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HomeMy WebLinkAboutApproved Minutes - 2010-06-22 SpecialCITY COUNCIL SPECIAL MEETING MINUTES June 22, 2010 Mayor Jack Hoffman called the special City Council meeting to order at 6:37 p.m. on June 22, 2010, in the City Council Chambers, 380 A Avenue. Present: Mayor Hoffman, Councilors Johnson (6:38 p.m.), Hennagin, Olson, Moncrieff, Tierney, and Jordan. Staff Present: Alex McIntyre, City Manager; David Powell, City Attorney; Robyn Christie, City Recorder; Denise Frisbee, Planning & Building Director; Morgan Holen, Asst Natural Resources Planner; Jonna Papaefthimiou, Natural Resources Planner 2nd Look Task Force Members: Jim Owens, Facilitator; Andy Harris, Greg McMurray, Todd Praeger, Amin Wahab, Cap Hedges, Ken Sandblast, Nancy Gronowski 3. STUDY SESSION 3.1 Planning Director Report on Second Look Task Force Report Mayor Hoffman welcomed everyone to the first study session on the presentation of the Second Look Task Force recommendations, following the Task Force's eight months review of the City's Sensitive Lands program. He thanked each Task Force member personally for all their time and effort, as well as their thoughtful deliberations during their meetings. He reviewed the schedule for the Task Force presentation and Council listening sessions. He explained the ground rules for tonight's meeting, noting that this was a Council study session with no public comment. He discussed the various ways in which the public could comment on the recommendations. STAFF REPORT Ms. Frisbee recalled that it was almost a year ago in July that the City, in light of the community concerns and questions, decided that it needed to review the Sensitive Lands program. She thanked the Task Force members for their tremendous service in conducting that review and in making findings and recommendations to improve the City's Sensitive Lands program. She reviewed the regulatory history and requirements underpinning the Lake Oswego Sensitive Lands program. She mentioned Statewide Land Use Planning Goals (mid-1970s) that required local governments to adopt programs to protect natural resources (Goal 5) and to protect stream corridors for water quality (Goal 6). She cited OAR 660 as spelling out the Goal 5 process in detail. She mentioned Section 4 of the Lake Oswego Comprehensive Plan (adopted in the mid- 1990s) as reflecting these same ambitions in its directives to "protect, restore, and maintain the stream corridors to maintain water quality," and "to protect, enhance, and maintain the wooded character and natural features of Lake Oswego that are prized by its citizens." She reviewed the history of the Sensitive Lands program in Lake Oswego (p.2), including the mapping begun after Metro's adoption of Title 3 in 1997 required cities to do so as part of implementing Goal 6. She emphasized that Metro's Title 3 required all cities within the Metro region to map stream and/or riparian areas and to protect them through the application of buffers and development restrictions. City Council Special Meeting Minutes Page 1 of 18 June 22, 2010 She indicated that, while Metro provided a model code approach for Title 3 compliance, it also allowed jurisdictions to tailor programs to match their community values. She explained that Lake Oswego's custom program chose to protect both riparian areas/stream corridors and tree groves. She reiterated that the Comprehensive Land directive to protect the wooded character of Lake Oswego was the impetus behind the protection of tree groves in the City's Sensitive Lands program. She discussed the Sensitive Lands program elements. She mentioned the Resource Conservation (RC) overlay for tree grove protection and the Resource Protection (RP) overlay for riparian and stream corridor protections, both of which applied to mapped properties included in the inventory. She indicated that the inventory included approximately 1,400 lots with some designation of sensitive lands; 1,000 of those were single family tax lots, or 7% of the city's individually owned residential properties. She commented that sensitive land designation on nearly 90% of the 1,000 lots involved only a portion of the property; however, the resources on the remaining lots covered 75% or more of the property. She said that the Task Force considered the different impacts on these two distinct groups. She referenced a data analysis prepared by Ms. Holen that provided a clearer picture of the properties impacted by the mapping and regulations. She spoke of the City's map update in the mid 2000s, which identified an additional 150 properties that staff believed should be added to the inventory. She pointed out that these properties have not yet been included on the maps. She mentioned that, also in 1997, Metro adopted Title 13, which was its effort to implement Statewide Planning Goal 5 (to protect habitat and to promote connectivity). She noted that Title 13 required compliance with Title 3 as a pre -requisite. She reported that, based on discussions with Metro staff, the City staff had anticipated achieving compliance with Title 3 and Title 13 with the City's current program plus a few changes to the existing code. She recalled that when the staff proposal to clarify and resolve outstanding issues in the code came before Council in 2008, the community raised a number of questions and concerns about the best way to protect resources and to meet the City's compliance obligations. She reviewed several of the questions raised that prompted this review. She mentioned concerns about regulatory flexibility, compliance with Metro, environmental ecological values, the City's promotion of voluntary compliance, education, and incentives, the non -designation of Oswego Lake and the Willamette River as resource protection areas, and improving the City's permitting and review processes. She noted the question of whether the City should be doing a better job of maintaining its own natural areas. She stated that staff has placed the mapping and the Metro compliance report on hold. Metro granted the City an extension to December 2010 to conduct a review of its program, which the Second Look Task Force undertook. She mentioned that there were also values questions raised by the community regarding fairness and the challenge of balancing individual interests versus the public good. She clarified that the Task Force did not address those questions, as they fell under the purview of the City Council. She stated that the staff's goal in working with the Task Force has been to provide the Council with solid information and an understanding of the compliance obligations, so that the Council could undertake the challenge of balancing interests and prioritizing competing and conflicting community values. She explained that staff wanted to provide the Council with the factual underpinnings and to help the members understand the continuum of regulation from no regulation to excessive regulation. The question then became where Lake Oswego should sit on that continuum in light of its community values. She described the City's efforts to conduct a transparent, thoughtful, and deliberative review process in this time of government distrust. She spoke of addressing all issues on the basis of factual underpinnings, while respecting the high degree of emotions surrounding private property City Council Special Meeting Minutes Page 2 of 18 June 22, 2010 issues. She commented that she thought that the Task Force was successful in conducting its program review within that framework. She spoke of the members' tremendous expertise, high knowledge base, and temperaments well-suited to addressing contentious issues. She introduced Jim Owens, Cogan Owens Cogan, who served as the Task Force facilitator. She reviewed his education, expertise, and experience in natural resources/conservation planning and facilitation. TASK FORCE REPORT Introduction, Jim Owens Mr. Owens indicated that two of the nine Task Force members could not attend tonight: Jim Johnson and Tim Mather. He concurred with Ms. Frisbee that the Task Force was a group of committed and impressive citizens, with whom he had the honor of working. He observed that any process associated with a controversial subject matter was subject to criticism itself. He addressed several of the criticisms of this process, including the group's expertise. He commented that the City put together a group of practitioners and property owners that he believed was exactly the right mix of persons for the Task Force. He remarked that one would be hard pressed to find a better suited group to undertake this charge. He described the process, which he noted was intentionally not a standard public process. He pointed out that the Task Force was a work group without any decision-making authority and advisory to the Planning Director. He commented that, while staff constantly reminded them to stay on target in terms of subject matter and time frame, they did respond to written