City of Ashland
Tree Commission
May 6, 2004
Regular Minutes

Call to Order:  7:04 p.m.

Roll Call:  Loftus, Pritchard, Stockwell, Nelson, Holley, Jennings, Sager (late)
Council Liaison:  Hartzell (absent)
Youth Liaison:  None
Staff Present:  Harris, Severson, Todt

Approval of Minutes April 8th, 2004
The minutes of April 8th, 2004 were approved with corrections.

Welcome Guests & Public Forum
Randall Hopkins/735 South Mountain Avenue spoke regarding his appeal of Lloyd Haines' Shasta Building project which is under appeal to the City Council for their May 18th agenda. He explained that he had distributed a proposed Tree Commission recommendation relative to the alder and gateway trees on the project site. He discussed the first criterion of any planning action as truth, and emphasized that if an application is submitted inaccurately it gives the applicant an advantage. He added that if the commission makes a recommendation based on an inaccurate submittal that recommendation is then leveraged to the planning commission.

Hopkins recounted that the Tree Commission had not opposed the removal requested in January and because of this it gives weight to the tree removal application. He stated that the facts as presented at that time were untrue, and emphasized that the driplines of the maple and the ODOT trees are into the proposed building envelopes. He emphasized that the proposed removal was justified by the other trees on the site that were to remain in good condition, and added that in the revised inventory there was only one tree on site listed in good condition with all others listed as fair or poor, versus twenty two in the original application being described as good. He concluded that the commission must adhere to the integrity of the rule of law and call for the denial of the tree removal permit. He requested that the commission make an appearance before the council and make such a recommendation.

John Galbraith/145 South Holly Street, Medford, OR 97501 landscape architect for the project stated that he was not a criminal, and was not lying or attempting to mislead. He stated that he had simply been trying to deal with the requirements of a new ordinance. He explained that the difference in the trees' condition was due to arborist Tom Myers evaluating the trees differently. Galbraith stated that the canopies had been overlooked, and that the required fencing around the staging area had not been shown. He emphasized the need to have an urban forester on city staff to support applicants in dealing with the tree ordinance.

Lloyd Haines/51 Water Street explained that Galbraith has now revised his plans to include the tree canopies and the critical root zones. He reiterated that the January request to remove the alder was because it could not be saved and still meet the city's design standards. He added that they were required to do what they could to save the three-trunked maple and they did that by using piers instead of stem walls. He stated that the new preservation plan would provide further protection by staging construction off of Main Street. Haines emphasized that the trees on the ODOT right-of-way had already been affected by the old retaining wall, and stated that he would use 4" piers on that side to minimize root impacts. Haines added that the Tree Ordinance exempts trees less than 18" on public right-of-way and as such tree permits are not required. He noted that by state law the trees can be trimmed. He stated that he would like to plant two heritage trees as mitigation and place a sculpture. He suggested that he had gone, and was willing to go, as far as possible to salvage the remaining trees. He stated that the purpose of the ordinance was not to stop all development, and added that Hopkins intent is to stop development of this site. Haines concluded that he would submit a modified preservation plan, comply with all requirements, protect trees in the creek channel, and present new arborist testimony relative to the ODOT gateway trees and retaining walls. He emphasized that he was doing his best to save the maple and that he had agreed to plant both sides of the creek to make it a more attractive place. He requested that the commission use common sense in reviewing his application.

Loftus stated that a special meeting might be necessary to consider the facts and make a recommendation prior to the City Council meeting. Harris explained that the Planning Commission is not involved in reviewing the application at this point. She emphasized that the City Council is the appellant body, and that while they could remand the matter back to the Tree Commission this is not typically done. Loftus reiterated that the commission could wait for the Council meeting on May 18th or hold a special session before then. He emphasized the commission's desire to make the ordinance work. Harris noted that the public noticing requirements for a special session were an issue, and she stated that such a meeting would be outside the process. She recommended letting the matter be heard before the council.

