer to the question of how land could be put in a resource protection zone if it did not contain a stream, wetland, or other qualifying natural resource was to put the land in a resource conservation overlay. If one's land had no tree groves, then the ordinance would require the property owner to remove any and all landscaping from 50% of his/her land and re-plant it with native trees and brush. Thus, a property owner would no longer need to maintain 50% of his/her land because he/she could let the native trees and brush grow wild on that 50% of the land. He noted the side issue of hoping that no one started a fire on that portion of the land. He contended that only by participating in the effects of the Sensitive Lands ordinance, could the Council appreciate the feelings and hurt of those scheduled to have their land designated an RP or RC overlay district pursuant to the Sensitive Lands ordinance. Mayor Hoffman closed the hearing to public testimony. Mayor Hoffman recessed the meeting for a break at 8:06 p.m. He reconvened the meeting at 8:17 p.m. QUESTIONS OF STAFF Councilor Moncrieff said that she wanted to be completely confident that the housekeeping items did not change policy in any way. She expressed concern about two items in particular: the definition of a perennial stream as opposed to an intermittent stream, and the definition of a significant resource. Ms. Papaefthimiou explained that a perennial stream was a stream that flowed all year for most years, not even drying up in August. She indicated that this was a common definition used by the Corps of Engineers, the State, and Metro. She clarified that the reference to ground water discharge was saying that water from a broken pipe did not constitute a stream. She stated that the change did not change existing policy or practice; it merely wrote down the definition that staff has been using for decades in applying regulations to streams. She confirmed to the Councilor that since most streams in Lake Oswego travelled through a pipe at some point during their course, a perennial stream included those streams once they travelled over the surface of the earth, and were no longer undergrounded in a pipe. Councilor Moncrieff said that she was concerned about the language in Section 50.16.020 (3) (b), p. A-17, which spoke of expanding the definition of a significant resource. She questioned 'expand.' She asked how 'significant' was quantified. She observed that the references to the Economic, Social, Environmental, and Energy (ESEE) score, the Habitat Assessment Score City Council Regular Meeting Minutes Page 9 of 17 March 3, 2009 (HAS), and the Oregon Fresh Water Assessment methodology held little meaning to the lay person; how would a lay person know if he/she had a significant resource on his/her property? Ms. Frisbee explained that staff did not know for certain whether something was a significant resource until after those scorings have occurred, which was part of the mapping process. She indicated that staff agreed with Ms. Mattison that the City needed to move forward with the mapping before addressing the policy changes, so that people would know whether they were in the affected group. Ms. Papaefthimiou indicated to Councilor Moncrieff that nothing on pp. A-16 through A18 changed existing policy in terms of what was protected now, because these code amendments to the code text applied only to the areas already mapped. Therefore, nothing would change for the property owners with properties already on the map. She described the two-part process that staff would use for mapping resources in the future. First, they gathered the field data to identify the resources and to establish which ones were significant using the HAS and the Oregon Fresh Water methodology score. Secondly, they used the ESEE analysis to consider what other values to weigh in deciding whether to protect the resource. Councilor Jordan concurred that a glossary of terms giving simple definitions was extremely important in helping people understand the code. Ms. Frisbee confirmed to the Councilor that these amendments would not change anything for property owners of resources already mapped, except for benefitting those who wanted to do minor landscaping projects by removing the requirement to go through a plan review process. Councilor Jordan asked, if the City did not have a review process, how staff would know if someone, who claimed to not know that his/her property was sensitive lands, made illegal changes. Ms. Frisbee pointed out that in the application of any code requirement, staff did not know what everyone was doing. Staff did not catch everybody who cut down a tree or violated setbacks in extending a deck. She mentioned Ms. Papaefthimiou's one-on-one work in assessing individual properties, which resulted in almost 50 properties coming off the potential designation list. She acknowledged the point that this was a lot for people to digest. She questioned setting these amendments aside for another three months when they