MINUTES FOR THE CONTINUED MEETING
ASHLAND CITY COUNCIL
January 22, 2004 - 7:00 p.m.
Civic Center Council Chambers, 1175 E. Main Street
CALL TO ORDER
Mayor DeBoer reconvened the meeting of January 20, 2004 at 7:05 p.m. Councilor Laws, Amarotico, Hartzell, Jackson and Morrison were present. Councilor Hearn has been excused by the Council due to a direct conflict of interest.
1. Appeal of Planning Action 2003-127, a Request for a Land Partition and Site Review to Construct a Multi-Floor, Mixed-Use (Condominium and Commercial) Building with Underground Parking upon the area Occupied by the Existing Ashland Springs Hotel Surface Parking Area. An Exception to City Downtown Design Standards is requested to Allow Recessed Balconies upon Street Facing Elevations (VI-B-(3)).
Mayor DeBoer had read the newspaper article, received, read and forwarded emails.
Morrison had read the newspaper article and talked to staff in regards to process and procedure. Hartzell had read the newspaper article, forwarded emails, and talked to staff about process. Amarotico received but did not open email.
Laws had read the newspaper article.
In Opposition of Applicant
Pam Vavra/758 B Street/Stated that this is a matter dealing with whether there are valid legal reasons to overturn the Planning Commissions' decision. Vavra explained this project does not meet the requirements for public and commercial space, and believes it would be difficult to stop someone from taking up residence in one of the commercial use condos. Vavra stated the Planning Commission was mislead to believe that City Attorney Paul Nolte's opinion was the only permissible interpretation, and feels they were pressured into making a decision based on inadequate information. Vavra feels it is the Council's duty to overturn the Planning Commissions' decision.
Eric Navickas/711 Faith Avenue/Sympathizes with the high-density housing issue but does not feel these luxury condos fit the definition of high-density housing. Navickas explained the problems associated with luxury condominiums, and read aloud a section from the book "Self Destruction of Diversity". Navickas stated the citizens should not rally around this effort for high density in downtown, and stated this project exploited the window of opportunity around the "Big Box" Ordinance. Navickas spoke on the legality of this issue; stating deference will be given to the City regarding interpretation, and stated the previous interpretation was a gross distortion of the language.
Philip Lang/758 B St/Letter was submitted and was read into the record by City Recorder.
Dale Shostrom/1240 Tolman Creek/ Stated he is Chairman of the Historic Commission and noted he was part of the minority members who did not approve of this project. Shostrom explained that the Historic Commission met three times with the applicants and each time they were provided a new set of plans with significant changes. Shostrom objects to the buildings huge bulk and scale, and feels it is not compatible with downtown or in alignment with the Site Design & Use Standards. Shostrom suggests scaling the building down by "stair-stepping" it down the hillside to mitigate the height and breakup the large rectangular form, or possibly notching it down in places for one or two stories which would create sunny courtyards and break up the facade and the continuous roofline.
Randy Ellison/92 8th St/Commented that they were here tonight because the previous City Council attempted to change the meaning of the words. Ellison stated that interpretation comes in when things are vague, and there is nothing vague about "no new buildings...shall exceed gross sq. footage of 45,000". He expressed that now a developer has come along, and wants to use what the City did previously for the community, for their own personal gain. Ellison urged the City Council to admit previous errors and reverse the Planning Commissions' decision.
Don Montgomery/311 Sheridan/Stated the easiest thing the Council could do would be to allow this application to stand and let the project go forward. Montgomery explained this structure is "really big" and exceeds the 45,000 square foot limitation by nearly 100%. He also stated the proposed structure would detract from the small town and historical character of Ashland. Montgomery asked the Council to consider the message they will be sending to the public if they do not deny this application, and urged them to find the courage to deny this application.
Stan Druben/125 Brooks Lane/Urged the Mayor and Council to reject the Bemis Big Box. Druben explained this project is bad for Ashland because: 1) it will contribute to crowding downtown, without providing significant affordable housing, 2) it will add to the traffic problems, air and noise pollution, and take away from the City's character, and 3) the Bemis' short term gain would result in a long term loss as the town became something different.