Hopkins questioned whether the City Council hearing could be postponed. Harris responded that this is an unusual situation, and urged commissioners to trust the process. She explained that at this stage, the council needs to be the body to make the decision. She added that it was questionable whether the Tree Commission could even take submittals from those speaking tonight.

Haines stated his opinion that the commission was not to take further submittals at this stage. He added that if the commission were accepting new materials, he would submit items now to rebut the accusations being made. He added that he would prefer to submit these to the council.

Harris suggested that the commission could send a representative to the council meeting to express the commissioners' concerns and asking that the item be remanded.

Nelson suggested that no further testimony should be taken, and that the item at hand was to determine how the commission could and would deal with this item, especially given the legal issues involved. Holley concurred.

Loftus questioned whether parties could provide materials to members outside of the meeting. Harris strongly advised against it.

Audience member Diane McDermott stated that she was at the meeting last month and had asked about the alder. She questioned the rigidity of city ordinances relative to design standards. She suggested that based on comments made by Planning Commissioner Swales that thorough, creative efforts had not been made to make the project work with the tree.

Public Hearings

Planning Action 2004-018 - Al & Sandra Carlson
Harris provided project background, noting the turf-stone courtyard and the landscaping proposed around the addition. She noted that the item was initially noticed as a Type II hearing, but as some issues have been resolved the matter is now being treated as a staff decision. She pointed out that the item was being brought before the commission because that was how it had been originally noticed.

Pritchard questioned the use of the Koelreuteria as a street tree. Project designer Gary Caperna recognized that this specimen could have maintenance issues and that they would be willing to choose another. Nelson stated that he would also like to see another specimen chosen near the parking area to provide a better canopy. Todt concurred with Caperna that the Koelreuteria has maintenance issues, but he recognized that it was tough and drought tolerant with a wide canopy. He recommended replacing it with a Chinese pistache or something else that was more upright in form from the Recommended Street Tree List. He also suggested that a Big Tooth Maple might be appropriate.

Planning Action 2004-030 - Archerd & Dresner
Harris refreshed members' memories that this item had been continued from last month because some trees were omitted from the inventory. She explained that a revised site plan had been submitted, and that staff was recommending approval with 15 conditions, including that the final plan submittal come back before the Tree Commission for review of the tree removal and tree protection plans.

Applicant Evan Archerd thanked commissioners, and noted that since last month a lot of time had gone into identifying and tagging trees on site and looking at several iterations of the road design. He stated that this project had turned out to be more challenging than most, but added that the least impact possible was contained in the proposal now being presented. He pointed out that while the road was not unduly curvy it also wouldn't provide excessive impacts on the neighborhood. He explained that #1401 was being removed to balance problems that saving it might lead to, and added that #1019 and #1020 were now being saved where they were previously called out for removal.

Archerd recounted meeting with neighbor Thomas Heumann to discuss the existing public utility easement from Nyla Lane and Heumann's concerns with impacts to the redwoods. He stated that previous development had placed a junction box and conduit in such a way that no disruption of any of the redwoods would occur. He also noted that 3 of the 5 trees at the road were being saved. Archerd added for Loftus that the overall net effect since last month was a wash with #1019 and #1020 as nice, larger trees being saved; the trees that the neighbors were concerned with being preserved; and the road shifting away from the neighbors but leading to the loss of #1401.

It was requested that the canopy of #16 be protected. On-site mitigation was also discussed, and Archerd stated that he was willing to mitigate 1 for 1. Sager stated that mitigation could be addressed at the final plan stage. Sager also asked that tree issues including type of trees to be planted and tree protection measures be included in the CC&R's for the development to maintain the rural oak savanna character of the site. Loftus added that the watering needs of the trees should also be addressed in the CC&R's. Todt noted that he had given Archerd a packet on protecting oaks during construction, watering needs, etc.