public comments submitted at their meetings. He mentioned the public check-in that the Task Force members themselves conducted, which over 120 Lake Oswego residents and other interested parties attended. He stated that the criticism that the recommendations were steered by the Planning Department or the facilitator was not true. He recalled the frustration on the Task Force at the lack of input from the Planning Department. He emphasized that all the considerations and recommendations presented were generated by the Task Force; the members were not steered in any way. He described his function as a translator and organizer. He discussed the three phase process they used: information collection, organization and vetting of the information and input received, and development of the recommendations (pp.3-4). He mentioned site visits to some representative properties to see how these issues played out in reality. He said that, prior to the final draft of the recommendations, he interviewed each Task Force member to make sure that the recommendations adequately reflected everyone's concerns. He read the Task Force's five -point charge, which set the context for the recommendations (p. 2). He noted what the Task Force was not charged with (p.2). He commented that the Task Force did try to respond to questions and issues that fell within its charge. He explained that the Task Force members intentionally signed their names to this report with its 63 recommendations in order to verify that it was a consensus product. • Planning Context and Section 1, Nancy Gronowski Ms. Gronowski indicated that she has lived in Lake Oswego since 1987. She said that she was a landscape architect by training and currently working as a Senior Park Planner with Portland Parks & Recreation. She spoke of working for Oregon State Parks and briefly for Lake Oswego. She mentioned writing Portland's Urban Forestry Management Plan and a number of other master plans for both Portland and the State. She presented a graphic showing the overall planning context for the Second Look Task Force's work (p.7). She explained how the State, Metro, and City goals and regulations inter -related. She reviewed the key Task Force messages (p.2). She mentioned the value that the community placed City Council Special Meeting Minutes Page 3 of 18 June 22, 2010 on its natural resources, the uneven distribution and dynamic nature of natural resources, and Metro's required compliance with its Titles 3 and 13. She mentioned the Task Force's study of how many different cities responded to the Metro requirements. She observed that the programs were not fundamentally different, but they did reflect each city's individual response to the requirements, as Lake Oswego's did. She acknowledged that some people perceived Lake Oswego's program as overly restrictive. She indicated that they found good examples from other cities that Lake Oswego could emulate in addressing those issues. She discussed the Task Force's recommended improvements to the Sensitive Lands program (p.3). She mentioned employing a combination of regulatory, voluntary, and incentive measures applied to both public and private lands, and providing more flexibility to property owners. She spoke of adapting portions of Metro's model code and simplifying and clarifying the City's code provisions and permit application process. She presented Section 1, the City leading by example (p.8), and its three related recommendations of creating programs for both public and private lands. • Section 2, Greg McMurray Mr. McMurray stated that he was a scientist with graduate degrees in freshwater ecology and oceanography. He mentioned his work experience with the State of Oregon in natural resources management and as a consultant. He indicated that he had a sensitive lands designation on his property. He presented Section 2, Designating Sensitive Lands, and the two subheadings of the designation process and modifications to the Sensitive Lands map (pp.8-14). He explained that the current designation process involved satellite imaging and limited ground truthing of the resources. He pointed out that delineation was different from designation and conducted at a property owner's request to identify the specifics on the ground that development would impact. He discussed the first issue of the use of the habitat assessment score (HAS) to assess resource values (p.9). He noted the Task Force's finding that the HAS score was reliable, and its recommendation that the City continue using it until something better became available. He discussed the second issue of needing better designation (pp.9-10). He noted the recommendation to review and refine the mapped tree groves, and not to include non-native tree groves as sensitive lands. He discussed the third issue of ditches (pp. 10-11) and the public concern about protecting ditches with little or no resource value. He noted the Task Force recommendation to adopt the Department of State Lands' definition of ditches, since the City Code did not have one, and to re- evaluate questionable areas. He discussed the fourth issue of mapping properties outside the City boundary (p.11). He acknowledged that the City had no jurisdiction over those lands, but, since the Task Force saw value in advising property owners prior to annexation about the possibility of sensitive lands on their properties, the group recommended continuing such mapping. He commented that natural resources management was becoming information -based. He discussed the sixth issue regarding water quality management of the Lake Oswego watershed (pp. 12-14). He presented the recommendations for Oswego Lake and the Tualatin and Willamette Rivers, including assessing them for designation as Goal 5 resources, as Metro has currently not designated them as significant resources. He discussed the seventh issue of moving toward a watershed -based approach to water quality management (p.14). He mentioned that most jurisdictions were moving in this direction. He presented the three recommendations to move the City towards integrated management of its City Council Special Meeting Minutes Page 4 of 18 June 22, 2010 watershed. He noted that watershed management councils qualified for Oregon Watershed Management Board funding. • Section 3, Part A, Ken Sandblast Mr. Sandblast stated that he has lived in Mountain Park since 1994 but he did not have sensitive lands on his property. He mentioned his service on the Planning Commission for eight plus years through the late 1990s. He commented that Ms. Frisbee did a good job of summarizing the history of the program. He indicated that professionally he was a land use planning consultant with 15 plus years of experience in dealing with municipal land use regulations. He referenced the staff's breakdown of the Task Force recommendations into code fixes, code improvements, and big picture issues (pp.3-5, Staff Report). He explained that his presentation related to the code fixes, which would have the most immediate impact on 75% of what staff dealt with on a day-to-day basis in regards to the Sensitive Lands program. He mentioned that other sections of the report also contained recommendations for immediate code fixes. He explained that right now the City's program was a 'one size fits all' approach, whether applying the code to a single family residential lot or to a commercial property. He argued that they had to make differentiations in the code between different situations. He mentioned that he and others had advocated for code flexibility as the key to improving the program. He presented Section 3, Providing Flexibility, Part A — Protection Measures (pp. 15-17). He pointed out that the Task Force did not recommend removing the existing RC and RP designations but dealt more with exempt uses and outright uses allowed in the buffer. He noted the two-tiered approach of the clear and objective Safe Harbor approach and the discretionary alternate program approach. He indicated that the basis of the discretionary alternate program approach would be the net environmental benefit approach. • Section 3, Parts B and C, Andy Harris Mr. Harris indicated that, after earning a degree in natural resource planning and interpretation, he worked for the City of Lake Oswego Surface Water Management Department for 27 years before moving into the private sector in 2005. He presented Section 3, Part B -- Net Environmental Benefit Approach (pp. 17-18). He explained that this approach provided a clear and objective way to look at a resource in terms of its function. He described how the approach would work in riparian area, noting that a person could use a variety of different techniques to offset development impact. He presented Section 3, Part C, Program Incentives (pp. 18-19), noting several possible programs to help citizens deal with managing their sensitive lands. • Section 3, Part D, Admin Wahab Mr. Wahab indicated that he lived in Lake Grove growing up in the 1970s and early 