Bryan Holley/324 Liberty/Explained who the "Citizens for Responsible Government" were and that there had been no campaign of misinformation. Holley discussed the Tree Commission meeting of October 9th, 2003, explaining they were unable to conduct a legal review due to a lack of commissioners and noted the incomplete plans they were provided. Holley stated the Council has the power as a quasi-judicial hearing body to make decisions, and urged them to support the appeal.
Larry Kellogg/415 Merrill Circle/Urged the Council to overturn the Planning Commissions' approval of this project. Kellogg presented a watercolor painting of Ashland Springs Hotel and examples of what this project may look like if developed.
Ramona DeVaul/865 Palmer Rd/Read aloud sections of the Staff Report for the Bemis Project dated October 14, 2003. DeVaul stated the project was submitted in an incomplete form, and stated this building would change the skyline, view, and the character of the community. She also expressed concern that the approval of this application could open the door to other developers, and urged the Council to deny this project.
Debbie Miller/160 Normal/Read a statement on behalf of Caroline and Bill Kirkman, who feel this project did not provide enough parking for hotel functions, and also felt that the size of the building is overwhelming and does not fit the spirit of the community. Miller, now representing herself, stated that traffic, parking, and safety measures are not adequate. Miller stated the impact of such a large structure could not be minimized, and explained the community consensus is that this project is too big for downtown, too big for the nearby neighborhood, and too big for the community. She asked that the Council deny this project.
Jack Hardesty/1575 Dogwood Way/Stated that his objection to this project is with the scale and how City authorities have handled it. Hardesty explained the need for more moderately priced housing, and questioned the need for more high-level cost commercial rentals downtown. Hardesty noted the September 16th, 2003 Council Meeting, explaining the Big Box Ordinance was passed after a two week delay due to the City Attorney and Community Development Director not being able to complete the language in time. Hardesty also noted the Planning Departments' 3 month delay in bringing the Planning Commissions recommendations to the Council. If the Council had been informed properly, the window of opportunity could have been closed, and none of them would be there tonight. Hardesty is shocked and dismayed by the record of events, and asked that the Council consider the public's desires and uphold the appeal.
David Williams/1023 Morton/Appreciates what the proponents have done in remodeling the historic Ashland Hotel, but feels the Historic Commission has erred in their assumption that this project is consistent with the historical aspect of Ashland. He also believes that the Planning Commission has erred in their interpretation of the big box ordinance. Williams explained that 16 residential parking spaces for 12 condominiums is not realistic, and also noted the lack of parking for the 2 business condominiums. Williams stated it is within the power of the Council to correct errors made by the Historic and Planning Commissions, and urged the Council to reject this project.
Bill Hicks/190 Vista/Explained he had conducted a telephone survey and everyone he spoke with knew of this project and no one had anything positive to say. Hicks asked that the Council look deeply at the situation to find reasons to deny the application, and stated the Council's decision on this project will resound forever.
Chuck Lawrence/607 Forest/Stated he does not oppose the project outright, but does object to the scale. Reminded the Council that the Bemis' were aware of the understanding of the 45,000 sq. ft. limit while they were developing these plans. Lawrence encouraged the Council to deny this project.
Nolte clarified the memo addressed to the Council from January 20, 2004, which contained the Legal Departments' opinion regarding the authority if the Council reinterprets a provision that has previously been interpreted. This memo was sent to all of the parties, including the attorney for the applicant. The applicant then responded, and today the Legal Department sent out a response to their opinion. Staff has concluded that the case primarily relied upon by the Council, for the applicant, does not preclude this Council from making a reinterpretation. It has not been an issue as to whether the 45,000 sq. ft. is applicable (all parties have agreed that this is a standard that is applicable). The controversy is over "what does it mean". Nolte explained that if the Council desires to reinterpret at this time, than the reinterpretation may be upheld because of the extensive public process that has already taken place. Nolte noted that if the Council does reinterpret at this time, they must allow time for the parties to comment or argue the reinterpretation
Nolte stated that Assistant Attorney Mike Franell believes that more likely than not, a reinterpretation by the Council would be upheld. But, Nolte is not so confident and stated that may appear that the Council changed the standards after the application had been filed.