Holley pointed out that while the tree protection fencing appears to be appropriate in the plan, it was important that the applicants realize that the fencing was not to penetrate the roots. He also pointed out the need for tree protection signage, and requested that staff consider reinstituting site visits prior to the meeting for projects of this magnitude.

Planning Action 2004-043 - Dr. William Rodden/Mark Reitinger
Harris noted a letter received from Ashland Community Hospital, and went over details of the project for a temporary gravel parking lot. She noted that one tree was to be retained, with a bio-swale to the southeast side of the property and run-off to be pumped back up to Catalina. She further explained that the project was a Type I that had been called up to a full public hearing by a neighbor. Harris explained that staff was hesitant to have the lot paved due to the temporary nature proposed.

Reitinger provided some history of the project. He noted that Rodden's office is at 246 Catalina and currently has a non-conforming parking situation. The office is being remodeled with a reconstruction of parking facilities to follow, and this proposal is a means to mitigate parking issues during this reconstruction. He added that the patient base is primarily geriatric, and that they have problems with the existing 15% grade in the parking area. He noted that the sale of the property had recently closed and they had just received the staff report. He stated that they do not have a tree protection plan in place as they were waiting for the staff report to identify any new issues that might arise.

Reitinger added that the poplars on the south property line were to stay, and he clarified for Holley that the proposal was only a temporary use. There was discussion of the almond tree on site, and of the poplars which Holley noted appeared to be dead. Pritchard confirmed that the poplars were dead. She added that there was also a large apple tree that was not shown on the plans. She stated that this apple was a significant tree, and she added that there may also be a fig tree not shown.

Reitinger stated that he was looking for a recommendation from the commission. Pritchard suggested that an arborist needed to be employed to evaluate the almond. Todt noted that almonds are know to be deep-rooted and that they can be driven over and he recommended preserving the tree until a permanent plan for the site was developed.

Pritchard noted that saving the apple would lead to a loss of three parking spaces. Nelson recommended saving the almond. Sager requested that both trees be preserved and added that protective curbing around the bases was needed. She also asked that the apple be indicated on the plan.

Sager questioned what plants would be used for the bio-swale. Reitinger responded that he intended to plant native, drought tolerant material that would be low-maintenance when established. Sager suggested that these plants might not survive without some water, and she recommended adding gravel or cobblestone to the bottom of the swale and more plants. Nelson questioned how this would be irrigated. Reitinger stated that they had hoped to not irrigate. Nelson stated that he would like to see the poplars replaced, and he recognized the difficulty given the temporary use proposed. Reitinger noted that the applicants would be bonding for sidewalks in order to allow time to plan future curb cuts around the long-term use. Reitinger also clarified for Holley that because of the gravel and the age of most of the patients they would be relying on valet parking for this lot.

Loftus requested that the swale be drip-irrigated, and recommended that some dogwoods be planted. Other members concurred. Pritchard added that she would like irrigation for the almond's bed.

Harris explained for Sager that the temporary use might be extended, but she emphasized that it would have to go through this process again prior to an extension. Nelson suggested planting trees to replace the poplars now, with the option of replanting them elsewhere on site within two years if the long-term use required it. Reitinger suggested that that portion of the site would likely not change and that the plantings would be good for the long-term.

Jennings recommended some deciduous trees be planted to replace the poplars to the south.

Holley asked for irrigation, tree protection and planting plans and asked that the action be continued one month so these could be prepared and submitted. Harris stated the item was going before the Hearings Board on Tuesday. She explained that this commission could request a continuance or could condition for tree protection and verification prior to any sitework. She clarified that plan submittal could be requested for staff or commission review. She added that either way, the plans must be submitted and that the commission could leave it to staff to look at them again. Sager stated that she would prefer not to delay this item, and would like to provide some guidelines for staff review. Nelson and Loftus concurred.

