Agendas and Minutes

Planning Commission (View All)

Hearings Board

Minutes
Wednesday, November 12, 2003

ASHLAND PLANNING COMMISSION
HEARINGS BOARD
MINUTES
NOVEMBER 12, 2003

CALL TO ORDER
Chair Russ Chapman called the meeting to order at 1:35 p.m..
Commissioners Present: Russ Chapman, Chair
Mike Morris
Dave Dotterrer
(No absent members)
Council Liaison: Alex Amarotico - not present
High School Liaison: None
SOU Liaison: None
Staff: Bill Molnar, Senior Planner
Mark Knox, Associate Planner
Brandon Goldman, Assistant Planner
Sue Yates, Executive Secretary

APPROVAL OF MINUTES AND FINDINGS
Dotterrer moved and Morris seconded the approval of the minutes of the October 14, 2003 Hearings Board.
Dotterrer moved and Morris seconded the approval of the findings for PA2003-110, 230 and 232 Van Ness Avenue (Eggling).

TYPE I PLANNING ACTIONS

PLANNING ACTION 2003-137
REQUEST FOR SITE REVIEW FOR A NINE-UNIT EXPANSION OF THE EXISTING WINGSPREAD MOBILE HOME PARK LOCATED AT 321 CLAY STREET. ALSO REQUEST FOR TREE REMOVAL PERMIT.
APPLICANT: WINGSPREAD LLC

This action was approved.

PLANNING ACTION 2003-138
REQUEST FOR SITE REVIEW AND CONDITIONAL USE PERMIT TO CONSTRUCT AN ACCESSORY RESIDENTIAL UNIT, APPROXIMATELY 499 SQUARE FEET, ON THE SECOND FLOOR ABOVE A NEW TWO-CAR GARAGE FOR THE PROPERTY LOCATED AT 556 FORDYCE STREET.
APPLICANT: KURTZ-WALSH PROPERTY, LLC

This action was approved.

PLANNING ACTION 2003-139
REQUEST FOR SITE REVIEW FOR THE CONSTRUCTION OF AN APPROXIMATELY 4,410 SQUARE FOOT, TWO-STORY OFFICE BUILDING AT 518 WASHINGTON STREET (LOT 3), OF THE WASHINGTON PROFESSIONAL PLAZA.
APPLICANT: GENESIS BUSINESS ENTERPRISES, LLC

This action was approved.

PLANNING ACTION 2003-141
REQUEST FOR SITE REVIEW FOR THE CONSTRUCTION OF A 3,250 SQUARE FOOT METAL BUILDING ADDITION TO THE EXISTING WAREHOUSE FACILITY LOCATED AT 684 TOLMAN CREEK ROAD.
APPLICANT: BATZER, INC.

This action was approved.

PLANNING ACTION 2003-142
REQUEST FOR A THREE PARCEL LAND PARTITION AND PHYSICAL CONSTRAINTS REVIEW PERMIT FOR THE DEVELOPMENT (I.E. DRIVEWAY CONSTRUCTION) ON HILLSIDE LANDS FOR THE PROPERTY LOCATED AT 735 PRIM STREET.
APPLICANT: VAL DUTSON

This action was approved.

PLANNING ACTION 2003-143
REQUEST FOR SITE REVIEW AND CONDITIONAL USE PERMIT TO CONVERT THE EXISTING 672 SQUARE FOOT RESIDENCE INTO AN ACCESSORY RESIDENTIAL UNIT AND A PHYSICAL CONSTRAINTS REVIEW PERMIT TO CONSTRUCT A NEW RESIDENCE UPON AREAS IDENTIFIED AS HILLSIDE LANDS FOR THE PROPERTY AT 714 PALMER ROAD.
APPLICANT: FRED GANT AND JEANNE LEGRAND

This action was approved.

TYPE II PUBLIC HEARINGS

PLANNING ACTION 2002-129
REQUEST FOR A CONDITIONAL USE PERMIT AND SITE REVIEW TO CONVERT AND EXPAND AN EXISTING NON-CONFORMING STRUCTURE INTO AN APPROXIMATELY 622 SQUARE FOOT ACCESSORY RESIDENTIAL UNIT.
900 GLENDALE STREET
APPLICANT: SCOTT ALLISON

Site Visits and Ex Parte Contacts - Site Visits were made by all.

