Final Order

Note: The Final Order regarding the Headwaters development project was signed on February 18, 2021. The following excerpts are selected to call attention to the efforts of the community to save the Shaull property from being turned into a housing development, and the intransigence of the hearings officer. Important passages are in bold font.

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BEFORE THE LAND USE HEARINGS OFFICER OF CITY OF GRESHAM, OREGON

Source:  F I N A L  O R D E R, SD/VAR/TR/MIS, 20-26000300, (Headwaters Subdivision).

February 18, 2021
Filename: 000.2 Order.pdf, available from the ePLAN site at https://eplan.greshamoregon.gov/ePlan/index.aspx


At the hearing, City Urban Design Manager JW summarized the findings and proposed conditions of approval in the Staff Report.

He noted that the applicant proposed to subdivide the 7.82-acre parcel into 30 lots for single-family detached dwellings. In addition, the applicant requests approval of a major variance to increase the maximum length of a dead-end street from 200 feet to 1,052 feet, a minor variance to increase the number of dwelling units served by a dead-end street from 25 to 30, removal of 267 regulated trees, revision of the HCA boundary, and installation of sanitary and storm sewer lines within the HCA and floodplain.

The proposed tree removal does not constitute “clear cutting” as defined by CDC 3.0150 because the site currently contains fewer than one regulated tree per 1,000 square feet.

The opponents argue that the definition of “clear cutting” includes non-regulated trees, defined as trees smaller than 8 inches in diameter at breast height (dbh). Therefore, because the site includes more than one regulated or non-regulated tree per 1,000 square feet, the proposed tree removal qualifies as “clear cutting” as defined by the Code. However, the Code allows the removal of non-regulated trees without restriction. Therefore, the applicant could easily avoid this interpretation by removing all of the non-regulated trees on the site. However, the City has consistently applied the definition of clear cut to only include regulated trees.

Even if the proposed tree removal constitutes “clear cutting,” it would not preclude the proposed development. The City’s clear cutting regulations merely require that the applicant retain trees on the site until after issuance of building permits for the proposed subdivision.

Opponents argued that trees on the site may be infected with laminated root rot (root rot) and the removal of infected trees could cause the disease to spread. However, there is no evidence that root rot exists on the site. In addition, the removal of infected trees and surrounding trees is considered one of the best methods for controlling the spread of root rot.

Floodplain impacts are limited to the storm sewer outfall. Such impacts are allowed by the Code. The applicant will collect, treat, and detain stormwater runoff prior to discharge to the floodplain at less than predevelopment rates.

Opponents testified about the possible presence of archaeological materials on the site. The Code does not require an archaeological survey prior to undertaking development. However, state and federal law prohibit damage or removal of archaeological objects. Therefore, the City recommends that the applicant contact the State Historic Preservation Office and the appropriate Tribe(s) to determine whether archaeological sites and objects are likely to be present in the project area. If any archaeological objects are discovered on the site, CDC 5.0340 requires the suspension of all work on the site and that the property owner notify the City. This is required by Condition 5 in the Staff Report.

[The] City Natural Resources Program Coordinator testified that root rot is known to be present in some trees in the City park north of the site. Therefore, she recommended that the applicant screen the on-site trees for evidence of root rot. However, the Code does not regulate this issue. Therefore, the City has no authority to impose a condition of approval to that effect. The Oregon state forestry pathologist recommends that when root rot is discovered, all infected trees and all adjacent susceptible trees should be removed. Hardwood trees are immune to root rot and Douglas fir trees are among the most susceptible. The state Forestry Department has no concerns with the proposed tree removal on the site, as such removal is consistent with its recommendations if root rot is present. The Forestry Department has no concerns that clearing on the site will spread the disease, as exposure to oxygen kills the fungus.

[The applicant] spoke with the property owners’ representative and the site surveyors and they stated that they were not aware of any prior archaeological discoveries on the site and they did not see evidence of such objects on the site. She will inform all contractors working on the site about the need to watch for archaeological objects during construction and cease all activity and follow the relevant protocols if such objects are discovered during construction.

JB argued that the applicant should be required to develop a plan for how contractors working on the site will look for and protect archaeological objects during construction on the site and strongly recommend that the applicant perform an archaeological survey of the site prior to undertaking construction. The site is one of the last undeveloped potential archaeological sites in east Multnomah County. Val Shaull’s father found several archaeological objects while farming the site. The State Historic Preservation Office (SHPO) determined that the site has a moderate to high probability for archaeological findings. It would be difficult to identify archaeological objects while operating heavy equipment on the site and such equipment could easily destroy any objects that are present.

KW, vice chair of the City Urban Forestry Subcommittee, testified that the Subcommittee is concerned that the largest and best stands of Douglas fir in the City are located on private property. Clearing on this site conflicts with the Subcommittee’s goal of establishing and maintaining a tree canopy throughout the City.

