Up Sucker Creek

Up Sucker Creek
Photo Courtesy of the Lake Oswego Library

Monday, July 25, 2016

What Lake Oswegans are thinking

What's on your mind? 

From Nextdoor

Why is it so difficult for these invaluable trees to be protected as part of the initial purchase and designed around rather than cut down? 

This destruction of significant old growth trees to make way for supersized homes crammed onto every square inch is shortsighted and heartbreaking in our neighborhoods. 

If this is a concern, please let the project's City Planner, Evan Fransted, efransted@ci.oswego.or.us, know your thoughts. He said all comments are taken into consideration as this application is reviewed: 
This is not only about this one invaluable century oak--it's letting the City know there are residents out here who care about this trend.

The amount of apparently-careless destruction happening in the area to cram in more houses *is* a bit horrifying, I have to agree.

We moved to Lake *Grove*, not Lake *Another-Boring-Flat-Field-Filled-With-McMansions-and-Paving-Like-Anywhere-In-California*

We recently moved here from Eastmoreland, where it has been a huge problem, and this kind of thing is so difficult to stop once it's started. Lot splitting, destruction of charming and historic homes, building of huge McMansions, beautiful trees getting cut down--all can lead to the degradation of beautiful neighborhoods. Email the city planner now!
Destruction of neighborhoods
Destruction of trees
Destruction of the character of our town
Increased density
Look-alike McMansions crowded onto smaller lots
Losing what we value about Lake Oswego


Friday, July 22, 2016

Mayoral race gone Quackers

This week there is a Citizens View column by Kent Studebaker titled, "Bugs, Daffy, and the race for mayor" and a Letter to the Editor by Carol Riggs titled "Positive Energy". I couldn't help but notice numerous similarities in the pieces, pulling together what I assume to be a coordinated theme for the campaign - at least for this week.

I expect similar themes to be revealed in the coming weeks and months' right up to Election Day.  There are suggestions that the string of publications favoring Kent are orchestrated by political strategist, Elaine Franklin, and although the rumor seems plausible, we haven't been able to peek behind that curtain to confirm it.

I may be daffy, but this has me buggy.

Very little has been written about or by the candidates so far except the Review announcements of candidacy, an opinion piece by Dave Berg, a couple by Studebaker, and a series of weekly letters supporting Kent
Below are quotes from this week's articles.  Studebaker's words are in red, and Riggs' are in blue.  See what you think.  Read the entire pieces on the LO Review website in the Opinion section.


My friends comment that I need to react more. That’s not my style...
Quietly and without pomp, Kent Studebaker has led our little city.

... a first-rate city needs first-rate infrastructure in order to attract new taxpaying residents and businesses to support our schools.
His vision of a lively downtown with the North Anchor project will attract new business dollars and a tax base to support our schools.

Prioritizing infrastructure, police, fire and operations may sound boring, but we still generously supported parks and the arts and set aside $400,000 for bikeways and pathways without raising taxes.
prioritizing infrastructure, police, fire, parks, the arts and bike pathswithout raising our taxes.

... and put this city in a position to go forward into a great future.  Lake Oswego is headed toward a very bright future. 
...who was also very excited about the future our city was taking. 

I look forward to four more years...
I look forward to the next four years....

Saturday, July 16, 2016

Quote: Freedom and Obligation

Freedom and Obligation 
2016 Commencement Address
Clarence Thomas 
Associate Justice, Supreme Court of the United States
May 14, 2016

"Likewise, if we continue to consume the benefits of a free society without replenishing or nourishing that society, we will eventually deplete that as well.  If we are content to let others do the work of replenishing and defending liberty while we consume the benefits, we will someday run out of other people's willingness to sacrifice - or even out of courageous people willing to make the sacrifice."  
"Liberty is an antecedent of government, not a benefit from government." 

Stormwater hardships predicted

From the July 2016 issue of the HBA Home Building News:  (HBApdx.org)

Around the Region
Local government building and development issues update

Lake Oswego Stormwater and Permitting Process Being Reviewed

The Home Builders Association recently met with City Councilor and member Skip O'Neil to address stormwater regulations and other permitting issues in Lake Oswego that are creating hardships, delays and excess costs on homes being built and remodeled.  At this stage, plans have become stagnant, with the city not moving forward to address the issue.  The Home Builders Association is working to establish relationships to help find a resolution to the City's drainage problems that does not place an added cost on residents and builders.  