STAFF REPORT
Goldman reported that Staff believes this proposal meets the requirements for an accessory residential unit. The proposed accessory unit involves the conversion of an existing building at the northeast rear corner of the property. Staff has no evidence that this structure has ever been used or approved as a secondary residence. It is non-conforming. The structure is set back 4.5 and 4.7feet, respectively to the side and rear yards. The structure is within the required setbacks, but no closer than three feet from the side or rear property lines.

Four parking spaces are required, two for the primary residence and two for the accessory residential unit. The applicant proposed to utilize the existing tandem parking - one space in the carport, one space behind the carport space. The tandem parking has existed since 1958. Staff is agreeable to this arrangement because a carport is rarely used for storage, leaving both areas open for parking.

The Fire Department has required the installation of an interior sprinkler system.

When the accessory building was built in 1958 there were no zoning requirements regarding setbacks. It became non-conforming in 1967 when the zoning ordinances were put in place.

Staff recommends approval with the attached nine conditions.

Chapman asked why a variance was not requested in this instance. Goldman said if a new structure is built that does not comply with setbacks, then a variance would apply.

Chapman wondered how far we want to go with stacked parking. Goldman said the parking configuration existed before the off-street parking ordinance was in place, therefore, it is "grandfathered" in. Molnar said there is discretion afforded to the Commission on this issue. The definition of a parking stall says if you have to move one car to get to another, it only counts as one space. Obviously, throughout town, there are similar situations. Staff has recognized existing stacked situations.

Chapman said if this was previously a storage shed and the neighbor said the structure is non-conforming and he doesn't want it there, Chapman wants to defend the ordinance.

Goldman said under today's ordinance, an accessory structure can be built within three feet of the side and rear property lines and is considered a residential use - guest house, storage, garage, etc. In evaluating the Conditional Use Permit, does the Commission find this is an intensification of use beyond what would be permitted in the zone with the current setbacks? Molnar added that the question is: Does the side and rear yard (in relationship to the property line with a full-time residential use) create such a negative imposition in the neighborhood that it would fail to meet the conditional use? Chapman said there is a neighbor that feels the residential structure would crowd him.

PUBLIC HEARING
SCOTT ALLISON, 900 Glendale, said the unit has had electrical and plumbing. At some point, it was set up for a living situation. It was more than a storage unit. Allison will be upgrading the landscaping, painting the house, adding the parking. It is small and he sees the impact as very minimal. He has offered to do things to mitigate any impact on the neighbors such a installing dense hedging or fencing. He is willing to do what he can to make the situation favorable to everyone.

Dotterrer asked if there is a fence. Allison affirmed. He said the neighbor would like a block wall. He is willing to extend the chain link fence.

Goldman asked Allison if he plans to remove the two north windows shown in the plans. Allison said the drawing is incorrect. There are two windows on the east side and no windows on the north side.

RICH VANDERWYST, 888 Glendale, had written testimony that he submitted for the record. He asked for denial of the application based on the five items in his submittal. The five points are: (1) The action is not in conformance with the 18.20.010, (2) The structure's design is not consistent with the houses in the neighborhood, (3) Inaccuracies in the Findings of Fact, (4) Fire danger due to close proximity of the structure, and (5) Parking configuration will cause congestion on Glendale. Vanderwyst said there is nothing in the ordinance that states only new construction requires a variance. He believes this application should be considered a variance.

Chapman said that under the ordinances this may not represent an upgrade, however, there is a difference between a residence and a storage shed. To him, the issue is one of non-conforming setbacks with a more intensive use and the affect that is going to have on Vanderwyst. He asked Vanderwyst what the impacts will be for him. Vanderwyst restated the items from his submittal - potential noise, design, elevation, fire safety, and traffic along his fenceline. He would like a soundproof barrier along the porch area. The front area is of the most concern to him. They already have a fence, so he would like something more.

Morris noted that if the structure complied with the setbacks, it would move the structure closer to Vanderwyst's home.

Rebuttal
Allison believes there is ample parking on the street. The street is wide and there is usually parking available on the street. He is willing to extend the length and height of the fence with perhaps a dense hedge.

COMMISSIONERS' DISCUSSION AND MOTION
Goldman responded to the items in Vanderwyst's submittal. He said accessory residential units are conditional uses and are in conformance with the zoning codes. There will be a large usable side yard area available and it seems compatible with other accessory structures in R-1-5 zones. Accurate measurements should be taken by the applicant, but in any case the 622 square foot accessory unit is still less than 50 percent of the main structure. The on-street parking credit is allowed.