have already been through an extensive public outreach process. She indicated that staff intended more public outreach during the mapping process because that was when new people would be affected. She commented that while the terminology in the 60 to 80 changes was complicated, when staff went through them one by one with the Council two weeks ago, it was understandable because the changes were actually simple. She asked how staff could spend that kind of time with every person. She indicated that staff would be happy to make contact with individuals but public outreach was a challenging and somewhat intractable problem. Councilor Jordan mentioned that the Metro requirement for rebuilding on sensitive lands after a natural disaster destroyed a house allowed rebuilding on the original house's footprint. She acknowledged that the Planning Commission would be bringing forward similar language but asked if the City could apply the Metro standards to properties totally encumbered by a resource until the City code language came forward. Ms. Frisbee indicated that staff could do so. She noted that the Infill Task Force would make a recommendation to soften the existing harsh code language, which staff could move forward separately or address in the policy changes. Councilor Jordan clarified that she was thinking of a temporary use of the Metro code, should an unforeseen disaster happen between now and adoption of that particular code change later this year. Councilor Jordan spoke to looking at the watershed of the City as a whole, as opposed to the current piecemeal approach. She spoke of educational pieces discussing public stewardship of City Council Regular Meeting Minutes Page 10 of 17 March 3, 2009 parks and open spaces, and informing specific resource interest groups of what they needed to do in taking responsibility for a park or open space. Councilor Olson concurred with Councilor Jordan that the City needed to take a more comprehensive look at sensitive lands and Clean Streams, as they were not separate issues. She mentioned her understanding of the citizen testimony as the City needing to find a way to combine code enforcement with education. She spoke to striking a balance between private property rights and the good of the community with respect to natural resources. She said that until they had that broader community discussion, she was not willing to agree to all the changes. She indicated that while there were some clearly housekeeping and language changes that could go forward, she had questions about a number of specific items. She referenced the comments about the Oregon Freshwater/Lakeland assessment methodology on p. A-18. Ms. Papaefthimiou explained that the City's code was originally written for habitat, but in order to comply with Metro Title 3, they had to change it to water quality. The City needed a method for assessing the water quality functions of wetlands. Since Metro and the Department of State Lands already used the Oregon Freshwater Assessment methodology, and it was easy to use for wetlands assessment, staff picked it out of the several methodologies available. Councilor Olson pointed out that one result of the amendment's modification to the language was that wetlands not currently mapped as significant would become significant under the criteria. She wondered whether this was a policy question rather than a housekeeping question, given that it was a major change in methodology. Ms. Papaefthimiou said that it was not a major change in policy. She said that there were no large wetlands unmapped, but acknowledged that a few of them might come up as significant under these criteria. She reiterated that identifying a resource as significant did not necessarily mean that the City would protect it. The City used the two-part process of identifying significant resources, and then weighing a variety of considerations to decide if the resource should be protected. Councilor Olson said that she shared Councilor Moncrieff's concern regarding calling the definition of what was significant a housekeeping change. She asked who decided whether the resource met the other criteria later on in the process. Ms. Papaefthimiou said that Council made the final decision by adopting the changes to the map. Councilor Olson reiterated that this sounded like a policy change to her. She referenced the language on p. A-34 talking about wildlife friendly fences. She commented that this represented a major change from existing code, and therefore they should consider it under policy changes. Ms. Papaefthimiou explained that while the current code required wildlife friendly fences, it did not give any standards for what constituted a wildlife friendly fence. If the code described what a wildlife friendly fence should look like, then she could tell someone over the phone whether his/her proposed fence was wildlife friendly, and she did not have to go out and look at it. Councilor Olson acknowledged the point but reiterated that currently those criteria were