X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X 

Good luck on those resolutions.  Even if the City magically came up with the money and the means to create a city-wide stormwater conveyance system, on-site stormwater "facilities" are the new standards for stormwater control.  EPA and DEQ rules would most likely not allow the City to avoid lot-by-lot drainage systems because this would be considered "backsliding" on environmental standards.  These systems, the ponds, dry wells, and swales, are all geo-engineered, GPS-tagged, recorded, documented and tracked as EPA facilities.  

Recall that the Engineering Department first proposed 200 sf of new impervious improvements or simple re-roofing as the trigger for requiring on-site stormwater facilities, where prior standards were 3,000 sf.  Even that was a lower standard than necessary - the DEQ/County threshold was, and still is, 5,000 sf.  After some vocal criticism, the final threshold was approved at 1,000 sf.  

The entire City Council approved the 1,000 sf threshold plan.  So did the HBA in a letter to the 
Council.  I assume they came to this number as a "compromise" that was somewhere between the most and least restrictive options.  Who sets the parameters, and why doesn't the council demand more?  Are these bodies now seeing the damage they bought into?  They were warned, but now express dismay about what their positions mean.  

Their buyer's remorse doesn't help homeowners much.

From Exhibit G6:  Letter from HBA Metropolitan Portland, City Council Public Hearing (Letter written by Jon Kloor 11/23/15)

"Notably, I applaud that the City has chosen to increase the minimum review size on small projects from 200 square feet to 500 square feet; put in place a process in which smaller project stormwater review applies only to new impervious areas, and for adding tools to the manual to streamline the process for smaller projects. However, I would respectfully ask that the Planning Commission consider further increasing the minimum review size from 500 square feet to 1,000 square feet. By increasing the minimum review size to 1,000 square feet, the City would be adopting standards in line with many of the surrounding jurisdictions, as well as save home owners thousands of dollars in compliance costs associated with a home remodel.

Friday, July 8, 2016

Assessing the "need to know"

Your Property

  • Is there an expectation of privacy* in one's private* property? 
  • Are there laws that protect a homeowner's (or renter) rights of privacy and protect against unwarranted trespass?
  • What information is necessary for the city to know?
This is about a citizen's right to private property and privacy, but the subject centers around the Tree Code.

privacy (n.) Look up privacy at Dictionary.com
1590s, "a private matter, a secret;" c. 1600 as "seclusion," from private (adj.) + -cy. Meaning "state of freedom from intrusion" is from 1814. Earlier was privatie (late 14c. as "secret, mystery;" c. 1400 as "a secret, secret deed; solitude, privacy"), from Old French privaut√©

There is perhaps no other code in the city that controls a homeowner, their property, and their financial and personal well-being more so than the Tree Code.  It is no surprise that the Tree Code is code citizens hate most.  One person I talked to about how to get rid of a (invasive) holly tree called the city a dictatorship.  She is not alone.  People within earshot agreed - some wanted to move based on the unnatural interest in their property, and the over-reaching regulatory environment they get from the city - especially the tree code.

Question: Is the information the city is asking for "reasonably required" to get a tree removal permit?  (NO!)  Does the information cross the line to invade our privacy?  (YES!)  Can the city use the information in any way to help search for violations of the tree code or somehow collect data on your trees or property?  (MAYBE)

All Tree Permit Applications require a site plan of your property.  The applicant draws the footprint of the house and other buildings on the lot, writes the address, and shows the right of way, streams and wetlands, lake, etc.  The applicant must then identity: "Location, Diameter, Size and Type of Trees";  then: Mark trees to be removed with a dark "X";  lastly, give information on proposed replacement trees.  See LO's example of a site plan below.

The wording of the directions is unclear about which trees are to be identified, located and labeled.  It just says "trees", not "all trees", or "all trees over 6" DBH".  One might assume the wording includes just the trees to be removed, but the example site plan shows multiple trees on it with only 2 marked with an "X".  In drafting, pictures count as legal documents just as words do.  What is the intent of this directive?  How much information is reasonably necessary?

I asked a planner who deals with tree permits why all trees on a lot needed to be identified.  She said, "Oh, no one does that!"  Great!   If some people aren't doing it, and their permits are approved, this should be good enough for everyone else.  Why string the rest of us along with a bogus or badly written application?  

The Application diagram and wording need to clarify that only trees identified in the tree permit should be on the site plan.  
  The Application Form has not changed, so here we are.  Why would the city like to know what trees are in your yard?  Just curious, or what?   There is NO need to locate and label every tree, and lots of people don't, so it's time to change the Application for Tree Removal: Combine both of the tree  labling requirements into a single directive for trees being cut only.  (This counts as Change #2; Change #1 is dropping the waiver.) 