Staff reiterated the recommendations made so far: removal of the poplars to the south of the site and replace them with appropriate deciduous trees; protect the almond with curbing/bumpering but do not add plantings to its bed; protect the apple; irrigate and provide more detail on plantings in the bio-swale; submit irrigation, tree protection and planting plans.

Planning Action 2004-054 - Lucinda Patterson
Harris explained that this item came to the commission because the variance was due to a tree. She pointed out that the proposal was for an accessory unit in the southwest corner of the property where the setback would normally be six feet. She noted that the applicant was proposing a zero setback to preserve some trees. Harris added that this was normally a staff approval, but it was brought before the commission because the variance requested was tree-related.

Sager noted that the trees being discussed were a maple and a crabapple; she stated that without the six foot setback they could have some breathing room. Harris added that the neighboring site was within county jurisdiction and was unbuildable due to its slope.

Patterson noted that she could move the accessory unit, but that her hope was to preserve the privacy of the primary residence while enabling the accessory unit to be built to ADA standards, which would not be possible far down-slope elsewhere on the lot.

She added that her plan was to hand dig near the maple and to take special care near both trees. She noted that she intended to water 12" deep once a month and that she would keep workers 17' away with tree fencing.

Loftus agreed with the proposal. Sager noted that the maple's roots were likely at or near the surface and could still be hurt by construction. She recommended a post and beam foundation to address this concern. Holley noted that roots could also be hand sawn where needed rather than relying on a backhoe.

Harris noted that staff proposed a condition to require tree protection. Loftus, Sager and Nelson indicated that they were agreeable to staff review of these measures.

Old Business
Haines/Shasta Project
Galbraith asked how the ordinance could be applied relative to fencing the dripline when the trees in question had driplines into the road. Sager suggested leaving the fence in place until work in the road happens, then do the necessary work and replace. Galbraith stated that while he appreciated a common sense approach, this was not in the code and he felt that he needed to do work to the code requirements. Holley noted that the code notes "except as otherwise determined by staff." He suggested that when there was a question, the question should ultimately rest with the Planning Director to let common sense prevail. Sager added that if something were approved as part of a protection plan it would be acceptable.

Galbraith questioned the critical root zone concept, which he said extended beyond the dripline in some cases. Loftus urged Galbraith to have someone from his office on-site during construction to insure the trees were protected. Galbraith stated that fully 50% of his office's staff time is dedicated to tree ordinance issues. He reiterated his feeling that the city needed an urban forester on staff to consult on tree issues. Holley urged Galbraith to make a written request to this effect to the Planning Director.

Nelson added that there needs to be an attempt at using your best judgment, given that roots and root zones cannot be seen but driplines and canopies can. He suggested that the requirements in the ordinance were the best compromise available.

Loftus suggested that there was a need to get to the meaning, intent and power of the ordinance without simply finding fault. He emphasized that he does not like defensive posturing and is aware of procedural issues as well.

Jennings noted the difficulty of not having a specified staff liaison for the commission. Holley suggested that letters from Haines and Galbraith relative to staffing issues directed to the Administrator, Council and Planning Director would be appropriate. Galbraith asked about fine-tuning of the ordinance. Holley stated that everyone would support some fine-tuning.

Loftus agreed that someone on staff with an understanding of tree issues was needed. He noted the difficulty in getting calls returned. Sager concurred with others' frustrations and agreed that they should be directed to the Administrator, Council and Planning Director. Galbraith noted that Medford was now working on a tree ordinance, and he stated that with fine-tuning the ordinance could be a great thing.

Holley noted that Hopkins had requested a recommendation. He stated that members could read and sign the recommendation or send a representative to speak at Council.

Nelson stated that he would prefer not to single out this project. He noted that applicants Patterson and Reitinger did not have items indicated on their plans tonight either. Jennings agreed that despite previous agreement not to approve projects with incomplete plans, they had done so tonight. Nelson emphasized that he did not support Hopkins recommendations and if they were signed he would like to make it known that they were not supported unanimously. He added that mitigation and other items within the ordinance needed to be addressed, and that this project should not be singled out.