Goldman suggested a condition that no windows shall be located on the north wall.

Dotterrer requested a condition be placed extending a six foot fence to at least the northwest corner of the existing northwest corner of the existing structure. Try to get it at least the edge of the porch.

Dotterrer moved to approve PA2003-129 with the nine attached conditions and two additional conditions - no windows on the north wall and extension of the fence. Morris seconded the motion and it carried unanimously.

PLANNING ACTION 2003-118
REQUEST FOR A PHYSICAL AND ENVIRONMENTAL CONSTRAINTS PERMIT TO CONSTRUCT A SINGLE FAMILY RESIDENTIAL HOME ON HILLSIDE LANDS WITHIN A HISTORIC DISTRICT.
265 GLENVIEW DRIVE
APPLICANT: SIDNEY AND KAREN DEBOER

Site Visits and Ex Parte Contacts - Site visits were made by all.

STAFF REPORT
Knox reported this application is to construct a new home. Development on property of 25 percent or more on designated hillside lands is subject to a Physical and Environmental Constraints Permit (P&E). The review looks at mass and scale, erosion control, retaining walls, cut and fill, etc. to make sure there are stable conditions once the construction is complete.

This application has been in process for more than two years. Knox has been involved with the applicants and the Historic Commission trying to work out square footage or design issues. The applicants also own 234 Vista Street and it is on the National Register of Historic Places. Two years ago, they applied to add approximately 4,000 square feet to the house (234 Vista). It could not be done without affecting the house's historic integrity. The applicant agreed it was not appropriate. At that point, they chose the Glenview site.

Today, because the request is to build on a 25 percent slope, it is subject to the P&E permit. This was approved last month as a Staff Permit approval. Hillside developments are subject to staff review and approval. Notices are sent out to property owners within 100 feet of the property. The decision was appealed by neighbors. A Staff Permit can be called up for a public hearing. The Procedures Chapter states if a Staff Permit is called up it is processed as a Type II public hearing. The Historic Commission and Tree Commission reviewed the application. The Historic Commission really has no review of single family house designs in the Historic District. The Hillside Ordinance precludes any notion of any type of design restrictions in the Historic District. There are really no criteria on which the Historic Commission could base a decision. They made a motion recommending opposition to the application, based on opinion, not criteria (Historic Commission Minutes dated November 5, 2003). The Tree Commission recommended approval of the application with conditions that mitigation be done for replacement trees, etc.

Knox said the applicants are proposing to demolish the existing three and one-half story house on the site. The height of the proposed home is equal to or a little less than the existing garage. The proposal is construct an approximately 11,000 square foot house. This application was probably the impetus for the maximum house size ordinance. The application was submitted before October 16, 2003, the date the maximum house size ordinance went into effect. All decisions regarding this application are based on the regulations in place at the time of submittal.

The house consists of a basement, first story, second story, and a half story. The maximum building height in any district is 35 feet or two and one-half stories. The basement is not considered a story. The half story is a building code definition. That is, it can be no greater than 40 percent of the floor below it. The house is 110 feet wide, little to slightly less than 35 feet in height. There are multiple rooflines and breaks. The inspiration was the Green and Green Craftsman style homes seen in southern California.

Knox showed the list of criteria for hillside development on the overhead. There are eight attached conditions in the Staff Report. He would like to add the Tree Commission's recommendations that are listed on the Ashland Street Tree Commission Site Review dated November 6, 2003. He would also like to add a Condition 10 that prior to removal of the trees above the pool area that a separate P&E permit be obtained.

Knox reminded the Commissioners that the P&E ordinance does not give us any leeway to discuss house size. It is Staff's opinion that the question is how the site is treated once it is disturbed. How do you leave it so it does not collapse on the adjacent neighbor or on itself?

PUBLIC HEARING
SID DEBOER
, 234 Vista, stated he is the applicant and will be represented by Craig Stone.

CRAIG STONE, 708 Cardley Avenue, Medford, OR 97504, emphasized that this application was not made to beat the maximum house size ordinance recently adopted by the City Council. This design process simply concluded about the same time. He reminded the Commission that the applicant is entitled to a decision under the regulations in effect at the time the application is filed. This application does not include anything about neighborhood impacts other than those of an environmental or physical nature. It does not involve the architecture or size of the dwelling, its appearance, views or historic consideration.