He argued that the City is misinterpreting the Code definition of the term clear cutting. The Subcommittee adopted the U.S. Forest Service (USFS) definition of that term. A task force of the Subcommittee attempted to reformulate the definition to address the preservation of trees in the urban area, but no changes were adopted. Therefore, the City should rely on the USFS’s interpretation of the term. Many stands of mature trees would fall outside of the City’s definition of this term, as the number of trees per 1,000 square feet declines as the size of trees in the stand increases.

The report from the applicant’s arborist failed to consider the risk of windthrow when winds are blowing from the south. The arborist only considered impacts of east winds, which usually blows during dry conditions. However, winds generally blow from the south during the wet winter storm season, when soils are saturated and trees are more prone to blow-down. In addition, the arborist’s report failed to consider other types of root rot that may be present on the site. Clearing on the site may alter the soil moisture level as the trees will no longer pull moisture out of the soil. Increased soil moisture may impact the remaining Douglas fir trees on the site and surrounding properties. Clearing will also increase the volume of stormwater runoff leaving the site.

CR noted that CDC 9.1032(E) requires that conifer trees be retained in sufficiently large areas and in dense stands to ensure against wind throw and the Manager may require a mitigation plan or wind throw assessment to be provided by a Certified Arborist or a registered landscape architect. As noted in the written testimony from Jim Buck and the Audubon Society, construction near areas of root rot may cause the root rot fungus to spread. Therefore, the applicant should be required to review the site for the presence of root rot and implement a plan to limit the spread of the disease.

The hearings officer generally concurs in the analysis and conclusions offered by City staff; to wit, the proposed development does or can comply with the applicable standards and criteria for the proposed development. Adoption of recommended conditions of approval will ensure final plans are submitted and approved consistent with those criteria and standards and will prevent, reduce, or mitigate potential adverse impacts of the development consistent with the requirements of the City of Gresham Community Development Code (the “CDC”). The hearings officer adopts the findings and conclusions in the Staff Report as his own except to the extent they are inconsistent with the findings in this Order.

The hearings officer understands residents’ objections to the proposed tree removal and development and their desire that the site be preserved as a park or open space. However, the site is zoned for residential development and has been for some years. The applicant must remove the majority of the trees in order to construct roads, install utilities, and create sufficient buildable lots to meet the City’s density requirements on the upland portion of the site.

Neighbors asserted that Helen Shaull, the prior owner of the site, intended to preserve the site as a park. However, Ms. Shaull failed to take effective measures to fulfil this alleged desire.

The City Council could exercise its power of eminent domain to purchase the site if it chose to do so.

However, the hearings officer cannot delay action or deny approval of the application to allow the City an opportunity to purchase the site as a park. The applicant proposes to divide the site. If the application complies with the applicable standards and criteria in effect when the application was filed, then it must be approved, whether or not the site could be used as a park.

The applicant and City staff argue that the proposed development is exempt from the “clear cutting” regulations of GCDC 9.1032(F), because the site contains fewer than one regulated tree per 1,000 square feet of lot area.1However, the Code definition of “clear cutting” does not include the word “regulated.” The hearings officer finds that Staff’s arguments in support of limiting the analysis of “clear cutting” to regulated trees are reasonable and appear consistent with the intent of the Code. However, Staff’s interpretation inserts words into the Code, which is prohibited by ORS 174.010.2 The Code defines “clear cut” based on the number of “trees,” regardless of size.

This section does not prohibit the removal of trees. It merely prohibits clear cutting until after the applicant has installed erosion control measures and obtained all development permits, including building permits and any other applicable permits necessary to ensure completion of the proposed subdivision.

Contrary to some neighbors’ assertion, this section does not require that the applicant preserve trees on the site until building permits are issued for homes on individual lots. GCDC 9.1032(F)(1)(b) refers to “[p]ermits necessary to ensure completion of the proposed development…” In this case, the “proposed development” is a subdivision, which is complete upon recording of an approved final plat.

The City has no authority to require that the applicant preserve additional trees on the site as urged by some witnesses. The site is not part of the Fairview Creek Headwaters or Grant Butte protected areas. As noted above, the site is zoned for residential development and, with the exception of the areas designated habitat and floodplain, it is not protected from development. In order to develop the site, the applicant is required to meet the minimum density requirements of the TLDR zone, which requires smaller lots with limited setbacks. It is not feasible to preserve large trees within these relatively small yards. Presumably the City Council attempted to strike a balance between the competing needs for housing and environmental concerns when it adopted the Code. The hearings officer has no authority to reconsider that balance and alter the Code in this proceeding.