not in the code. She argued that adding language defining a wildlife friendly fence represented a major policy change. Ms. Frisbee reiterated that the intent was to define the fence and to make the language coincide with staff practice, in order to clarify the matter. Ms. Papaefthimiou indicated to Councilor Johnson that she found the definition of a wildlife fence that she currently used in published guidelines for wildlife friendly fences. She emphasized that many other designs for wildlife friendly fences could be approved, but a six-foot tall wood fence with eight inches open at the bottom was a common fence type that worked in most cases. Councilor Johnson commented that while she appreciated staff's attempt to define the fence, she understood Councilor Olson's point that by defining it, staff was almost creating policy. Councilor Olson referenced the language under tree hazard tree removal permit (p. A-39). She asked if the sentence, "a dead tree that is not likely to b hazardous to persons or property shall be City Council Regular Meeting Minutes Page 11 of 17 March 3, 2009 retained for wildlife habitat and natural resources," was new language and a change. Ms. Papaefthimiou stated that it was new language. She explained that staff did not change the meaning of this section much, but rather corrected reference errors to the tree code. She indicated that currently, when someone removed a hazardous tree from an RC or RP area, staff asked him/her to leave a tall stump. She emphasized that this was current practice, which this language stated more clearly. Councilor Olson commented that while she saw the need for habitat, she also saw Ms. Jones' point about encouraging termites and carpenter ants by leaving dead wood, and Mr. Buford's point about the fire hazard. Councilor Olson referenced p. A-42, and the issue discussed at the study session. She held that deleting the word 'new' was a policy change that they should set aside for consideration with the other policy changes. Ms. Papaefthimiou explained that staff proposed deleting the word 'new' because it was redundant and misleading. She said that the code as a whole forbade building a structure within 10 feet of the resource boundary; therefore, the word `new' in this sentence served no purpose. Instead, it confused people into thinking that there were different standards for new structures and old structures. She stated that deleting it clarified the code, and did not materially affect whether one could put a new or an old structure within 10 feet of the setback. She indicated to Mayor Hoffman that this change did not change any substantive rights of the property owners. Councilor Olson quoted from the Planning Commission November 10 minutes (p. C-33), where the Commission directed staff to compile a simplified list of changes for reference at future meetings, to compile a list of policy issues requiring further attention, and to schedule a public forum to present them. She asked if staff had that list, as she could not find it in the staff report. She indicated to Ms. Papaefthimiou that she did not think that the summary of all the changes on pp. D67 through pp.D-83 (Exhibit D-4) was a simplified list. Ms. Papaefthimiou commented that she struggled with simplifying the list so that it was understandable yet did not lose important elements. Councilor Johnson brought up the timeline for continuing the process through the mapping and policy changes. She indicated that she heard the public testimony saying that there were significant policy issues coming up. She said that the Planning Commission was the correct body to handle that but noted that there was also room for public involvement as the process moved forward. She observed that some of these housekeeping changes might need changing again once they went through the next round of actual policy directives. She noted that these amendments were intended to clarify the existing code in order to give the City something basic to go back to. She reiterated that they would be dealing with the policy issues later on with significant public outreach. Mayor Hoffman commented that staff recommended the Oregon Freshwater Wildlife Assessment methodology because it was required for Title 3 compliance. Ms. Papaefthimiou indicated to the Mayor that the City has been out of compliance for eight years. Mayor Hoffman reviewed the next steps: developing a revised and accurate map, the Planning Commission dealing with the policy issues through a public involvement process of some kind, and staff preparing a Council report on the package it would take to Metro. Mr. Egner said that there was a next step of complying with the Title 3/Title 13 requirements. Ms. Papaefthimiou indicated that the City could comply with those requirements now. She clarified to Mayor Hoffman that it was up to the Metro Council to decide whether Lake Oswego complied with the Title 3 and Title 13 requirements. Mayor Hoffman asked how much flexibility the City had to change its program, once the