Stone said the Planning Department has taken responsibility for a mistake that was made to remove some trees on the site. The Tree Commission took that into consideration and made two recommendations. The applicants believe it is an appropriate way to rectify the error and they do not object.

There is a pending lot line adjustment. Stone asked that the drawings from the landscape architect are made part of the record showing the resulting developed lot would comply with lot coverage standards.

Stone asked the Commissioners to take the Historic Commission's recommendation in the proper context. It is without benefit of any measurable standards. They have simply issued an opinion. It should be given little or no weight.

The application made reference to a Gantt chart that had been missing. It makes reference to the length of time it will take to construct the house. It is estimated it will take about one year, following all City's considerations such as planning and building approval permits.

Twenty-eight percent slope is the average slope of the home site.

Stone discussed the criteria.

1. Potential impacts considered and adverse impacts minimized. They hired Mark Amrhein, a geotechnical engineer to do a study. He evaluated the various physical features of the site. He pointed out areas of some concern and recommended certain mitigation measures. Based on his report, the architect, the structural engineer, and the civil engineer did their work and incorporated all of Amrhein's recommendations. If this is approved, all of the recommendations of Amrhein and his geotechnical investigation would be incorporated as conditions to the approval. He entered, along with Amrhein's recommendations, Amrhein's professional qualifications.

2. Evaluate and consider potential hazards and implement mitigation measures. The hazards were included in Amrhein's report. If the recommendations are carried out, there are no physical or environmental impacts produced neither outside the property nor within it, after the stabilization measures have been employed.

3. Examine existing development in the surrounding area and the maximum that might be permitted under the ordinance. There is a photo exhibit that depicts buildings and other improvements in the surrounding area along with a description. This is an urban setting. There are not vacant parcels in the area. The subject property is not a vacant property. There are no natural areas on it. It has been fully developed with an existing dwelling that is proposed to be demolished. The landscaping is ornamental. Directly across the street are a couple of attached housing projects.

The P&E ordinance discusses preservation of things that are part of the natural environment. The natural environment was altered when the dwelling on the property was built and when the landscaping was installed. All the things that will occur as a result of constructing a dwelling on this property will be mitigated before there is a certificate of occupancy issued.

Stone said one might argue the criterion that the applicant has taken all reasonable steps to reduce adverse impacts on the environment, to mean that you have to reduce the size of the dwelling in order to reduce the magnitude of the impacts. He does not believe that is a fair reading of the ordinance, and in fact, the reading of the ordinance that way is flawed. If there is an ambiguity in the ordinance, first look at the text. The text in the Land Use Ordinance contains objective standards. You have to take what is proposed and apply the ordinance to it. This proposal meets all of the objective standards.

Stone said his client is prepared to stipulate to any reasonable form of mitigation. They are not willing to reduce the size of the dwelling.

Chapman referred to page 13 of Stone's findings. It states that 55 percent of the reconfigured property is in a natural state. Stone said the natural state refers to the undisturbed natural area. Chapman said on page 15 it states under Conclusions of Law there are no existing natural areas to be preserved. He said natural area is an area that exists as a natural of stand of trees, undisturbed terrain.

JEANNIE TAYLOR, 374 Alnutt, read a letter in support of the proposal from CLAUDIA EVERETT, 140 South Pioneer Street.

NOLA O'HARA, 232 Vista Street, said she lives next door to the DeBoers. She submitted photos of structures in the area that are not historic. She had a photo showing the existing home and how after it is demolished, the new home will be a good addition.

ANDREA FRYE, 480 Herbert Street, said she is enthusiastically waiting the construction of the DeBoer's house. She would like to see more diversity in Ashland with large and small homes.

CHRIS ADDERSON, 300 Vista, supports the construction of this home.

JON HARBAUGH, 190 Windemar Place, said they own 212 Vista. Based on what they have seen, they approve of the bulk and scale of the new house.

DON MACKEN, 610 Elkader Street, believes the project, as proposed, is the highest and best use of the property.

SAM DAVIS, 900 Cypress Pont Loop, wants the DeBoer's to have fairness and justice with this project. If we disregard the City's ordinances and let opinions and emotions guide decisions, the City will be subject to limitless litigation and chaos. He believes the house conforms to the ordinances and should be approved.

JERRY TAYLOR, 375 Alnutt Street, believes because the DeBoer's have had to go through many hoops puts Ashland in a very poor light. He asked the Commissioners to look at the criteria.

ROBERT DAVIS, 190 Oak Street, said he is the DeBoer's builder. The DeBoer's have always taken great care of the trees, landscaping and environmental impacts on their property.

