CONSERVANCY v. CI I Y OF GRESHAPV1.. LUBA No. 2006-084 (Or, LUBA 9!16/2006) (Of. LUBA, <br />8. CDC 9.1010(E) provides: <br />"Tree Removal in Overlay Districts: Except as <br />provided below, no removal of regulated trees shall <br />be permitted within a Hillside Physical Constraint, <br />Flood Plain, or Natural Resource Overlay District <br />without a Type II Development Permit." <br />9. The city points out that CDC 9.1010(E) has since <br />been amended to provide an exception for removal of <br />regulated trees within 10 feet of the outer edge of the <br />outline of a proposed single family residence or <br />related site improvements, so that such tree removals <br />no longer require a Type II Development Permit. The <br />city argues that any building permit/tree removal <br />applications for individual lots within the subdivision <br />will be governed by the amended CDC 9.1010(E), <br />and therefore petitioners' arguments under former <br />CDC 9.1010(E) are essentially moot. It seems <br />unlikely to us that if the CDC in effect at the time of <br />the challenged PUD/tree removal permit required <br />evaluation of trees to be removed for dwellings, <br />subsequent amendments to the CDC would moot a <br />challenge that the city failed to conduct that required <br />evaluation. However, we need not address that <br />argument, because we agree with the city that nothing <br />in CDC 9.1010 or elsewhere cited to us requires that <br />the city determine in this decision which and how <br />many trees will be removed for dwellings. <br />lastcase <br />10. The city also points out that Condition of <br />Approval 6(c), a condition imposed in the city's <br />initial decision and not challenged by petitioners, <br />requires that the CC&Rs for the subdivision include a <br />restriction against removing regulated trees on <br />individual lots where the result would leave fewer <br />than one tree per 1,000 square foot of lot area. We <br />understand the city to argue that that condition <br />effectively ensures that development of individual <br />lots will not run afoul the prohibition on "clear- <br />cutting," as that prohibition is applied to applications <br />to develop individual residential lots in the PUD. <br />11. ORS 197.829(1) provides, in relevant part: <br />"[LUBA] shall affirm a local government's <br />interpretation of its comprehensive plan and land use <br />regulations, unless the board determines that the local <br />government's interpretation: <br />"(a) Is inconsistent with'the express language of <br />the comprehensive plan or land use regulation; <br />"(b) Is inconsistent with the purpose for the <br />comprehensive plan or land use regulation; <br />"(c) Is inconsistent with the underlying policy <br />that provides the basis for the comprehensive plan or <br />land use regulation[.]" <br />-9- <br />PC Agenda - Page 17 <br />