CONSERVANCY v. CITY OF GRESHAM, LUBA No. 2006-084 (Or. LUBA 9/15/2006) (Or. LUBA, 2006) <br />Page 1 <br />BUTTE CONSERVANCY and ERIK NIELSEN, Petitioners, <br />V. <br />CITY OF GRESHAM, Respondent, and <br />PERSIMMON DEVELOPMENT, Intervenor-Respondent. <br />LUBA No. 2006-084. <br />Oregon Land Use Board of Appeals. <br />September 15, 2006. <br />Appeal from City of Gresham. <br />Gary P. Shepherd, Portland, filed the petition for review and argued on behalf of petitioners. <br />David R. Ris, Senior Assistant City Attorney, Gresham, filed a response brief and argued on <br />behalf of respondent. <br />John M. Junkin, Portland, filed a response brief and argued on behalf of intervenor- <br />respondent. With him on the brief were Krista N. Hardwick and Bullivant Houser Bailey, PC. <br />BASSHAM, Board Chair; HOLSTUN, Board Member, participated in the decision. <br />AFFIRMED. <br />You are entitled to judicial review of this Order. Judicial review is governed by the provisions <br />of ORS 197.850. <br />FINAL OPINION AND ORDER <br />Opinion by Bassham. <br />Page 2. <br />NATURE OF THE DECISION <br />Petitioners appeal a city council decision on <br />remand from LUBA approving an 86-lot <br />planned unit development (PUD) <br />MOTION TO INTERVENE <br />Persimmon Development (intervenor), the <br />applicant below, moves to intervene on the side <br />of respondent. There is no opposition to the <br />motion, and it is allowed. <br />FACTS <br />The challenged decision approves an 86-lot <br />PUD on a 69.5-acre parcel in the City of <br />Gresham near unincorporated areas of <br />Clackamas County. The subject property is <br />steeply sloped and wooded, and within the city's <br />Hillside Physical Constraint Overlay District <br />(HPCD). The proposed development required a <br />variance to allow two cul-de-sacs over 200 feet <br />in length, a tree removal permit to log <br />approximately 1800 trees in areas where streets <br />and utilities are proposed, and construction of a <br />secondary road access for emergency vehicles <br />through an existing residential lot in an <br />adjoining subdivision within unincorporated <br />Clackamas County. <br />The city's initial approval was appealed to <br />this Board, which sustained three assignments of <br />error, and remanded the decision to the city to <br />address, among other things, whether (1) <br />providing the emergency vehicle access is <br />feasible, and (2) removing 1800 trees constitutes <br />"clear cutting" that is prohibited under city code. <br />On remand, the city conducted a public hearing <br />and adopted additional findings concluding in <br />relevant part that it is feasible to obtain the <br />required emergency access and that the proposed <br />tree removal did not constitute "clear-cutting" <br />that is prohibited under city code. This appeal <br />followed. <br />Page 3 <br />FIRST ASSIGNMENT OF ERROR <br />In order to gain approval of the requested <br />variance for culs-de-sac longer than 200 feet, <br />intervenor proposed and the city approved a <br />secondary access point that would extend south <br />of the PUD through a residential lot in the <br />adjoining Kingswood Heights subdivision, <br />l~astcase <br />PC Agenda - Page 9 <br />