M tro Council accepted it as in compliance. Ms. Papaefthimiou said that they could make it as stronger City Council Regular Meeting Minutes Page 12 of 17 March 3, 2009 and stricter as they wanted to. She indicated that if they changed certain too strict portions of the Sensitive Lands ordinance to weaken them but added incentives elsewhere, then they could make a fair trade argument that the package as a whole still worked. Ms. Papaefthimiou indicated to Councilor Moncrieff that she believed that if the Council made only the changes on pp. D67-D68, the Code could potentially comply with Titles 3 and 13. She confirmed to the Councilor that staff would then move forward with the mapping and the policy changes, making sure to notify affected property owners and holding a significant public participation process. Councilor Johnson asked whether Lake Oswego's current code with just the housekeeping changes was more restrictive than Metro's actual requirements. Ms. Papaefthimiou indicated that Lake Oswego's code provided stronger protections for trees and tree groves than Metro required but the tradeoff was its water resources protections. Lake Oswego's stream buffers were skinny by Metro's requirements. She mentioned that Lake Oswego gave more flexibility to property owners to develop than the Metro model code did. She described the Lake Oswego and Metro programs as comparable, which was the criteria by which the Metro Council would approve the Lake Oswego program. Councilor Johnson expressed concern that moving forward with the Title 3 and 13 approval, which they needed to do, might tie the City's hands if they wanted to make changes to lessen restrictions in the future. Ms. Papaefthimiou said that if she thought this would make things harder for the City, she would not recommend moving forward with the Title 13 program now. She pointed out that Lake Oswego was a model for other cities with respect to its tree protections. However, because Lake Oswego has had these protections in place a lot longer than other cities, staff saw ways to improve and ease the regulations and still get 90% of the benefit with less than half the bureaucracy. She said that she thought Metro would be supportive of Lake Oswego saying that it had an effective program that it now wanted to make efficient. Councilor Johnson commented that her concern was that she was relying on Metro to agree with Lake Oswego, and that was not a certainty. She commented that maintaining the same level of protection while redefining things differently in terms of what the City did or did not protect was not necessarily making things more efficient. Ms. Papaefthimiou indicated that staff would sell the program to Metro in asking the Metro Council to agree that the program met Metro's habitat protection standards. Then, staff would go back and say that they now wanted to rethink the program. M . Papaefthimiou noted that January 1, 2009, was the deadline for complying with Title 13, so the City was already out of compliance somewhat. She held that Lake Oswego's existing program met the Metro standards. Even if they made big changes to the program, as long as the program continued to protect habitat, it would meet Metro Title 13. She pointed out that complying with Titles 3 and 13 also locked in place Lake Oswego's skinny stream buffers, so that Metro could not require the City to change them in the future to meet Metro's published standard of 50 feet. Councilor Olson concurred with Councilor Johnson. She commented that she would not take the future generosity of Metro to the bank, as it that was an uncertainty. She observed that if the City has been out of compliance for eight years, then another few months out of compliance would not matter. She agreed that the better order was to do the maps first so that the people newly affected by the sensitive lands overlay could become involved in the process. She acknowledged that they might very well end up with these exact same code changes. She indicated that her concerns focused more on the process and the lack of a comprehensive educational component with the sensitive lands mapping. She said that she would hesitate to implement many of these recommended changes except for the simplified review process. Councilor Jordan asked how the sensitive lands mapping of properties outside the city limits affected those properties. Ms. Papaefthimiou clarified that the mapping did not affect properties outside the city limits because the City could not regulat lands outside its boundaries. She City Council Regular Meeting Minutes Page 13 of 17 March 3, 2009 indicated that the mapping would provide more information to those property owners considering annexation or development. Mr. Powell mentioned the prior Council resolution stating that the City would not annex a property within an overlay zone or on the list for overlay designation, which the owner degraded, unless there was mitigation. He described the resolution as not regulating their property but rather affecting