1980s. He said that he had degrees in geological sciences with seven years experience working for the Oregon Water Resources Department. Currently he worked for the City of Portland Bureau of Environmental Services, managing the Tyron Creek watershed program. He mentioned that he looked at the Task Force's work from the eco -regional perspective. He presented Section C, Part D, Highly Constrained Sites (p.19). He noted that there were a limited number of highly constrained sites. He explained that using a comprehensive watershed planning process that integrated all the means of conveying storm water, both natural and manmade, into the review process would help make the discretionary review process easy and objective. This information would allow staff to balance the value of resources on specific parcels within the broader context of the watershed. He mentioned the possibility of the City acquiring a site if the review process did not provide the flexibility needed to allow certain developments on these highly constrained lots. City Council Special Meeting Minutes Page 5 of 18 June 22, 2010 • Section 4, Cap Hedges Mr. Hedges stated that his background was advertising and communication. He indicated that he grew up in Lake Oswego on what was now Lakeview Blvd. He mentioned that he has dealt with the City Planning Department and the building and development community over the past five plus years of trying to develop property with sensitive lands on it. He observed that there were negative perceptions about the way that the Planning Department treated the permitting process and the difficulties people encountered in trying to get through it. He presented Section 4, Improving the Permitting Process (pp.20-21). He mentioned that the public perception that a citizen had no recourse if staff decided that the code blocked his/her development led to the Task Force recommendation to establish an ombudsman to work with the Planning Department and the property owner to help find reasonable solutions. He recounted his investigating why one builder preferred to work in Beaverton or Hillsboro over Lake Oswego. He reported that Beaverton took a more user-friendly and positive approach in working as a team with the end user in order to accomplish his/her goals while protecting the environment. He mentioned the public perception that some members of the Planning Department felt that the feelings of the community were less important than their charge. He spoke of re- orienting the Department towards a customer service orientation. He commented that another area for improvement was permit fee reductions and waivers, as currently they were high. • Section 5 and Complementary Recommendations, Todd Praeger Mr. Praeger stated that he lived in Lake Oswego and worked as a planner and City arborist for the City of Tigard. He mentioned his past experience as an arborist for the City of San Francisco and research work on urban forest issues with the US Forest Service and University of California. He presented Section 5, Increasing awareness of the program (pp.21-22). He mentioned that the comments that the Task Force heard most frequently indicated a public unawareness of the program. He reviewed the recommendations that the City regularly provide outreach materials to sensitive lands owners in order to avoid another surprise in 10 years, and that it promote the use of disclosure statements during the property selling process. He presented the Complementary Recommendations, (pp.22-23) regarding controlling noxious or invasive vegetation. He mentioned that the Task Force heard from a natural resource expert that Lake Oswego had more of a problem with invasive species, such as ivy and blackberries, than other cities in the Metro area. He pointed out that invasive species did not respect property boundaries, and therefore the Task Force recommended a community -wide approach to handling the problem. He spoke of removing barriers in the code to removing invasive species and providing incentives for volunteer removal of invasive plants. He described invasive plants as the greatest threat to the City's urban eco -system, other than development pressures. Mr. Owens noted that the Task Force's supplementary documentation was extensive. He reiterated that the Task Force was an impressive group of citizen volunteers who developed this comprehensive set of recommendations. COUNCIL QUESTIONS Councilor Tierney asked which recommendations the Task Force considered to be the top three recommendations. Mr. Owens mentioned short-term code fixes. Mr. Sandblast concurred. He identified amending the code to allow the exempt uses that allowed people to use their properties, dealing with the ditch issue, and capturing flexibility in the code. Mr. Praeger agreed with the importance of getting away from the 'one size fits all' concept and allowing staff more flexibility. Mr. Ow ns identified taking advantage of the code audit process to simplify the code and providing incentives for the sensitive lands prop rty owners to help them protect the resource, given that sensitive lands represented only a small portion of the property in the city. Mr. Sandblast City Council Special Meeting Minutes Page 6 of 18 June 22, 2010 concurred. He pointed out that the construction buffer (p.16) currently in the code was essentially a buffer to a buffer, which was not necessary. He spoke of developing a quantified clear and objective standard for those wanting to remodel their home that did not require an expensive process. Mr. Praeger commented that another important part was the City taking a leadership role in managing its sensitive lands. He observed that it was difficult to regulate private property if the City did not invest in its properties. Mr. McMurray mentioned that the Task Force saw these recommendations as complementary, as opposed to competitive in a resource -limited environment. He suggested parsing the recommendations in order to separate them into those requiring resources and those not requiring resources. Then, the City could develop a priority list for those recommendations requiring resources. Councilor Tierney asked if the Task Force discussed those properties in the community that did not develop at the same time as neighboring properties and were now designated with tree groves, which limited the amount of development that they might otherwise have seen. Mr. Owens answered that the recommendations on highly constrained lots addressed that issue. He noted the inclusion of a discretionary process if the current standard did not work. Mr. Sandblast said that the Task Force did not discuss the philosophical issue of property owners who had tree groves because they did not develop their properties. He indicated that the only issue they discussed related to that was whether people at the time of purchase were aware of resources on the property. Councilor Jordan expressed her appreciation for the Task Force's work. She noted in particular its work on providing flexibility in protecting the environment. She asked if the mapping methodology originally mapped a contiguous resource across properties, or if it looked at resources on a lot -by -lot basis. She mentioned her impression from the citizen comments that the City used an individual approach, and her understanding from staff that they mapped resources over a broad, contiguous area, which was composed of individual tax lots. Mr. Sandblast recalled Mr. Harris stating that the resource was mapped, irrespective of property lines. He pointed out that the 'green blobs' on the maps came from the GIS information indicating the presence of a tree canopy or a drainage way, which could span many properties. Councilor Jordan commented that she understood covenants as contracts in which each party received something. She noted that the City received the resource identification but she wondered what the property owner received in exchange. She remarked that she did not see the Task Force addressing the question except by suggesting incentives and reduced fees. Mr. Owens pointed out that property owners with tree groves could develop up to 50% of the tree grove. He mentioned the recommendations for increased flexibility in riparian areas by allowing more outright permitted uses. Mr. Sandblast observed that the notice of development restriction did not use the word covenant. He recalled the Task Force discussing the issue because, on the one hand, they repeatedly heard about deed altering land use restrictions, which Metro did not require, and on the other, people said that they did not know about sensitive lands on the property because there was no notice. He indicated that the City currently provided notice for tree groves but not for riparian areas. Mr. Hedges indicated to Councilor Jordan that the disclosure notice he mentioned was in addition to the City's current practice. He noted the Task Force recommendation that the Council consider tax or other incentives. Mr. Owens clarified to