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With the council split on whether to uphold approval of permits to remove nine trees, it will be up to Council President John Wendland to decide 

COURTESY PHOTO - Renaissance Homes wants to build two single-family homes on two mostly undeveloped lots in First Addition.

This story was updated from its original version

The Tuesday, Sept. 6 Lake Oswego City Council meeting featured accusations of harassment and vandalism, back-and-forths between councilors about whether conviction or the letter of the law should take precedence and the questioning of whether the city of Lake Oswego's tree code is compliant with state law.

In the end, after well over three hours of public comment and deliberation, the council reached a stalemate over the proposed removal of nine trees to build two single-family homes in the First Addition neighborhood. It will be up to Council President John Wendland, who was absent at the meeting, to break the tie during the subsequent meeting Sept. 20. An additional motion made by Mayor Joe Buck — which was rejected — would have required the developer to plant new trees on the property and on the street as a condition of approval.

Technically speaking, the council upheld the city's Development Review Commission's approval of the tree removal permit for one of the two lots — but the permit would only be granted upon the approval of both lots.

The issue first arose in early 2022 when Renaissance Homes proposed the development of the two homes — which would be over 3,500 square feet each and include two stories and a basement at 529 and 541 8th Street — on two lots that currently include a single 418-foot structure.

Unhappy with the amount of trees slated for removal — of the nine, four were deemed to be in poor condition — the First Addition/ Forest Hills Neighborhood Association requested a public hearing in front of the city's Development Review Commission. Nonetheless, the DRC followed staff's direction and approved the tree removal application June 20 — leading the neighborhood association to file the appeal in front of City Council.

While arguing that the applicant didn't do enough to alter its plans to save trees, residents in the First Addition neighborhood are also worried about a broader proliferation of redevelopment leading to an erosion of the local tree canopy. And the city has fielded hundreds of public comments on the matter with concerns ranging from the creation of a gap in the local skyline to surface water retention, erosion, views and climate change.

"We are completely in support of development. Everyone here tonight and on the association will agree with that. We simply want it to be a responsible and reasonable development that does not have such a glaring negative impact on our neighborhood," neighborhood association representative Jill Cabral Schinn said at the Sept. 6 meeting. "No one is asking that it not be in our backyards. We are simply asking that our backyards be taken into account and respected."

Renaissance Homes, meanwhile, argued that it had met the city's criteria and even altered plans after a request from the city.

"I believe we have completely justified removal of all trees being applied for," representative Kelly McCall said.

At the meeting, Buck expressed agreement with his fellow councilors who voted against the approval — Massene Mboup, Rachel Verdick and Daniel Nguyen — in that Renaissance Homes did not do enough to save trees. However he felt that the application met city code and that if the council rejected the tree removal application outright, the developer could skirt the mitigation he addressed in his motion. The issue, he said, would inevitably be appealed to the Lake Use Board of Appeals or Clackamas County Circuit Court, and he felt the city would lose.

"It seems like a no-brainer to require the applicant to build a smaller home or build one home. Those are just not legal options we have before us," Buck said.

In a Facebook post, Renaissance Homes President Randy Sebastian stated his intent to appeal the rejection of the tree permits if that were the council's decision and expressed confidence that he would "definitely" win in court.

"A win at the Land Use of Appeals will force The City to award me all my attorney fees and even more importantly will expose Lake Oswego's antiquated tree code that is squishy and arbitrary, lacking definition and stopping housing badly needed within the Urban Growth Boundary. I will win as I'm undefeated in over 38 years of fighting NIMBYs (not in my backyard) and their Councils who bow to them. I have the law on my side. Justice will prevail," he wrote.

Of the dissenting councilors, Mboup was most vociferous in his objection to the proposal. He compared the debate to that of killing a person, saying that even if the law theoretically indicated that it was OK, morally it is not.

"In the best world, we would never allow cutting nine trees," Mboup said.

Councilor Daniel Nguyen was initially on the fence but asked the developer to make further alterations to save more trees. The developer seemed not to agree to this, and so Nguyen voted against the application.

"I need to see a good-faith effort to save more trees," he said.

Jessica Numanoglu, deputy community development director for the city, has said that due to the size of the lots, there isn't much wiggle room to save trees. She added that the developer already altered the initial plan in order to preserve three trees.

Verdick felt that the minor changes Renaissance Homes made to its floor plan did not amount to an earnest effort to address concerns.

Renaissance Homes attorney James Howsley noted that the developer is not required to take every possible step to preserve trees on a lot, based on local and state code standards.

Although she said the decision was difficult, Councilor Jackie Manz noted that the council's task wasn't to create new legislation but to determine whether local code was followed.

"I can't change the rules without new legislation, and that's the bottom line. We can't legislate on this. This is a quasi-judicial hearing with very strict rules around it," she said.

City Councilor Aaron Rapf, for his part, agreed with Buck and Manz while also stating his belief in the importance of protecting private property rights. Not doing so, he said, could have far-reaching consequences for the city.

Rapf also posited that if the tree removals had been proposed by a family rather than a developer, there wouldn't have been as much outcry. Mboup disagreed with that assertion.

Accusations of vitriol

Also during the meeting, Sebastian accused neighbors of harassment and vandalism — saying that one neighbor told him that they were coming after him, leading him to call the police. He added that kids were instructed to write messages in chalk on the street opposing the development and McCall said they had been chased off the site. They said negative signs had been posted there even though it's private property.

"That's Lake Oswego. That's what you have to deal with building homes here," Sebastian said.

Cabral Schinn, the First Addition/Forest Hills neighborhood representative, told a different story. She said that the chalk messages were not done by kids and relayed the message to save trees. She added that Sebastian had posted a picture of the woman who made the "verbal attack" on Facebook, adding that the woman's comment was an emotional reaction that she immediately regretted.

As was also mentioned in the DRC meeting, Howsley said that Lake Oswego's tree code is not compliant with state law and must be fixed. A 2017 law regarding housing stated that only clear and objective standards can be applied to housing proposals, whereas the city's standards related to community impact and aesthetics are subjective. Howsley cited a few recent cases throughout the state that have been decided on this point and noted that the Land Conservation and Development Commission has sent out an advisory saying that municipalities need to start complying with this statute.

"We believe Lake Oswego's tree ordinance fails to meet requirements of needed housing statute because the ordinance does not have clear and objective criteria," Howsley said.

The City Council and staff mostly did not acknowledge this claim, although Buck said that the state wants clear and objective standards so that developers have more certainty in what they can and can't do — and that subjective standards have contributed to the dearth of housing in Oregon. Addressing Nguyen, a fellow business owner, he said neither of them would like to be subject to the arbitrary whims of elected officials based on subjective criteria.

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