Nolte responded to council, regarding how they handled the Big Box issue, that he could not give a clear, concrete answer as to what a review committee would decide. He stated that the fact is, that there had been an extensive public process, and the Planning Commission had indicated that defining 45,000 gross sq. ft., as footprint is not appropriate.
Mayor DeBoer felt that the original Big Box Ordinance was very loose in its writing, and that it did not speak about parking. When the first reading of the Big Box Ordinance was before the Council, it excluded parking. When he initially looked at the proposed project, he saw a 34,296-sq. ft. building, which fit the gross sq. footage. Under the first reading of the new Big Box Ordinance, this project would have been legal. He stated that the Council then changed the ordinance, at second reading, to include parking in the 45,000-sq. ft. limit. At that time, based on the first reading of the ordinance, he felt comfortable that what he had said to the public had been honored, because the building was less than 45,000-sq. ft. if you exclude parking.
Community Development John McLaughlin clarified for council that there had been no discussion by the Planning Commission of the footprint at the 1992 meeting regarding the Big Box.
McLaughlin responded to the Council, in regards to the elevation standards and visual divisions mentioned, that it is a design standard, and that the Planning & Historic Commissions found that this application met that standard because it is broken up into three sections.
Senior Planner Bill Molnar clarified that buildings, over 100 feet in length must adhere to the standard that requires them to break up the facade. McLaughlin clarified for the Council that the ordinance also regulates the distance between buildings, and relayed that the Planning Commission found that since there is a property line between the Ashland Springs Hotel and the proposed building, that standard would not apply.
Council noted that the application included a request for partition, and asked if the applicant could sell the property back to the hotel at a later date. Staff confirmed that they could.
McLaughlin clarified that the vehicle trip generation numbers were based on a variety of studies, from many different cities of different sizes. McLaughlin explained the trip generation is a tool to provide the best guess at the number of trips, but can vary depending on localized conditions. Generally speaking, downtowns generate fewer trips than suburban areas because the retail and commercial sites are linked with other destinations.
Nolte explained for the Council, regarding ordinance interpretations, that the Planning Staff interprets ordinances on a daily basis. The Council is not bound by Planning Staff's interpretation, and if an issue ever arises and comes to the Council in an appeal, they can interpret it differently and still get great deference from the courts. The courts will uphold the Council's interpretation unless it is clearly wrong. This same principle applies at the Planning Commission level. The Planning Commission can make an interpretation of an ordinance and apply that interpretation uniformly for years. But if it comes to the Council, the Council is not bound by their interpretation, and if they make a different interpretation the courts will give them great deference. The conflict arises in this case because the interpretation was already made by a previous City Council.
Molnar stated that it is staff's understanding, regarding the alleyway between the hotel and the proposed building that larger retail spaces will openings and doors that would go out onto the pedestrian court.
Council questioned why they were not informed of this project when the process of developing a new ordinance was being done. It was noted that at previous meetings the Planning Department assured them there was nothing in the works.
McLaughlin stated they believed the process of the Big Box ordinance was near completion, and that staff had informed the applicants. McLaughlin noted that there had been many delays and that there was no ethical reason for staff to withhold any information from the Council.
Comments by the Council were made that had they known there was an application in process, that they would have speeded up the process to complete the ordinance.
McLaughlin explained that the timeline provided by Bill Street is accurate, however the reasons for the delays are many. He noted the reason for the delay between the Planning Commissions' recommendation and the recommendation being brought to the Council was because they wanted to schedule a Study Session, and noted the ordinance was bumped from its first reading due to the Mt. Ashland Expansion issue.
Staff informed Council that all of the public processes were done correctly.
Council asked Staff if they discussed the timing of the application and the process the City was going through when they met with the Bemis' in June.