Councilor Johnson that the Task Force saw the ombudsman as someone to help property owners through the permitting process but it did not agree on whether this position should work for the Planning Department or the Council. He indicated that the City of Portland had a well -funded ombudsman position, which suggested looking at the fiscal impacts of such a City Council Special Meeting Minutes Page 7 of 18 June 22, 2010 position. Mr. Hedges mentioned the concept that this ombudsman might also work in other areas of the City in a quasi -independent role. Councilor Johnson commented that, while it seemed like an ombudsman might correct many of the issues in getting the code to work better, she speculated that Beaverton did not have one because its code worked so well that it did not need one. She wondered whether that should be Lake Oswego's goal. Mr. Hedges agreed that that would be the ideal. He commented that Beaverton's approach seemed to be more proactive, even at the level of semantics. He mentioned their use of 'habitat - friendly' versus 'sensitive lands restrictions.' He suggested that making the negatives into positives could influence the culture of the department and the planning process to a more dynamic culture of service to the community and to the environment. He observed that a culture totally dedicated to protecting the environment at all costs set up a winner and a loser scenario. Ms. Frisbee clarified that Beaverton, Tualatin, and Tigard were in the Clean Water Services District, which regulated sensitive lands on behalf of the cities. Therefore, a development applicant had to get approval from Clean Water Services, and not from the cities. She agreed that Beaverton's approach of habitat -friendly practices and incentives was something that Lake Oswego could emulate, yet the Beaverton staffers told Lake Oswego that they did not use it much because people received their sensitive lands development permit from Clean Water Services. Mr. Owens indicated to Councilor Johnson that Clean Water Services had the model watershed - based program in the country. The District had more financial resources available to it than any other single jurisdiction because it used rate -based funding to finance it. Ms. Frisbee mentioned that Metro carved out a separate approach for Clean Water Services because it could show a dedicated source of long-term funding (millions of dollars) to accomplish outreach, property acquisition, and larger scale stream restoration efforts. Councilor Hennagin thanked the Task Force members for the hours of service that they provided to the City. He mentioned that his experience with ditches in Oregon has been that one dug a ditch to divert water away from something, which water would eventually go into a creek. He asked how they could exempt a ditch in light of the water quality protection requirements. Mr. Harris explained that most ditches had only a water quality function of carrying drainage water, which the Public Works Department and drainage standards handled and Sensitive Lands did not regulate. Sensitive Lands regulated only those ditches with a stream function, such as when a stream intersected with a ditch. Councilor Hennagin asked how one could build a deck into a riparian area without affecting the integrity of the riparian area. Mr. Sandblast explained that they had been looking at an existing building in the buffer zone, and not one in the actual riparian area. Ms. Frisbee pointed out that the City currently had 'no touch' buffers, and the recommendations suggested adding flexibility to the code to allow some uses in the buffer area, as well as providing information on best management practices for both the buffer and the riparian areas. Ms. Frisbee indicated to Councilor Hennagin that the net environmental benefit came up under the separate permit review process recommended by the Task Force and applied primarily to much larger developments. She commented that, in recommending small buffer intrusions, the Task Force recognized that the Metro model code allowed those, and that doing so offered flexibility to citizens in concert with outreach and education on better voluntary practices. Mr. Harris added the caveat that the flood plain function of a stream lay in the buffer area, which was a consideration in allowing some uses in the buffer. Councilor Hennagin cited the report's reference to allowing more flexibility with a de minimis standard, but he questioned the 200 to 500 square foot size mentioned. He wondered whether a 150 square foot size was more reasonable. Mr. Harris explained that the Metro model code had a 200 foot de minimis standard, and other cities, such as Tigard, had up to 500 feet. He noted the Task Force recommendation that anything over 200 feet be accompanied by commensurate City Council Special Meeting Minutes Page 8 of 18 June 22, 2010 mitigation. Mr. Sandblast pointed out that the Metro model code's definition of development used a percentage of the area for a buffer, as opposed to a hard number. He recalled that the Task Force decided that a hard number would be better because of the wide variety of buffer and lot sizes. Councilor Hennagin clarified that his concern was two citizens in similar situations getting different rulings from the Planning Department because of flexibility, and one party complaining of unfairness. Councilor Olson thanked the Task Force, remarking that many of its common sense recommendations were welcome suggestions in line with what the Council has been hearing from citizens for the last year. She commented that the broader policy issue of what the City should regulate and protect and how it should protect it was still an issue that the Council needed to discuss as part of this process. Mr. Owens indicated to Councilor Olson that he did not recall their research finding that any jurisdiction other than Lake Oswego that regulated tree groves within the Urban Growth Boundary (UGB). He said that they did discover that Lake Oswego had the smallest protective buffers of any jurisdiction in the region, which was a trade off for protecting tree groves. He commented that a number of jurisdictions were currently looking into that protection, such as Portland, Tigard, and Clackamas County. Councilor Olson clarified that Tigard and Clackamas County were looking at tree codes. Councilor Olson referenced the code auditors' comment about significant advances in resource protection since the City made the choice to regulate significant tree groves, and their recommendation that the City look into best management practices and updated approaches to resource protection before making major changes to the City code. Ms. Gronowski indicated to Councilor Olson that the Task Force did not get into the level of detail of establishing the performance standards called for in Title 13 (p.7). Ms. Frisbee clarified that their research did not find any city in the Metro area that has developed those performance standards. Instead, the cities all relied on regulatory practices. Councilor Olson asked Mr. McMurray to expand on the recommendation to better define tree groves. Mr. McMurray explained that he referred to designation based on an on the ground survey, as opposed to the satellite photos, which could be several years old. Ms. Frisbee clarified to Councilor Olson that the `remote sensing' used by Metro referred to aerial photos. She explained that Metro gave these aerial photos to the cities as the 50,000 foot level view of its resources and told them to refine the resource map with an on the ground review of the properties. She indicated that the City has used the HAS (Habitat Assessment Score) evaluation to do that refinement. Mr. Praeger indicated to Councilor Olson that he did not know why Lake Oswego was reported as having more of an ivy problem than other communities in the region. He said that Christie Galen, who did HAS assessments around the state, told the Task Force that. He speculated that it had to do with invasive species originating as ornamental garden escapees, and Lake Oswego having a longer history of ornamental gardening than other jurisdictions. Mr. Wahab mentioned that Portland had an active vegetation management program that invested a lot of money in the management of invasive species, as did Clean Water Services. Councilor Olson commented that her hypothesis had also been that Lake Oswego did not have an active management program. Councilor Olson referenced Mr. Sandblast's comment about the Catch-22 that the City found itself in with respect to the restrictive covenant. She pointed out that only 62 of the 1,500 properties currently mapped had the restriction recorded at the County, which meant that it was not serving the purpose of notifying potential purchasers. She questioned the need for it, given that Metro did not require it. Mr. Sandblast commented that the 62 properties with the restriction recorded at the County were likely those properties that went through a tree grove