Stockwell suggested that Reitinger had left the apple tree off of his plans in error. He stated that in the Haines application there were some inaccuracies involved. He pointed out that the driplines may have been shown in such a way as to allow what the applicant wanted to do. Todt stated that the canopy is an important indicator of the roots, but he emphasized that you cannot really tell what is going on underground without excavating.

Jennings stated that the trees here are a small grove, and she emphasized that the alder here is the gateway to the downtown in many people's minds. She suggested that the trees were in good condition and could probably have 25 more years of life with proper treatment. She stated that the commission must honor community sentiment. She pointed out that the maple has three trunks and that one of the three could not be removed without harming the other two. She emphasized that the big maple was not single-trunked, and she stated that the original plan had made no sense to her and was filled with inaccuracies. She added that she did not feel that malicious misrepresentation was involved.

Pritchard indicated that it was frustrating that plans seemed to be routinely lacking in details.

Loftus agreed with Jennings that he did not feel there was any misrepresentation involved. He stated that the alder was the gateway to the downtown and softened the entry with greenery. He stated he would have opposed the previous removal application if he had known the ODOT grove would be at risk. Loftus and Jennings agreed that they feel a responsibility for the previous decision and thanked Hopkins for his efforts.

Stockwell emphasized the need for flexibility. Holley noted the need to understand the Planning Commission in the context of the planning culture. He suggested that the city wants buildings of the type Haines had proposed. He noted that the Planning Commission vote had been 7-1 to approve. He added that if the commission were singling out this action as Nelson had suggested, more issues would have been raised in January. He suggested that a recommendation requesting a second look at this project with a minority report was an option that was in the spirit of compromise. He explained that while he would like to see the matter returned to this commission for review, the council could opt to simply decide on the matter.

Jennings questioned how much flexibility was available in the city guidelines. Harris stated that there was a downtown design standard in ordinance form. She recognized that there was some flexibility, but also noted that the Historic Commission was strongly in favor of conformance with these standards. She emphasized that the issue for the decision makers was to balance all of these concerns.

Loftus clarified that the issue now was to decide whether to recommend to the council that the commission revisit this action in light of new information and the need for additional public input and discussion. Jennings urged members not to suggest that any misrepresentation had been involved.

Harris clarified that the council has historically accepted all appeals submitted to it. She recognized that this matter was unique for the timing of the issues that were brought to light. She emphasized that there are procedural issues involved when things are brought forth at this stage. She explained that the Planning Commission relies on the advice of the Tree Commission, the Historic Commission and city staff and makes decisions in light of all of these recommendations. She pointed out that a request for the commission to hear the matter again amounts to a remand back through the process, which is a power above and beyond that vested in this commission. She reiterated that this was why she had previously advised members to trust the process and to trust the city council as decision makers. She noted that the Planning Commission has discussed the need to let go of decisions once they are made and leaving the decisions to the council as the appellant body.

Stockwell noted that the applicant would have to want to be flexible, and he stated that he would like to see a large compromise meeting. Harris explained that under Oregon land use policies, the hearing is a quasi-judicial process that must be criteria-based. She emphasized that this brings state laws into play. She noted that the applicant would have to waive the 120-day rule, and she added that the redundancy of a remand would bring the fairness of the process into question. She stated that the state laws requiring fair process and timeliness would prevent a large scale compromise gathering of the type Stockwell suggested.

Loftus suggested that if all commissions involved requested a remand it would have more weight. Harris clarified that she was not advising against making the request, she was simply making the commission aware of the issues involved that would also be presented to the council by the planning staff and the city attorney.