Thursday, July 7, 2016

Hoops, hurdles and hassles

Asking "Permission" to Cut 
Your Own Trees
Don't trust, just verify.
Navigating the maze of tree regulations in Lake Oswego

The Oregonian February 2, 2015
Timely review for a burdensome tree code: The 
Editorial Board
 That doesn't mean [Lake Oswegans] are happy with everything, though. They're not, and the thing that bugs them most, they said in 2013, is the city's tree code, which was adopted way back when Richard Nixon was president. More than half of those surveyed said tree regulations are too strong, compared with a mere 6 percent who said they're not strong enough. 

Mayor Kent Studebaker says constituents complain to him occasionally about the process homeowners must go through to remove trees wider than 10 inches at breast height, the size at which the code becomes remarkably stringent. Other people, he says, get upset when they run into problems cutting view-blocking trees that  were small when they bought their homes. City residents may not cut trees greater than 10 inches in diameter "for the sole purpose of providing or enhancing views."

And then there are the fees, the mitigation, the mandatory notice to neighbors, who may object and appeal, and so on. Combine the tree code's complexity and little-known roadblocks with the tall pile of permits issued each year - more than 1,000 in a city with a population of roughly 38,000 - and you can understand the widespread frustration. Unless public sentiment has changed dramatically since 2013, there's likely no small interest in meeting the City Council's aspiration to "balance the goals of community aesthetics and environmental quality with the preservation of property rights and individual freedom." Those things certainly aren't balanced now

And who knows? Perhaps the 2016 iteration of Lake Oswego's code will even allow homeowners to cut down big trees that block their views. It's a strange code, indeed, that allows a neighbor's interest in a tree to trump that of the person who bought the land on which the tree stands, who owns the tree, and who may have paid    dearly for the view the tree blocks.

How do the revised Tree Codes stack up?  

Have the Tree Code Amendments made the code more user-friendly, with less stringent regulations for citizens who want to cut a tree?  Have they resulted in less administrative processing and cost for city staff time?  Will they make the urban forest healthy and more sustainable?  These were the objectives the City Council gave to the Ad Hoc Tree Code Committee.  How well did the committee do, and how well did the Council do when discussing and approving the modifications?

I cannot list all the detail of the code changes - please read the draft in the Staff Report contained in the Agenda for the July 5 City Council Public Hearing.

Important:  The Tree Code Committee was self-selected. It was not a cross-section of of Lake Oswegans, and only a minority felt the tree codes were too restrictive - exactly opposite of what the city survey showed.  There were at least 4 married couples with each spouse having a vote. A large percentage of members came from the First Addition where mature trees are being cut daily to make room for large houses on 5,000 SF lots, changing the character of the neighborhood.  These are development code problems, not tree code issues.

NOTE: USC was on the Tree Code Committee and one of the minority group.  USC envisions a more trusting and open government and citizenry.

What didn't change:
1.    The cumbersome Type II application, filled with unnecessary and intrusive questions and information remains unchanged.  Why does the city need to know why you want to cut a tree?  Why does the property owner constantly need to verify their tree status?  Why does the city want permission to do a search of your property for prior violations of the tree code?  
2.    Homeowners still can't cut down trees for the sole
purpose of retaining a view.
3.    Type I Tree Permits still allow only 2 trees per year with a limit on tree size.
4.    No accommodations were made to make the city safe regarding wildfire. 
5.    There is still a questionnaire that asks the resident to defend their reason for cutting down their tree - so staff can see if "criteria" is met and a resident's reasoning and verification is good enough.  
6.    The emphasis continues to be on retaining large trees, but in doing so, creates a perverse incentive for residents to avoide planting large-scale trees for the next generation of a healthy, sustainable forest.  There is no understanding that people don't want to have government control over their property and will get rid of whatever invites government interference.
7.    There is still a Tree Topping Permit, though I don't believe very many people know a permit is required and that topping a tree is against the law.  Yet trees are topped all the time (still not a good idea).  The code does not prevent tree topping. Enforcement is nil.  The code is a joke.  Why do we have this code?
8.    You still need a permit to cut down a Dead Tree.  AND, the city manager may require you to retain the dead tree for wildlife habitat! 
9.    You need to pay for an ISA certified arborist to assess a Hazard Tree.  If it leans, if it's too close to the house, if the roots are getting into your sewer - you have to prove that tree removal is really necessary.  ALSO, the tree stays if there is any way you can minimize the damage to infrastructure without taking down the tree.  (Who pays for the damage if the city's wrong?)
10.   There's a Street Tree Permit if you have a tree in the public ROW.  You may have planted the tree, but it's not yours if it's in the ROW - you just have to take care of it.  And replace it if you don't like it any more - with a tree the city approves of.  Will people be planting street trees in the ROW?
11.   There are still too darn many permit types -  about 6?   A check box on the main page should be all that is needed.   (Then get rid of the waiver, the questionnaire, and fix the site plan....)
12.  There is still that Constitution-busting a over the city asks you to sign.  (Should you give up your rights to due process?)