delineation process and designated which City Council Special Meeting Minutes Page 9 of 18 June 22, 2010 50% of the delineated tree grove was protected. He pointed out that whether the City continued with its notice of development restriction was a policy level decision for the Council to make. He observed that it was done for the RC overlay because the City Code required it, and for the RP overlay because it conveyed information. He mentioned his appreciation of Ms. Frisbee earlier clarifying that this notice was different than the Task Force recommendation that the City have a way to provide information regarding these designations to the parties involved in a property exchange. He emphasized that the extensive education and outreach recommendations were in response to the lack of public awareness of the program. Councilor Olson reiterated that, even though the 62 recordings were the result of delineations, the fact that there were only 62 out of 1,500 properties delineated indicated that the notice was not accomplishing the goal of notification. Ms. Frisbee clarified that staff received only eight to ten delineation requests a year; these 62 delineations came in over the last five years. She explained that staff required recording the notice at the County only when someone came in asking to divide or develop the property; the purpose was to provide notice to prospective purchasers about the restrictions. She concurred with Mr. Sandblast that this was a policy decision. She confirmed that it was not a Metro requirement, yet many jurisdictions did it in order to avoid a surprise at the Planning counter. She pointed out the disconnect between asking the Planning Department to promote customer service and yet leaving it to staff to inform a citizen asking for a permit of this surprise. Mr. Powell referenced Councilor Jordan's comment regarding covenants. He said that a covenant most commonly meant a promise by the property owner that went beyond the code requirements, or it meant something achieved in exchange for a permit. He mentioned the current code language that said in order to put property owners and occupants on notice, the applicant would execute a covenant running with the land. He pointed out the irony that the language used the word 'covenant,' but what was promised was no more than what the code required anyway. He commented that the Council could call the document 'a notice of restrictions under the code' as opposed to 'a covenant' and keep it in its toolbox. He speculated that the language change might change some of the perception that the document altered the deed or devalued the property. Councilor Olson commented that she preferred to see the Planning staff, City Code, customer service, and City approach negate the need for an ombudsman, although she appreciated the recommendation. She referenced the sensitive lands data that Ms. Holen prepared for the Task Force. She asked why the data did not include the required protection buffers, the 1 B resources and parcels with less than 300 square feet of designated resource. Ms. Frisbee explained that it was not possible to figure out less than 300 feet on that kind of analysis using the GIS system. She said that they did not know which 1 B sites would end up on the inventory or what the buffers were until staff has refined the map on the ground. Ms. Holen indicated that she would type up a written report for the Council. Councilor Olson referenced p.226 in the notebook provided to the Council. She asked for more discussion on the statement that "the provisions of the Sensitive Lands code did not apply to residences located within the boundaries of a partition, a subdivision, a planned development, or a lot line adjustment approved prior to August 21, 1997." She commented that that would exclude many properties, including those with already developed backyards. Mr. Powell noted that the language continued with the condition that these properties "would not be included if the resource was identified and protected pursuant to the regulations in effect at the time of approval." He indicated that the intent of this language was to grandfather in properties regulated under the old Lake Oswego Development Standards 3 and 4, rather than changing them to the Sensitive Lands Ordinance. He commented that this provision did not speak to the question of whether the City could now designate and delineate a resource in an old subdivision developed before the City had any resource protections in place. City Council Special Meeting Minutes Page 10 of 18 June 22, 2010 Mr. Powell indicated to Councilor Jordan that a conservation easement of some sort would be either on the deeds of properties with resources regulated under the older standard, or on the subdivision plat. Councilor Moncrieff commented that there were two groups of affected property owners: those with sensitive lands already designated and those with the potential for designated sensitive lands. She asked if the Task Force's recommendations around code changes would allow more uses within the conservation area on properties with sensitive lands already designated. She observed that those recommendations combined with the flexibility mentioned on p. 16 created a balance of a concrete Safe Harbor process with a discretionary review process. Mr. Owens indicated to Councilor Moncrieff that he did not think that these recommendations would address all the concerns of those citizens with current sensitive lands designations on their properties. He observed that there was divisiveness in the community on this issue, as they also heard from those who feared that the recommendations went too far. He commented that the Task Force heard loudly the request for no sensitive lands overlays on private lands. Mr. Sandblast indicated to Councilor Moncrieff that the Task Force recommendations did do a better job of satisfying the concerns that the Task Force heard from residents with sensitive lands designations than simply adopting the Metro model code would have done. He pointed out that the Task Force was not charged with considering the question of whether or not the City should designate resources; that was a Council policy question. The Task Force's charge was to look at making the existing program better. He emphasized that these recommendations did improve the existing program per the Task Force charge because they acknowledged the reality of what the City has learned over the last 10 years of implementing the program. He argued that adopting the model code would not have worked for Lake Oswego because the community needed a program specifically tailored to its issues and concerns. He mentioned the model code elements that the Task Force picked out as applicable to Lake Oswego, such as the exempted uses and the de minimis standard. He confirmed to Councilor Moncrieff that these recommendations would go a long way in increasing flexibility. He commented that simply getting out of the `one size fits all' mentality and recognizing what 75% of the City staff resources were spent on was a huge improvement. Mr. Owens observed that the recommendations addressed public education, incentives, etc., along with code flexibility as a complete package. Councilor Moncrieff referenced the second group of those with the potential to receive a sensitive lands designation. She mentioned her understanding from the report that the Task Force was satisfied with the HAS and ESEE analyses. She asked if the Task Force was comfortable with the recourse available to those citizens challenging the designation. Mr. Sandblast recalled that staff asked the Task Force to look at that issue. He referenced p. 12 in the Task Force Report, Issue 5, Recommendation 2, in which the Task Force recommended completing the development code revisions before adding any resources to the inventory map. He commented that having a clear and objective method available for the next set of sensitive lands properties was the obvious thing to do. Councilor Moncrieff thanked the Task Force for its work and excellent recommendations. She stated her understanding that the Task Force consensus was that it would be good to implement the code changes as soon as possible because it would increase the flexibility for the existing sensitive lands owners. She mentioned that she liked Mr. Hedges' comments about taking a more user-friendly and positive approach in working cooperatively with the land owners. Mayor Hoffman referenced Mr. Owens' comment that the Task Force heard loud and clear that a number of Lake Oswego residents did not what sensitive lands restrictions on their property. He asked if the Task Force found any path towards achieving that request while doing its research. M . Gronow ki indicated that, based on their research, sensitive lands restrictions were not an City Council Special Meeting Minutes Page 11 of 18 June 22, 2010 option; these regulations were a fact of life in Oregon with its Statewide Planning Goals and Comprehensive