their annexation opportunity. Councilor Jordan addressed the issue of policy versus practice. She commented that it was important to understand that the City was trying to make sure that everybody received the same treatment during the day-to-day operations at the counter; the only way to do that was to write down the practice for common reference. She reiterated the importance of providing a glossary of terms for clear understanding of the terms. She argued that putting into words the every day practices of staff was not changing policy. She asked whether she needed to state her request that the owners of record of totally encumbered lots at the time of the adoption of these housekeeping amendments be covered by the Metro guidelines for rebuilding on the original building footprint in the event of a natural disaster and the destruction of their home, even though the City code did not presently allow that. Mr. Powell indicated that the Council should change the code now because it could not retroactively do so if an application came in under the circumstances described by Councilor Jordan. Mayor Hoffman pointed out that the challenge in doing so was anticipating the Infill Task Force recommendation, on which the Planning Commission has not yet made a decision. He commented that while he thought allowing the rebuilding on the original footprint was the right thing to do, he also thought that the Council needed to let the Planning Commission make a recommendation to the Council on the matter. Councilor Jordan clarified that she was looking for a way to create an exception for totally encumbered sensitive lands properties until the recommendation came forward. Mr. Powell indicated that the Council could do that in the code and have a six-month, renewable sunset date for a temporary fix. C uncilor Jordan reiterated that she would like to see something like that come forward to address a known issue and to make people more comfortable. She commented that they would find the right solution for Lake Oswego, which might be something in between the Metro guidelines and the current Lake Oswego code, but, in the meantime, they were erring on the side of helping the homeowner. Councilor Olson commented that she agreed completely with Councilor Jordan that they needed to codify City policies so that everyone was treated the same. She argued that the Planning Department past practices were not necessarily City Council policy. Therefore, she would like more discussion about codifying some staff practices as policy. Councilor Jordan noted that she would still be relying on the professional staff to give her information. She held that there has never been anything that the Council could not fix if it found it to be a glaring problem. She pointed out that usually staff brought the glaring problem forward. Councilor Moncrieff asked to make sure that the City complied with the Metro Title 3 requirements but did not exceed them. Ms. Papaefthimiou stated that the changes proposed on pp. 68-69 were the minimum requirements needed to comply with Title 13. She said that City and Metro staff went through the Lake Oswego code line by line to identify which changes were absolutely necessary. Councilor Moncrieff mentioned her understanding that Metro did not map intermittent streams but Lake Oswego included them on the map if they had a certain HAS. Ms. Papaefthimiou said that Metro mapped some intermittent streams if the jurisdiction included intermittent streams on the City Council Regular Meeting Minutes Page 14 of 17 March 3, 2009 maps it provided to Metro. She mentioned that Metro relied heavily on the cities to provide the information for the Metro maps. Ms. Papaefthimiou indicated to Councilor Moncrieff that the City was complying with the Metro requirements through a comparable program, which made it hard to answer the question of whether Lake Oswego was exceeding Metro's requirements. She explained that a comparable program as a whole achieved the performance objectives set by Metro. She gave an example of a tradeoff in which the City did not protect intermittent streams but provided greater protection on perennial streams. Councilor Moncrieff pointed out that whether the City mapped intermittent streams was of tremendous importance to private property owners with intermittent streams on their property. Ms. Papaefthimiou concurred. She said that when a prior Council adopted the original Sensitive Lands ordinance in1998, it decided that intermittent streams had habitat value, and therefore should be mapped. Staff was not proposing to change that practice. Mayor Hoffman commented that if the Council made a policy decision not to protect intermittent streams, staff would then go to Metro to find out what the tradeoff would be. He pointed out that if the Council did not want Lake Oswego's program to be performance-based, then it could throw out Lake Oswego's Sensitive Lands ordinance, adopt the Metro model ordinance, and be done with it. Ms. Papaefthimiou noted that the table of