Changes that make life easier for residents:
1.    Type I Permits have moved up the size limit to trees between 6" to 15" DBH.  (Was 5" to 10")
2.    Trees under 6" can be cut without a permit. (Was 5")
3.    A Dead Tree Permit can now include a tree that is on life support and not actually dead yet .
4.    Fruit trees do not need a tree-cutting permit.
5.    Posting public notices will allow comments and appeals for one week, not two.  
6.    Residents may now "thin" their trees if they have too many, without having to replace them with new trees, but anyone can still pay a mitigation fee to get out of replacing trees if they can afford it.   (Unequal justice.)   

New codes were added or  enhanced:  (How does this simplify code?)
1.   Following an appeal by a judge who said the code did not require a landscape "plan" before he 
cut his tree (Type II Permit), the City plugged that hole with the update by explicitly requiring a landscape plan.  No more sloppy interpretation of that code, except... What is the landscape plan supposed to look like?  And why can't it just be for cutting just one tree?  This code is very subjective - expect uneven application and multiple appeals.  Again.
2.    The newly  required Landscape Plan cannot be for the sole purpose of cutting down trees.  (Why not?)
3.    If you cut down a native tree, you have to replant using a native tree.  (Why? I know why, but really, are homeowners now required to maintain a wildlife habitat?)  

Politicizing our trees and our rights

Statism in Lake Oswego
In political sciencestatism is the belief that the state should control either economic or social policy, or both, to some degree.[1]  Wikipedia

Local Government continues its reach into our lives and property - to control our behavior and modify our Constitutional rights without care for the citizens.

Lake Oswego is trampling on the Fourth Amendment - the right to deny warrantless searches on private property.  Why?

This waiver is included in the Tree Removal Application.  There is a signature line that follows the statement alnowledging the applicant agrees with it.
I grant permission to City of Lake Oswego employees to enter the above property to inspect the trees requested for removal and investigate any trees that may appear to have been already unlawfully removed. I agree to restrain any dog(s) on inspection day. 
Signing this waiver gives the city the right to do a warrantless search of your property.  The Fourth Amendment protects citizens from this, but not if a person has signed a waiver giving up this right.

Why does the city need to investogate (search) for violations that may have occurred in the past in order to execute a permit to cut a tree now?  It doesn't.  Municipal codes allow the city (City Manager and Staff) some broad powers.  One is required to use the city permit application, but also in the code appears this special power:  "Any other information reasonably required by the City".   This waiver is not reasonable or necessary!  

Who calls the city on these practices if not the citizens?  Who stops this abuse of the city's regulatory authority?  Obviously no one in City Hall, including the Mayor and City Council who had an opportunity to do something about both it - the waiver and the permission for staff to add requirements to the permit process - on Tuesday, 7/5/16, but let it pass without a whisper.  (They were all informed about this issue prior to City Council Meeting.)
Where rights secured by the Federal Constitution are involved, there can be no rule-making or legislation which would abrogate them." Miranda v. Arizona, 384 US 436 (1966)
Is this legal?  If an applicant finds the waiver to be objectionable, is he/she signing it voluntarily, or under duress?  Can the state require one to give up one right (protection against warrantless searches) in order to exercise another (excercising their property rights)?  What would the city do if you didn't sign the waiver?  

Disclaimer:  I am not an attorney.  I am not offering legal advice or a legal opinion.  This is a commentary of a legal subject and I try to provide information from a reliable source.  I strongly encourage readers to do their own research and consult an attorney about their own situation should the need  arise. The website below has a number of links and there are many other sources of information.

The Fourth Amendment  (Cornell Law School)
The Fourth Amendment of the U.S. Constitution provides, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

States can always establish higher standards for searches and seizures than the Fourth Amendment requires, but states cannot allow conduct that violates the Fourth Amendment

The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.

search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.

To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable cause that a search or seizure is justified.  An authority, usually a magistrate, will consider the totality of circumstances and determine whether to issue the warrant.