Plans. Mr. Praeger pointed out that, as Clean Water Services increased its resource investment in sensitive lands to maintain, protect, and acquire properties, the cities had more flexibility in their regulations. He observed that, while this did not eliminate any regulations, it did help shift the balance. Mayor Hoffman asked if the Task Force found any information on how other cities addressed the fairness issue. He referenced the comment that natural resources were not distributed equally in the city. Mr. Owens remarked that the fairness issue has been on the table since zoning began. He observed that incentives and restriction levels were both part of the balance that jurisdictions were trying to achieve. He mentioned that the many jurisdictions used the Metro model code because it provided clear and objective standards so that everyone knew what the rules were, yet allowed an alternative process if those did not work for a community. Mr. Hedges mentioned that the culture issue came up based on the input that he has received from builders regarding what needed improvement in the Lake Oswego process. Mr. Wahab pointed out that there was a heavy concentration of overlay zones on the Westside of Portland because that was where the resources were. Mayor Hoffman encouraged the Council to raise policy questions in this second time around the table. Councilor Tierney asked if a City program of regulations, incentives, and education focused on watershed management would have a more positive net natural resource benefit than the current program. Mr. Praeger recalled that the Task Force kept coming back to the need to look at the city watershed and the impact on the overall watershed of actions on both sensitive lands and non - sensitive lands. He commented that everyone agreed that "greening up" the overall development code to help reduce the downstream impacts would make a difference. Mr. Wahab answered the question 'yes.' He noted that a comprehensive watershed plan would give the City a handle on all the resources inside and outside the sensitive lands. He commented that the benefit to the City was the ability to review development applications in light of the watershed plan and to protect the resources as much as possible throughout the community. He pointed out that without that context, the City focused on sensitive lands as protected islands. He mentioned that having the broader view could allow protection of tree groves in areas without the overlay zones, which would relieve the pressure on the islands protected by the overlays. Mayor Hoffman recessed the meeting at 8:54 p.m. for a break. He reconvened the meeting at 9:05 p.m. Councilor Tierney asked if the Task Force's review of the Environmental Social Economic Energy (ESEE) analysis found that the analysis would allow latitude in making decisions about a property with a high HAS score and economic and social implications that needed balancing. Mr. Owens explained that the ESEE analysis was designed as a balancing act. He commented that local jurisdictions had significant discretion in balancing the four considerations in determining whether to protect a resource or not. Councilor Tierney commented that the report he read did not seem to strike a balance between the four factors but was rather written from an environmental perspective. He asked if the City really used ESEE in its processes. Mr. Owens stated that using ESEE was a requirement. He commented that the art of preparing ESEE analyses has progressed significantly over the 15 years since the adoption of the Goal 5 administrative rules. He reiterated that it was a subjective balancing act. He mentioned that many jurisdictions used their Planning Commission to review ESEE analyses for a second look at them. Mr. Sandbla It mentioned that he too sat on the Planning Commission when the Sensitive Lands program went through. He said that he could not recall even one contested case where the property owner brought back a HAS functional value or an ESEE analysis. He commented that a City Council Special Meeting Minutes Page 12 of 18 June 22, 2010 property owner not providing alternate expert analysis to legitimately contest the expert analysis provided by the City staff did not leave decision makers much to do other than to accept the evidence on hand. Mayor Hoffman recalled that Metro did an ESEE analysis of all the different kinds of zoning within the region when it went through Title 13 and developed the different levels of habitat conservation areas. He mentioned Metro's ESEE analysis comparing regionally significant habitat in neighborhoods and the economic aspects of neighborhoods. He indicated that Metro found that all regionally significant resources within the neighborhoods were high habitat conservation areas. Councilor Olson asked if that included tree groves. Councilor Tierney suggested the appeals process and its basis as a topic for future discussion. He mentioned his impression of the process, based on Mr. Sandblast's description, as 'us against the world,' in that the City paid for the experts and their evidence was insurmountable unless a citizen brought in his/her own experts. Councilor Tierney asked how staff would find any new unmapped resources, beyond those identified in 2007, in an urbanized community like Lake Oswego, which was becoming more urban and not more natural. Ms. Frisbee commented that there was fluidity to the resource designations, especially tree groves, because things changed. Therefore, the City needed to continue to assess resources over time. She noted that the City's maps matched Metro's maps. She indicated that Metro staff told the City staff that the City needed to stay on top of resource assessment moving forward and to investigate any better avenues for resource assessment that became available. Mr. Owens commented that it was a two-way street, in that the City might lose some resources over time and consider removing a sensitive lands designation, if appropriate. Ms. Frisbee speculated that the original 1997 effort simply ran out of steam after identifying the 1,450 properties included on the inventory. The 2007/2008 staff work identifying an additional 150 properties completed that process. Councilor Tierney asked if continual updating might have the unintended consequence of deterring people from enhancing the natural state of their property over concerns about falling under these regulations. Ms. Gronowski commented that she did not know if it would. Councilor Jordan pointed out that sensitive lands protections protected large contiguous areas or entire stream corridors. A property did not suddenly become sensitive lands when a property owner planted trees on his/her lot. Mr. Hedges cited an example of the Weibel family planting fir trees on their land 50 years ago in order to enhance their back yard, and now their couple of acres was under sensitive lands restrictions. Councilor Jordan indicated that her concern was sending a mixed message to the citizens about what could happen on a 5,000 square foot lot if the owner planted a lot of trees. She reiterated that she did not see the regulations applying to a tree grove standing in isolation on a lot, surrounded by properties with landscaping and gardens. Councilor Tierney reiterated his concern that 'continual' updating meant that this process was endless. Mr. Sandblast referenced the consideration on p.12 that described this as an ongoing process because land use was not static. He noted the increasing information available from GIS and LIDAR mapping systems that would help in creating a holistic watershed -based program. He commented that, while water quality was important, the Task Force focused on land use. Without a watershed -based approach that integrated the various aspects of the regulatory world, land use needed ongoing updating. He cited the Clean Water Services watershed plan as an example of an integrated program. He mentioned the Task Force's view of big picture watershed -type planning as critical, given that 80% of the town drained into Oswego Lake. Councilor Jordan recalled the specific annexation case that caused the Council concern and encouraged the second mapping effort. The property owner left 50% of the delineated tree grove standing but he did not maintain the contiguous tree grove and cut down the trees that were City Council Special Meeting Minutes Page 13 of 18 June 22, 2010 connected to the other trees. She spoke to working with property owners in similar situations to keep the contiguous 50%. Mr. Sandblast indicated to Councilor Tierney that the consideration on p.11 stated that, while the City had no jurisdiction outside its boundaries, it needed to collect information on natural resources within its Urban Services Boundary (USB) for long-range planning purposes. He explained that currently if an annexation request involved a property with a significant resource, the request went to the Planning Commission for the RP or RC designation