Planning Commissoin Agenda and Attachments (8/17/15)

CONSERVANCY v. C1 1-Y OF GRESHAM. LUBA No. 2006-084 (Or, LUBA 9/15/2006) (Or. LUBA, by CDC 9.1010(B).' Petitioners challenge both findings. Page 13 We need not resolve the issue of waiver, because we agree with the city and intervenor that the CDC does not require intervenor to consider trees that will not be removed under the proposed development the PUD-but may be removed under subsequent individual building permits for lots created by that PUD. As the city and intervenor point out, nothing in the . CDC requires a PUD applicant to identify specific building pads or envelopes for lots created by the PUD approval. Under petitioners' reading of the code, the PUD applicant and city would be required to guess where building pads and envelopes would be proposed on individual lots, in order to determine which and how many trees are likely to be removed pursuant to future, individual building permits. Instead, CDC 9,1010(B)(2) appears to contemplate that such tree removals are evaluated at or following the time when individual building permits are applied for.' Petitioners argue that the city misconstrues CDC 9.1010(B)(2) to allow tree removal for individual building sites to be evaluated at the time a building permit is sought. While that construction of CDC 9.1010(B)(2) may be the rule outside the HPCD, petitioners argue that CDC 9.1010(E) clarifies that where the HPCD applies, removal of regulated trees requires a Type II development permit, and cannot be approved as part of a mere building Page 14 permit.' Thus, petitioners argue, outside HPCD zones tree removal may be authorized under CDC 9.1010(B)(2) at the time of building permit approval, without obtaining a Type II development permit, but within HPCD zones such tree removal requires a Type II development permit.' petitioners do not explain why CDC 9.1010(E) or any other code provision compels that such future tree removals be evaluated as part of a PUD application seeking a tree removal permit that does not propose removing any trees to site dwellings on individual lots. Petitioners may also be correct that the city's interpretation of CDC 9.1010 to effectively allow piecemeal cutting of regulated trees over a series of applications may undercut the prohibition on "clear cutting.".10 However, that there may be loopholes that undercut the "clear-cutting" prohibition does not mean that the city's interpretation is subject to reversal Page 15 under the deferential scope of review we must apply to a governing body's code interpretation under ORS 197.829(1).1 The fact remains that nothing in CDC 9.1010 compels the applicant for a tree removal permit necessary to site roads and utilities for a proposed PUD or subdivision to take into account trees that may have to be removed in subsequent development applications to site and build houses on individual lots on that same property. Because it is difficult if not impossible in the context of PUD approval to determine which trees and how many trees will be removed when individual PUD lots are developed, such a requirement would be unworkable, even if there were a basis in the code for an implicit requirement to that effect. The city's code interpretation declining to infer such a code requirement is well within the city's interpretative discretion under ORS 197.829(1), The second assignment of error is denied. The city's decision is affirmed. Notes: Petitioners may be correct that CDC 9.1010(E) would require a Type 11 development permit for tree removal to site dwellings on individual lots within the HPCD zone, but l~astcase 1. The Kingswood Heights subdivision restrictions include the following: -7- PC Agenda - Page 15