McLaughlin clarified that staff had discussed the timing of the application and process the City was going through when they had met with the Bemis' in June. That staff had let them know that the process was near completion and their understanding of where the Council was heading. McLaughlin added that at this point, they had not received a pre-application from the Bemis, or received any indication they would be pursuing this project.
Council asked how tall the proposed building would appear to when facing the structure from the back of the hotel. McLaughlin answered about 50 ft. tall, which is four or five stories.
Council noted that the reasons given for delay's are not pertinent, and stated from the beginning of the series of meetings, it was clear 45,000 meant gross sq. ft. and not footprint, and up until the first reading, it was not going to have any exceptions in the downtown area.
Councilor Morrison explained the timeline of events, stating in 1992 the Council adopted the ordinance that had a 45,000-sq. ft. limitation, and for eight years this was the law. In 2000, the footprint interpretation first appeared in the OSF parking lot drafted findings. They are not sure who wrote it, or why it got there. Nine months later, the first use of that interpretation was used in regards to the YMCA building. By August 14th, 2001 the footprint interpretation came under scrutiny when the Council questioned it. Only for a short period of time did the interpretation hold. Since August 2001 until it was changed, it was in a very open process, and the Council repeatedly stated one of the reasons it was taking so long was because they wanted it done right and done thoroughly. There was never any question that what they were moving toward was a 45,000 gross sq. foot and getting rid of the interpretation.
Councilor Jackson added that the Council did not have the opportunity to make a decision on the YMCA because their application was never appealed and the Planning Commission's decision stood.
Gary Peterson, Attorney/Ken Ogden, Architect/David Wilkerson
Peterson stated that they had submitted additional evidence to the Council, which included a statement from Ken Ogden that certifies that this is a complete application, and there is no issue as mentioned by the opponents. He discussed the issue of reconsideration, and respectfully objected to Paul Nolte's opinion. He asked the Council to consider this from a standpoint of fundamental fairness, and what kind of a precedent the City wants to set. Regardless of how the footprint interpretation got into the OSF findings, the fact of the matter is, it was there. It was the City's interpretation and the City did apply it to the YMCA. Peterson stated he understood it was the Council's prerogative to reinterpret the ordinance, but to do it post-application denies the applicant fundamental due process, adding it was just not the "right thing to do."
Ogden stated the oppositions' testimony appears to be based on the fear that this building will somehow destroy the integrity of the downtown core. The fact is no building will destroy the quality of life in Ashland. Ogden noted it was important to remember that the Planning Staff, Tree Commission, Historic Commission, and Planning Commission had approved this project. At the time it was submitted, this project complied with the intended Big Box Ordinance. It was not until the last minute that they found out that parking was going to be considered as part of the square footage. Ogden explained the different benefits this project would provide to the City and respectfully requested that the Council evaluate this project based on its merit.
Council requested the applicants to discuss Condition 12, and asked if they could speak on the conflict on the calculation of public space.
Wilkerson explained they had calculated the square foot requirement based on the gross total square foot of 81,212 sq.ft. They received an interpretation from Staff that is should be based on the "heated" or "usable area", because the unoccupied spaces do not generate a need for pedestrian space. Since they had already calculated the number and had the space including the interior courtyard, they left it as is. If the Council chooses to remove the interior courtyard, they would still comply with the standard. Wilkerson added that the pedestrian plaza is not 12ft. wide, but rather 28 ft. wide to the wall of the hotel.
It was asked how the project would be affected if they lose the 13,000 sq. ft.
Ogden stated they are not prepared to respond to the economic viability, but the economic impact of just building the parking structure is phenomenal. There will be big construction costs, and in order to offset those costs, square footage for residential will be required.
Public Hearing Closed: 9:25 p.m.
Nolte, responding to Council's question of risk and exposure, stated that the City's responsibility when a land use application is appealed is to prepare the record. Preparation of the record is usually quite simple and usually does not cost more than $200 in terms of staff time and reproduction costs. Should the City decide to participate in the appeal by filing a brief, then there is additional Staff time and expenses. If LUBA reverses or remands the manner back to the City, the prevailing party is someone else and they get their costs (which is usually less than $1000). It is a very high threshold with LUBA before any attorney fees are awarded. Nolte further clarified that it is the same cost whether the courts remand or reverse the interpretation.