process. The City had a separate process to deal with a property owner who did something to a known resource before requesting annexation. Councilor Tierney clarified that his concern about endless revisions related to Issue 5, Consideration 4 (p.12). Mr. Harris commented that, as the City moved to a watershed -based approach, the community would start to think in terms of how all parts of the system worked together, as opposed to focusing on the impacts of sensitive lands on individual properties. Mr. Owens noted the Task Force's statement that it saw no need for any mapping modifications at this time, but it did recognize the periodic reviews mandated under the statewide planning goals and the City's Comprehensive Plan. He cited further definition of the `tree blobs' on the map and the designation of Oswego Lake as a resource as examples of periodic review. Mr. McMurray observed that a number of things could change quickly with respect to the protections needed. He mentioned daylighting streams, drivers outside the community, such as the Endangered Species Act, and the increasing information that would include the tree species (related to wildlife habitat). He commented that HAS scores could change rapidly because that system looked at factors other than tree canopy, such as wildlife food and access cover in the undergrowth. Undergrowth grew more quickly than a tree grove. Councilor Moncrieff mentioned her concern that the residents feared and avoided sensitive lands overlay designations. She observed that the more zoning that a city had, the higher the property values. She discussed her goal of making the sensitive lands code flexible, fair, and as reasonable as possible, using the Task Force recommendations, in order to make it something that should not be avoided or feared. She pointed out that the Lake Oswego community as a whole valued resources, and that the goal of the Sensitive Lands Ordinance was to protect and grow the resources. She spoke of figuring out how to make the overlays appealing to residents in order to encourage willing compliance. She referenced the communications mentioned by Mr. Hedges. She suggested providing incentives and assistance in such a way that people wanted the designations because they knew that they could still enjoy and use their yards. Councilor Hennagin mentioned that the two-tier system for development caused him concern in wondering how a resident would be knowledgeable enough at the initial application stage to know which track to select. He acknowledged that the more flexible standards for development were aimed at the highly impacted properties. He asked whether a resident seeking development on a property without a sensitive lands designation could opt for the more flexible system. Mr. Sandblast commented that he agreed with Councilor Olson that the City would not need an ombudsman if it had a system that functioned correctly. He observed that part of the system functioning correctly was educating people to understand their choices. However, under the current 'one size fits all' system, staff had no choice but to direct the applicant down the stipulated channel. He pointed out that, while the alternate review process in the two-tiered system was more uncertain, discretionary, expensive, and time-consuming, it did give staff a vehicle to work with in assisting the applicant. He reiterated that 75% of what the staff dealt with related to replacing decks or house additions. These applicants should have a clear and objective way to achieve their goal that was not expensive and did not require experts, which option was not available right now. City Council Special Meeting Minutes Page 14 of 18 June 22, 2010 Mr. Harris commented that he thought the Task Force's intention in adding incentives, such as the discretionary track, had been to help balance the additional restrictions on sensitive lands owners, as opposed to making those options available to anyone. Mr. Sandblast referenced the fully encumbered situation mentioned earlier. He said that the Task Force decided that the existing practice of the biggest house on the smallest lot was a clear and objective way to deal with that situation. He commented that, with only 50 to 60 of these heavily encumbered properties in town, staff (as available) could create an analysis of what the biggest house on the smallest lot on a given property might mean to the property owner as an informational piece. He observed that they needed to balance both flexibility and certainty in the code. Mayor Hoffman indicated to Councilor Hennagin that Ms. Frisbee's staff report categorized the recommendations in terms of those affecting the budget and those that staff could implement immediately. Councilor Olson asked to discuss the policy issue of updated mapping. She commented that Lake Oswego, as the only jurisdiction that mapped and protected tree groves, would likely add properties to its map during a Comprehensive Plan update when other jurisdictions would only tweak their maps to refine riparian boundaries. She argued that the City mapping upland tree groves caused the uproar because Lake Oswego's map updates were not like anybody else's map updates. She asked to discuss the issue of spotty mapping of properties within a resource in practice when the concept was to map the large contiguous resource. She attributed Beaverton's smoother process to its not regulating upland tree groves. She described the question of what resources the City protected and how it protected them as the major policy issue. She argued that the source of many of the City's problems was its regulation of upland tree groves. She asked for more information on how the City applied the ESEE analysis, and whether it really looked at the social and economic effects of designating a property, as Councilor Tierney spoke to. Mayor Hoffman mentioned that the Title 13 ordinance contained a good explanation of the ESEE analysis that Metro did for the entire region, which served as an example of how the ESEE analyses worked. Councilor Olson concurred but argued that the Metro analysis did not apply to what Lake Oswego was doing because Metro did not require protection of upland tree groves within the UGB. Councilor Olson commented that she thought the recommendation to create a no fee process for landowners to request sensitive lands map corrections was great. She asked if staff intended to let the original 1500 mapped properties request a correction. Ms. Frisbee explained that the City sent out the Natural Resource Planner to evaluate a claim that a property did not have a natural resource on it. If the Planner agreed, then staff told the property owner that they would correct it at the next map update, which was originally envisioned as every 10 years. She indicated that staff thought that annual map updates would be a better practice, but they had to limit the number of requests per year because of staff resource limitations. She remarked that, based on the past, staff did not expect many requests, but they thought that a no fee corrections process and more efficient processing would be more responsive to community needs. She noted that the City did not have the staff resources to do constant monitoring and mapping, but staff would do that work in conjunction with periodic review and a Comprehensive Plan update. She mentioned the staff proposal for an appeal of the staff decision to the Planning Commission and City Council, instead of to LUBA (appeal of a Comprehensive Plan map change). Councilor Olson commented that she liked that idea. She indicated that she understood the Task Force discussion of Oswego Lake serving as flood storage and not being a land use as meaning that the lake was not a resource. She noted the recommendation to assess the designation of Oswego Lake as a Goal 5 resource and a land use needing zoning regulations. She asked for further discussion of those two statements. City Council Special Meeting Minutes Page 15 of 18 June 22, 2010 Mr. Owens reminded the Councilor that the Task Force had not been of one mind on that issue. He recalled the Metro staff saying that they did not include it on the region wide map because it was a manmade feature without any particular land uses on it. He recollected that Task Force members argued that there could be land uses in the lake that might need regulation. He indicated that the Task Force felt the issue merited more discussion, as it was not comfortable with the existing situation, but the discussion of that policy issue did not fall under their purview. Ms. Frisbee pointed out that the City's approach addressed the elements of a watershed management plan in a scattered way through land use and development codes, a water quality program, and a surface water management program. She commented that the Planning Department knew how to address land use because that was its job but it did not know what to do with a body of water. Mr. Sandblast recollected that Metro staff told the Task