Removal of trees and other vegetation and development on this site will eliminate habitat for wildlife. But the Code does not prohibit such an effect. On the contrary, it is an inevitable consequence of concentrating new development in the urban area. None of the animals observed in the upland areas of this site are listed as endangered or threatened. They are commonly observed in the area. Their presence is less likely after the site is developed, but that is to be expected. The applicant will preserve the floodplain and the majority of the Habitat Conservation Area and associated buffer on the site within proposed Tract C, which will continue to provide some wildlife habitat as well as connections to other habitat areas on adjacent properties. Western Painted Turtles, a species listed as “vulnerable” by the Oregon Department of Fish and Wildlife are known to be present in the Fairview Creek headwaters area. The applicant must comply with state law protections for this species, which may require temporal or other limits on construction activities in certain areas of the site. However, such limitations are not required by the City Code.

The site contains roughly 78,452 square feet of Habitat Conservation Area.

The proposed development will permanently impact 1,492 square feet of the HCA. The impacted HCA area is isolated from the remainder of the HCA area on the site. Impacts to this HCA area are unavoidable, as this portion of the HCA is located near the center of the southern upland area of the site. The applicant must impact this area in order to extend a roadway into the site to serve the proposed development. (See Figure 6 of the September 3, 2020, HCA Report). The applicant will mitigate this impact by enhancing the remaining HCA on the site, planting 25 new trees and 25 new shrubs.

The applicant will temporarily impact 1,875 square feet of the HCA in order to install a sanitary sewer line in an underground trench. This impact is also unavoidable, as the existing public sewer main is located in the HCA. The applicant must extend the new sewer line through the HCA in order to provide a gravity flow connection to the existing sewer main. The applicant will mitigate this temporary impact by restoring and replanting the disturbed area of the HCA. The applicant can schedule construction of the sewer main during the dry season in order to minimize impacts to the HCA and wildlife that reside therein.

The City has no authority to require the applicant to conduct an archeological survey of the site. The site is not designated as a landmark on the City’s Historic and Cultural Landmarks List… As noted in SWCA’s January 5, 2020 letter (Exhibit C of the Staff Report), the site “has a moderate to high potential for encountering precontact and historical cultural resources.” Therefore, it may be in the applicant’s best interest to contact the State Historic Preservation Office and the appropriate Tribe(s) and to conduct an archeological survey of the site prior to undertaking any land disturbing activities. However, the City has no authority to require such actions.

Concerns were expressed about the density of the proposed development. The hearings officer understands residents’ displeasure with the growth around them, but this growth was foreseeable and is in the broader public’s interest. This area is zoned for residential development. As large lots are sold, presumably they will be developed. The hearings officer finds that objections to the proposed lot sizes and density are not relevant, because the proposed plat complies with the comprehensive plan map designation and zoning of the property.

The hearings officer finds that the application complies with the applicable approval criteria for major and minor variances…Denial of the variance requests would likely preclude development on the site, resulting in an unconstitutional taking of private property without compensation.

The proposed development will not have a significant adverse impact on water quality or flooding in the area.

The applicant will install erosion control measures prior to undertaking any land disturbing activities and maintain those measures throughout construction on the site, as required by the Code.

The applicant will collect, treat, and infiltrate or detain stormwater runoff from all impervious areas on the site consistent with City regulations. The applicant will collect runoff from roads and sidewalks in proposed stormwater planters within the public right-of-way, which will treat and infiltrate the majority of the runoff. Excess runoff will be treated and released into the on-site wetlands at controlled rates, replicating existing conditions. Runoff from roofs and other private development will be treated and disposed of in private infiltration facilities on individual lots.

The applicant’s geotechnical report notes, “the presence of the near surface moisture sensitive silty subgrade soils across the site.” (page 8 of the September 1, 2020, report from Redmond Geotechnical Services). As a result, the report recommends that, “[a]ll site earthwork and grading activities should be scheduled for the drier summer months (June through September) if possible.” (Id.) However, contrary to opponents’ testimony, the report does not prohibit earthwork and grading outside of this window. It merely recommends that the applicant undertake additional steps if work is performed during the wetter months. The City can ensure compliance with these requirements through its review of grading and erosion control permits.

CONCLUSION

Based on the findings and discussion provided or incorporated herein, the hearings officer concludes that File No. SD/VAR/TR/MIS 20-26000300 (Headwaters Subdivision) should be approved, because the application can or will comply with applicable City approval criteria, subject to conditions that ensure timely compliance in fact with the approval criteria and relevant Comprehensive Plan Policies addressed herein or incorporated by reference in the Staff Report.

DECISION

Based on the findings, discussion, and conclusions provided or incorporated herein and the public record in this case, the hearings officer hereby approves File No. SD/VAR/TR/MIS 20-26000300 (Headwaters Subdivision)…

Street Naming. Label NEW PUBLIC STREET as SW THOMAS PL.

DATED this 18 day of February 2021.

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