Two Centerpointe Dr 6th Fl Phone: (503) 598-7070 Lake Oswego

Two Centerpointe Dr 6th Fl Phone: (503) 598-7070

Lake Oswego OR 97035 Toll Free: (888) 598-7070

www.jordanramis.com Fax: (503) 598-7373

LEGAL MEMORANDUM

TO:

West Linn Planning Commission

FROM:

Dan Olsen, Contract City Attorney

DATE:

May 5, 2017

RE:

File No. DR-17-1 Two-Story Office Building

Our File No.

50015-36839

This memo provides a short analysis of several of the legal issues raised at the April 19, 2017

hearing and in subsequent submittals.

1. Ownership and control of the trees. There is evidence suggesting that the tree closest

to Willamette Falls Drive straddles the property line, the middle tree appears to slightly straddle

the line and the farthest back tree is on the applicant’s property although it is alleged that trunk

leans over the adjacent lot. (Sutherland 4/26/17 submittal).

There is no Oregon law on the status of “boundary trees”. Courts in approximately 21 states

have held that such trees are owned in common and that both property owners must consent to

removal. In some states, however, the rule is that a tree planted on one parcel that grows across a

boundary line does not automatically become common property. Rather, it becomes so only if

both landowners have a history of treating it as jointly owned either by agreement or conduct.

See e.g. Love v Klosky, 2016 COA 131(2016), Happy Bunch, LLC v Grandview North, LLC, 142

Wash. App 81 (2007). The Washington Court of Appeals adopted the majority rule in part

because of the Washington timber trespass statute. ORS 105.810, the Oregon timber trespass

statute, is very similar. I think it likely that an Oregon court would adopt the majority rule.

At common law, branches or roots that cross a boundary line may be cut provided doing so does

not destroy the tree. There is no Oregon case, but it is generally thought that this rule would be

applied. Thus, each property owner probably can trim branches and roots on its side as long as

May 5, 2017

Page 2

doing so does not materially damage the viability of tree. Whether this would extend to

trimming the trunk is unknown.

2. City authority/liability regarding boundary tree. Concerns have been raised about

whether the City is interfering with the neighbor’s property rights if it approves a development

plan that depends on removal of boundary trees. The flip side is whether the City may deny an

application on the grounds that development would require removal of a boundary tree.

WLMC 8.570 A.1 exempts from the tree removal permit requirement, “any tree which has been

approved for removal through the development review process…as part of the ultimate

development of the site.” CDC 55.100 B.2 provides that trees that are considered “significant”

by the City Arborist…shall be protected pursuant to the criteria of subsections (B) (2) (a)

through (f) of this section.” It recognizes that “this code section will not necessarily protect all

trees deemed significant.”

The Code provides that projects on Type I and II lands “shall protect … all significant trees by

limiting development in the protected area.” Further, development of such lands “shall require

the careful layout of … building pads … to avoid significant trees…” This clearly prohibits

removal of significant trees on Type I and II lands.

In contrast, projects on non-Type 1 and II lands “shall set aside up to 20 percent of the protected

areas for significant trees…up to 20 percent of the non-Type I and II lands shall be devoted to

the protection of those trees by limiting development in the protected areas.” Development

“shall also require the careful layout of …building pads…to avoid significant trees … pursuant

to this code.” Finally, if “more than 20 percent” of the site has significant trees, “the developer

shall not be required to save the excess trees, but is encouraged to do so.”

The applicant asserts that preservation of any of the trees would take up more than 20% of the

site (given the way tree protection areas are measured.). In other words, requiring preservation

of any of the trees would exceed the authority to require that “up to 20%” of the site be

preserved. If true, it is fairly clear that this criterion does not provide a basis for denial or

conditioning to prohibit tree removal because it would require the developer to set aside more

than 20% of the site. Nor could I find any Code provision providing a basis for denial on the

grounds that a significant tree is on a boundary.

Review of a development application is limited to whether it meets the applicable Code

standards. Approval of a development permit is a determination that the application is in

May 5, 2017

Page 3

compliance with the Code. It is not a determination of ownership or private property rights and

does not authorize the taking of a private property right. This is particularly true where, as here,

litigation may be necessary to determine the scope and nature of the property rights. Should the

applicant proceed, it is taking the risk that removal of some or all of the tree(s) constitute a

“timber trespass” for which the applicant would have civil liability, including potentially treble

damages and attorney fees. ORS 105.810.

I would, however, recommend that any approval include the following language:

Approval of this application does not authorize the applicant or any other person to enter

upon, remove or damage any other person’s property. Any tree removal shall be at the

applicant’s sole risk.

3. Relationship between Chapter 55 ‘Design Review’ and Chapter 58 ‘Willamette

Falls Drive Commercial Design District’.

Counsel for Sutherland Properties, LLC. asserts that the application does not meet CDC 55.100

B.6.b which states that the proposed structure “scale shall be compatible with the existing

structure(s) on site and adjoining sites.” Further the design must respect and incorporate

prominent architectural styles, rhythm of windows, scale etc. of “surrounding buildings”. CDC

55.100 B.6.b states that “it is appropriate that new buildings should architecturally transition in

terms of bulk and mass to work with, or fit, adjacent buildings.” “Contrasting architecture shall

only be permitted when the design is manifestly superior to adjacent architecture in terms of

creativity, design and workmanship….” CDC 55.100 B.6.c. He asserts that Chapter 58 does not

compel the size and design proposed and that it can be designed to comply with both Chapters.