Force that Oswego Lake met only one of the five criteria for Title 3 designation (flood storage and flood control). He mentioned that Mr. Johnson had advocated looking at the issue of zoning the land underneath the lake. The Task Force concluded that its business was looking at sensitive lands and not at zoning, but it did express that idea in Recommendation 2. Mr. McMurray commented that part of their discomfort came from hearing concerns about the implementation of the sensitive lands overlays and the lack of integrated watershed management for water quality protections. Mayor Hoffman concurred with Councilor Olson that Lake Oswego's regulation of tree groves and riparian areas was different than only regulating riparian areas. He disagreed that Lake Oswego's map update was unlike other cities' updates. He cited Portland's similar angst in reviewing its natural resource inventory for the airport futures project and mapping new properties in the large Slough area with their P and C zones. He asked if the Task Force considered whether there was a mechanism or a method either to relax or amend the tree grove protections and then adopt the Metro model code, which would expand the buffers. Mr. Owens indicated that the Task Force decided that it would not recommend eliminating the tree grove protection and creating larger buffers. Mr. Sandblast pointed out that, although the City discussed the tree grove protections as a trade off for smaller buffers, Metro did not have that linkage. If the Council decided to revisit the tree groves, it exposed the City to a revisit of expanded buffers also. He concurred with Mr. Owens that the Task Force chose not to address the issue because the members did not think that the trade off was worth revisiting. Mayor Hoffman agreed that this was a policy issue and a legal issue. Councilor Olson pointed out that, while the Metro model code had wider buffers, it also allowed more uses within those buffers. She commented that she preferred wider buffers with more uses than the City's current situation of smaller buffers with no uses allowed. Councilor Johnson spoke in support of keeping the smaller buffers with the tree grove regulations and expanding the buffer uses. Ms. Frisbee mentioned that the Metro City Attorney visited one of the Task Force meetings and discussed the no back sliding provision. She recalled that his conversation had delivered the message that Metro staff anticipated that Lake Oswego would be in substantial compliance with Title 13 with its smaller buffers and tree grove regulations. Ms. Frisbee indicated to Councilor Tierney that Metro was not yet at the enforcement of provisions stage, as jurisdictions only submitted their compliance plans in December 2009. She mentioned that Lake Oswego was one of the four jurisdictions that have not yet submitted their plans. She explained that the Metro staff worked closely with the City staffs so that a city had a good idea before submitting its plan whether it would get Metro staff support. Councilor Ti rn y commented that he did not want the fact that that provision has not yet been defined through any Metro process to so constrain the Council that it did not discuss the matter and think about how to be more creative. Councilor Olson agreed that the Council should City Council Special Meeting Minutes Page 16 of 18 June 22, 2010 discuss this issue, citing Mr. Powell's comment last year that the provision was unusual and could be tested. Mr. Powell clarified that there were both legal and policy considerations surrounding this issue but the policy issues were stronger. Mayor Hoffman pointed out that other jurisdictions would join Lake Oswego in protecting tree groves as they added land, since Metro required protection of tree groves outside the UGB. Ms. Frisbee clarified to Councilor Moncrieff that the no backsliding rule referred to the regulations adopted by a jurisdiction in connection with its Goal 5 protection program. She explained that if a city already had a Goal 5 protection program in place prior to Metro's adoption of Title 13, it could not unwind that protection in connection with Title 13 compliance. Mr. Powell pointed out that, since the Safe Harbor program for complying with Goal 5 did not require upland tree grove protections, one could argue that those protections were not necessary to comply with Goal 5 and therefore were not a Goal 5 program. Councilor Moncrieff mentioned the consideration of whether it was more beneficial to the watershed system to protect upland tree groves or to increase the stream corridor protections. She concurred with Councilor Johnson that it would be nice to have smaller buffers and the expanded uses of the model code. She spoke to not compromising the overall system in looking for trade offs. Councilor Olson concurred. She suggested that the Task Force recommendations for incentives, education, and outreach and the City leading by example were new elements that the City could offer Metro in combination with its tree code and other elements to do it all without the tree groves. Mr. Praeger mentioned that, during this discussion, the Task Force considered the emphasis in the Comprehensive Plan of the importance of tree groves to the community. Tree groves were not something to be thrown away, even if Metro would let the City eliminate the protections. Councilor Olson commented that the community had so many tree groves because their importance to the community meant that residents did not clear cut them. She reiterated that this was a policy discussion. Councilor Jordan spoke in support of moving in the direction of treating the system holistically, instead of in islands. She asked what the City needed to do to make sure that it was in substantial compliance that would also leave the City with the opportunity to implement some of these recommendations without having to go back through the whole process. Ms. Frisbee indicated that staff did not know that for certain. However, City staff discussed the Task Force recommendations with the Metro staff who did not express concern about them. She said that they did not talk about removing tree grove protections, which was a bigger policy issue since that was half the City's sensitive lands program. She commented that somewhere between changing half the program and making the changes recommended by the Task Force would be going too far and take the City out of compliance. Councilor Jordan asked what components could the City put together to make the program work better for the citizens and still be in compliance with Title 13. She commented that she did not think that training staff to take a more positive approach would affect Metro compliance. That was the kind of thing that the City could deal with separately from putting regulations in place to allow more freedom and flexibility in the buffers, while maintaining small buffers and tree groves. Ms. Frisbee directed the Councilor to the staff report, which listed the quick fixes staff saw for responding to citizen concerns about flexibility. She noted that it also identified the program improvements requiring budget resources and a bigger look. She said that she thought that they could do the more immediate things and submit the City's compliance package to Metro. She indicated that she could not guarantee that because City staff has not vetted it with the Metro staff and the decision was up to the Metro Council in the final analysis. She indicated to Councilor Jordan that the code audit consultant's report did not call out this chapter specifically, other than to acknowledge that it was a section of code that generated questions and concerns. She observed that the Comprehensive Plan update/Periodic Review City Council Special Meeting Minutes Page 17 of 18 June 22, 2010 process was the time to discuss tree groves because the Plan was the original source of the City's current program. Councilor Olson reported that the code audit consultant's presentation to the Planning Commission was excellent and available online. Mr. Sandblast commented that, during the past nine months, he had not been driven by whether their work complied with Metro or not. His thought had been that if they were doing what was right for the community, then substantial compliance at the regional level would follow. The Council discussed whether to continue the discussion to the next evening. Mayor Hoffman indicated that he would reconvene the discussion at 6:30 p.m. tomorrow. Councilor Hennagin asked whether the step following authorization of incentives was referral to the Planning Commission for hearings. Mayor Hoffman said that the Council could discuss that. He commented that incentives could be dollars from a City fund set up to compensate people X amount per square foot. 4. ADJOURNMENT Mayor Hoffman adjourned the meeting at 10:14 p.m. Respectfully submitted, Robyn C ristie City Recorder APPROVED• ON [ lNevemr • � \ City Council Special Meeting Minutes Page 18 of 18 June 22, 2010