protected water features under Metro Title 3 (p.D102) listed intermittent streams draining 50 to 100 acres under secondary protected water features. She pointed out that it did not say include all intermittent streams, and therefore, some were omitted. She referenced the performance objectives for Title 13 (p. D-140 to D-143), which were ultimately what the City had to show Metro it was meeting. COUNCIL DISCUSSION Councilor Jordan moved to tentatively approve LU 08-0051 (A) and request staff to return with an ordinance on April 7, 2009. Councilor Moncrieff seconded the motion. Mr. McIntyre requested Councilor Jordan to amend her motion to April 21, as several Councilors would not be present on April 7. He explained that this was to allow all the Councilors to cast a final vote on the amendments. Councilor Jordan amended her motion to April 21, 2009. Councilor Moncrieff seconded the am ndment. Councilor Johnson commented that while she thought there were some issues, she was comfortable enough with those items, which she saw as questionable with respect to being policy issues, to move forward. She indicated that she would wait for further discussion on going forward with the approval to Metro. Ms. Frisbee said that the Metro report would come to Council for approval. Councilor Olson said that she would vote no for all the reasons she has already stated. A roll call vote was taken, and the amended motion passed with Mayor Hoffman, Councilors Jordan, Johnson, and Moncrieff voting `aye.' Councilor Olson voted 'no.' (4-1) 7.3 Resolution 09-08, a resolution of the Lake Oswego City Council approving a work program to update the Lake Oswego Comprehensive Plan and directing the Planning and Building Services Department to submit these items to the Oregon Department of Land Conservation and Development for State approval consistent with the requirements of periodic review. PP 08-0012 City Council Regular Meeting Minutes Page 15 of 17 March 3, 2009 STAFF REPORT Mr. McIntyre requested more time to work with staff on revising the approach to the Comprehensive Plan update. The Council agreed by consensus to continue PP 08-0012 to March 24. 8. INFORMATION FROM THE COUNCIL 8.1 Councilor Information Councilor Olson mentioned the e-mail she received from an architect about the Council's facilities discussion. Councilor Olson asked about putting the Rassekh property on the agenda for discussion, as she thought Ms. Gilmer had requested direction. Mr. McIntyre mentioned that he had asked Ms. Gilmer to explain in a memo to the Council how the Rassekh property was tied to Luscher Farm, in light of the Council's decision in goal setting not to prioritize the Luscher Farm Master Plan. He recalled informing the Council at the time that there would be public pressure to allow certain activities or facilities on Luscher Farm. He indicated that the pressure was now here. Mr. McIntyre said that staff could bring back the Rassekh property and its use per the will of the Council. Councilor Moncrieff indicated that she asked the Palisades Neighborhood Association, which initiated the request, to take it back to the whole association for discussion. She suggested letting the association come forward under Citizen Comment, and proceeding from there. Councilor Jordan mentioned that staff received three proposals for the RFP on the Boones Ferry Road/Lake Grove Village Center plan. She said that the review team was happy with what it heard, and staff should be bringing that matter forward to the Council next month. 8.2 Reports of Council Committees, Organizational Committees, and Intergovernmental Committees 9. REPORTS OF OFFICERS 9.1 City Manager Mr. McIntyre reminded the Council that only five Councilors would be present for the Northwest Housing appeal. He mentioned that staff would open bids for the Phase 2 lake full work on March 19. 9.2 City Attorney Mr. Powell reminded the Council that it would have to select a presiding officer for the March 10 meeting, as Mayor Hoffman would not participate in the hearing, and Council President Jordan would not be present. He confirmed to Councilor Jordan that if she reviewed the tapes and materials from the March 10 meeting, she could then participate in the final decision. Mayor Hoffman explained that in order to prevent the appearance of impropriety, he was stepping down from participation in the Oakridge Housing appeal. He said that he had testified before the DRC on behalf of Oakridge Housing. He indicated that while he thought that he could render an unbiased decision based solely on whether the applicants met the narrow criteria, he believed that the issue of public trust was more important, and therefore, he would recuse himself. City Council Regular Meeting Minutes Page 16 of 17 March 3, 2009 10. ADJOURNMENT Mayor Hoffman adjourned the meeting at 9:35 p.m. Respectfully submitted, t')Alit( ) Robyn hristie City Recorder APPROVED BY THE CITY COUNCIL: ON A ril 1 2009 Jack D. an, r City Council Regular Meeting Minutes Page 17 of 17 March 3, 2009