The applicant asserts these provisions of Chapter 55 conflict with Chapter 58, and the latter

controls. The Historic Review Board recommends approval of the proposed design as best

implementing Chapter 58.

Ordinances are to be interpreted to implement the intent of the legislative body. To do so, one

first looks to the text and context of the provisions, consider relevant legislative history and

apply certain rules of interpretation. These include that more specific provisions control over

general and that related provisions should be read together so as to give effect to all. There is no

express provision indicating that Chapter 55 does not, at least to some extent, apply in the

Willamette Drive Commercial District. The parties agree that Chapter 58 is more specific.

Accordingly, the real issues are whether Chapters 55 and 58 conflict. If not, then it appears the

May 5, 2017

Page 4

applicant must address both. To the extent that provisions conflict, the issue is whether the

conflict reasonably may be reconciled or minimized. If not, the applicable provision of Chapter

58 would appear to control.

Purpose statements are not standards but provide guidance for applying standards. It seems

reasonably clear that Chapter 55 is focused primarily on preserving the status quo by

emphasizing compatibility. Chapter 58 seeks to encourage “rehabilitation and revitalization” of

the Willamette Commercial District, “reinforce commitment to existing commercial buildings of

the 1880-1915 period and complement the adjacent residential district” and encourage a sense of

historic identity for the area and the City. It focuses more on creating a particular identity, e.g.

the historic commercial district.

It appears that the adjacent bungalows are non-conforming. This does not necessarily mean that

the Chapter 55 does not require them to be accommodated. But typically non-conforming

structures are not favored, for example CDC 66.070 provides that if they are destroyed they must

be rebuilt to current standards. Over time this could create some anomalies or difficulties in

administering CDC chapter 58. For example, if one of the bungalows is destroyed, would its

replacement be required to be compatible with the design of the proposed structure, which was

altered to address the now gone bungalow?

Some problematic specific standards are:

CDC 58.090 C.1.a Front setbacks to be consistent with the “predominant building line”.

Staff interpreted “predominant” to mean the commercial structures, which are both the existing

and the encouraged predominate building type.

CDC 58.090 C.1.b Lot coverage. This provision expressly requires consideration of

impacts on “abutting residential and other uses.” It does not reference abutting structures. So it

could be read to be concerned more with whether an adjoining use would lose functionality or

impacts on use rather than aesthetics or architectural compatibility.

CDC 58.090 C.3-4 Building height. Maximum 35’, with the first story being a

minimum of 10”. Further, buildings “shall emphasize the vertical” with height ratio of 1.5 to 1.

This seems inconsistent with typically residential bungalow styles, perhaps suggesting they

should not drive design.

May 5, 2017

Page 5

CDC 55.100 B.6.a states that proposed structures “shall be compatible with the existing

structures” on “adjoining sites.” It mandates “contextual design” which means respecting

“prominent architectural styles, building lines, roof forms, rhythm of windows, building scale

and massing of surrounding buildings.” Again, the issue is whether it is possible to comply with

the commercial, vertically oriented requirements of Chapter 58 if adjacent bungalow styling

must be accommodated. Further, note that this provision references “prominent architectural

styles” suggesting one may focus on the overall building types existing and encouraged in the

Willamette Falls Commercial District. It also uses the term “surrounding” rather than “adjacent”

buildings, again suggesting that focusing on more than the immediately adjacent residential

structures is permitted.

CDC 55.100 B.6.b uses the term “should” and “appropriate”, thus encouraging but not

mandating transition in terms of bulk and width to fit adjacent existing buildings.

CDC 55.100 B.6.c is stronger, stating that “contrasting architecture shall only be

permitted” under certain circumstances, such as if the design is manifestly superior to adjacent

architecture…” But, again, Chapter 58 appears to mandate architecture that contrasts with

residential bungalows. So one question is whether the design standards in Chapter 58 may fairly

be read as adopting “superior design” standards for the Willamette Drive district.

Given these ambiguities, it is not possible to be certain how a court would interpret the CDC in

this rather unusual and likely unanticipated factual context. Accordingly, the Planning

Commission must make its best determination. If appealed, the City Council will consider the

Planning Commission interpretation but has responsibility for code interpretation. Its

interpretation will be given deference on review by LUBA and the courts provided it: "plausibly

interprets its own land use regulations by considering and then choosing between or harmonizing

conflicting provisions, * * * unless the interpretation is inconsistent with all of the 'express

language' that is relevant to the interpretation, or inconsistent with the purposes of policies

underpinning the regulations." Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010;

ORS 197.829(1).2

4. Authority of Historic Review Board

CDC Section 99.060 D.2 provides that Historic Review Board is a decision maker for certain

applications involving historic resources but is authorized only to “Make recommendations to the

approval authority specified in this section regarding the following:

May 5, 2017

Page 6

c. Class I or Class II design review on a property within the Willamette Falls Drive

Commercial Design District that is not a historic landmark or within the Willamette Historic

District;

d. New construction within the Willamette Falls Drive Commercial Design District that

is not a historic landmark or within the Willamette Historic District;

Accordingly, although the Planning Commission should consider the Historic Review Board’s

recommendation, it is only entitled to as much weight or deference as you deem appropriate and

you are not bound by it in any way.

Please contact staff if you have questions or concerns regarding this advice that you would like

to alert us to or discuss prior to the hearing on May 10.