Councilor Laws discussed the history of the ordinance, noting his participation over the years as a councilor. He explained that it began when they thought there was going to be a Wal-Mart in Ashland. A committee was appointed to work on the Big Box Ordinance, and the Council approved and adopted a Big Box Ordinance. The Council did not think at that time that this ordinance would be applied to the downtown area. This is why, when the issues regarding the Shakespeare arose, that the Council attempted to find ways to get around the ordinance as best they could, with interpretations that did not completely violate the meaning of the language in the ordinance. The Council then wanted to make clear what was intended for the downtown area and asked Staff to work on an amended ordinance. It became obvious that most people were not happy having large buildings anywhere in Ashland. The Council would have been happy to limit buildings outside the downtown to 45,000 gross sq. ft., but some of them were concerned about this applying to downtown area and wanted that clarified. It was also obvious that the public did not agree, and the Council responded to the public and agreed that the 45,000-sq. ft. should not be the footprint, but the entire building.
Laws stated he was disappointed that the Council was not informed of the Bemis project any sooner than they did, and that this puts the Council in a difficult situation. He believes that the existing law and interpretation were clear and in effect at the time of the Bemis' application. Laws stated "we are a City of law", and "the law is the law until it is changed." Laws believes it is wrong to not follow the rules that we have, and stated if the City is going to be trusted it has to stick to the rules until they are fully changed. Laws claimed the Council knew what the rules were and what they meant, and urged the Council that future trust in the City depends on the Council making decisions based on what existed, and not what we want it to be.
Councilor Hartzell stated there are always loopholes and unclear phrases, and explained that the State recognizes this and allows for the decision making bodies to interpret. Hartzell stated she would feel comfortable using the authority that the State offers to uphold the values of the community.
Councilor Amarotico stated he agreed with Laws. Two wrongs don't make a right, and the Council needs to adhere to the ordinance that was in place at the time.
Councilor Morrison/Jackson m/s to deny application. DISCUSSION:
Councilor Morrison stated he had wrestled with these issues, including the issue of fairness mentioned by the applicant. He questioned where fairness lies and what the greater good is. He felt that interpretation had created cynicism and questioned whether this is a City of rules. He could not allow a misinterpretation, for a misuse of the rules to continue, and give Ashland a building that is totally out of scope with the 45,000 sq. ft. Morrison stated the applicants were aware of the City's plans, and took a calculated risk in applying for this project. He added that it disturbed him that it was the City who started this misunderstanding by interpreting a rule in a way that was a total misuse of the English language.
Mayor DeBoer stated this is about trust of the City, and noted that at the first reading of the new ordinance, this project was legal.
Councilor Jackson stated she generally does not support reversing the decisions of the Commissions. She liked some of the components of this proposed project, but feels it is in the greater good and interest of the community to keep the City moving in the direction it wants to go. She pointed out that she is not often put in the position to decide what is appropriate in terms of mass and scale, but feels this structure is too tall at the First Street and the alley way elevation.
Councilor Amarotico/Hartzell m/s to extend meeting past 10:00 p.m. Voice Vote: All AYES. Motion Passed.
Councilor Hartzell requested that all those who are interested in these matters to continue to be involved, especially at the early stages issues.
Councilor Laws noted that the words, "gross square floor" can be interpreted differently, and their interpretation was not a capricious thing. Noted the fairness to the bill of law.
Councilor Morrison stated the purpose was to restore a degree of faith in government and that he would like to see that we do that and establish that 45,000 is the threshold is where we want to be.
Roll Call Vote: Morrison, Hartzell, Jackson, YES; Laws and Amarotico, NO. Motion Passed 3-2.
Nolte noted this decision needs to be reduced to writing, which will require the Council to meet one more time to review the findings that will be drafted by Staff. This meeting needs to be scheduled prior to the end of the 120 days.
Council will meet on Wednesday, January 28th at 10 a.m. to review the findings.
Meeting was adjourned at 10:10 p.m.
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