Holley noted that if the matter were to be appealed to the Land Use Board of Appeals, the last night to submit new materials into the record would be the night of the council hearing. He noted that both the applicant and appellant had prepared new materials, and that he would truly like a compromise. He stated that the recommendation could be made to suggest that the council look at the new info from both parties to ensure that the matter is considered in light of the new information. Holley agreed that the remand opened a can of worms. He stated that if the commission could make the council aware of the new information and request that it be considered he would trust the process. Nelson stated that he would be amenable to a recommendation that, given the new information and the apparent changes in the canopy presented, the commission would appreciate the council taking the extra time to carefully consider these elements of the application. Holley added that a remand back could actually sway LUBA's verdict. He emphasized that if a decision was not made within the 120-day rule, the plan on the table at that time would be approved outright.

Sager stated that she would like to clarify for the council that members are not comfortable with their previous decision now and that the outcome of the application may have been different in light of the new information. Nelson stated that he would be against the latter part of this statement.

Loftus noted that a letter was needed and that members could attend the meeting as well. Holley stated that he could prepare a letter to be drafted via email. He added that this could be sent under the names of those willing to sign-off and that others could send a minority opinion letter.

Holley concurred that all information submitted would go to the applicant, the appellant and the council.

Pritchard stated that there had been new information from both sides since the previous decision, and if it had been available at the time of the decision there was a potential for a different outcome. She suggested that there was a need to emphasize the need for accurate information. Sager added that the decision made may not be the right one. She emphasized that she didn't want to change her mind, but she also did not want the last decision to be seen as the recommendation of the commission.

Loftus reiterated that in fairness to the trees, the community, the parties involved and the ordinance, there needs to be a letter from the commission and an appearance at the hearing. Holley agreed to draft something via email and finalize it by the 13th for distribution to staff and council.

Sager questioned whether Galbraith could submit additional information. Galbraith stated that he would like to make a new submittal prior to a commission recommendation. It was confirmed that everyone had received and reviewed the information booklet prepared by Hopkins. Harris stated that she would need to check on the issue of having ex parte contact occur at this stage. Jennings questioned why there had been not site visit since the submittal by Hopkins.

Goals - Staffing
This item was tabled.

Goals - Education/Outreach
Holley expressed concern over trying to do too much. He suggested making a list of action items and separating out education items from everything else. He stated that "everything else" is beyond the commission's control and the education items would address the commission's charter charge. He suggested that the commission was spinning its wheels relative to staff support and cited the design professional and mitigation ordinances as examples. He stated that he would favor pruning the goals list. He stated that he would like to bring his list as talking points for the next meeting.

Liaison Reports
None.

Memorial Tree List
This item was tabled.

Heritage Tree Process
This item was tabled.

Design Professional Ordinance Amendment
This item was tabled.

2004 Arbor Day/Earth Day Planning
Holley stated that he had an evaluation form and would respond.

Current Balance: $0

New Business
Holley noted that the former Tree of the Year at Briscoe School was 100 years old.

Holley suggested preparing a review lists of items to address in the Tree Ordinance.

Sager noted her response to Loren Schafer's inquiry from last month; she stated that she has drafted a generic letter for the city attorney to review in preparing a packet. She added that she had packets provided by Robbin Pearce and a copy of the ordinance. Nelson stated that he would also like the question and answer sheet included.

Sager asked for a study session to address mitigation. Holley stated that he would like it to be to address 18.61 as a whole. Members agreed that there would be a study session to discuss the Tree Ordinance (AMC 18.61) on May 27th from 6:00 p.m. to 8:00 p.m. Harris suggested that the planning staff should not all attend or participate at this stage, but that the commissioners should have the opportunity to identify issues they wish to address first.

Type I Planning Actions
This item was tabled.

Commission Items Not On Agenda
None.

Announcements
The next regular Tree Commission meeting will be on June 3rd, 2004 at 7:00 p.m. in the Siskiyou Room.

Adjournment
There being no further business, the meeting was adjourned at 10:38 p.m.