TOM BECKER, 2305 Ashland Street, said the proposed home will be an asset to the community. Craig Stone did an excellent job of speaking to the criteria and he believes the application should be approved.

ROBERT BESTOR, 288 Ridge Road, said that in 100 years, we will have a great historic home.

COLIN SWALES, 461 Allison Street, noted that he is speaking as a citizen and neighbor to the project. He is recusing himself from the Planning Commission should this project go any further. He has been involved in the project since the original demolition permit.

This is the first time in Swales' dealings with the Planning Department, he was denied copies of the planning application. According to Oregon land use law and printed on the top of the notice mailed to neighbors, copies will be made available at a reasonable cost. He requested copies in the middle of October. The copies were denied. Staff was willing to make the copies available, but the architect for the project said they were copyrighted and would not be made available. He requested this application be withdrawn and resubmitted at a later date with plans that are available for copying under Oregon land use law.

He distributed copies to the Commissioners. He said page 1 was prepared based on the current GIS survey of the property. Everything above Hargadine is on the City's hillside land constraints map. The subject property is two blocks above the limit. Anything on the map is pink, dark red or gray. The gray area is considered unbuildable. Referring to page 2 is the red outline of the home site, sitting on land that is colored gray. Also on that map is the extent of the trees. The larger group has been removed. The smaller group of trees is proposed to be removed where the pool house is going to be located. The trees along Glenview are in the City's right-of-way. This seems like a land grab where someone would be allowed to develop and remove trees on hillside land on City right-of-way. Swales said there is a photograph of the lot from 1910 showing about 53 percent slope. He said Stone is saying the original average slope of the site is 28 percent. There is no mention in the ordinance of original average slope. All it discusses is slope. The next page (blue and black lines) he has shown sections of grade - 52%, 46%, and 46%. The existing building footprint is on a slope of 45 percent. The reconfigured lot has a buildable area on it. The buildable area is on Vista Street.

Swales said if the Commissioners decide to move this to the full Commission or take action other than to deny the application, he would request the public record remain open for at least seven days so he can provide further testimony in the record.

BRYAN HOLLEY, 324 Liberty Street, said he would recommend denial of the application and continue it to the full Commission. Stone said the Commissioners were asked to give the Historic Commission's decision no weight. The Historic Commission did not like this application. They felt hand-tied. The maximum house size took two years to approve. He would ask they give the Historic Commission's decision a lot of weight. The Tree Commission never recommends approval or denial. (Holley is a Tree Commissioner.) Their purview is to review the landscape plans. Since some of the important trees that might have stopped the project in its tracks were illegally removed, the situation is a Catch 22. Sometimes they are asked to stick to the criteria, other times they are not.

Regarding natural stands of trees, it is very challenging to plant madrone trees. Madrones don't do well. The madrone grove has been removed. What does it take to call that madrone grove "natural" when we know from landscaper's recommendations that they can't be planted as landscaping? Those trees were there prior to any home built on that site.

BILL STREET, 180 Meade Street, read a letter from CHARLES AND MARGARET HOWE, 106 Fork Street, objecting to the application due to their concerns about erosion and water run-off that might come from the subject property. Their letter will be included in the record.

Street referred to the comments by employees of the applicant. Kerry KenCairn, landscape architect was asked by Street that if the trees on the hillside slope were still there, would it be possible to approve this application? KenCairn responded, "No, the hillside ordinance would not allow this house on this slope if those trees were still there."

Street noted Ogden's testimony at the Historic Commission meeting. Ogden said if the house was built on the level where the historic pattern of houses is located, there would not be an issue. Street wondered if there is any way to encourage and require the DeBoer's to resubmit their application to build on a level part of the property? He noted the hillside ordinance and all the meetings and discussions that took place in 1997. There was every attempt to inform the citizens of Ashland about the hillside ordinance. Craig Stone and Knox have stressed repeatedly that they have spent a number of years working on this application. There have been lots of meetings with the Planning Department. They were encouraged to consider another site. The DeBoer's have hired an extensive team of professional counsel. This counsel failed to advise the DeBoer's that the hillside ordinance applied to their property. Karen DeBoer called the Planning Department and was given permission to cut down the trees that were on the hillside. The trees were significant. He is asking the Commissioners to deny the application and advise the City of Ashland to take responsibility for its mistake and to restore the hillside back to the original canopy and the original ground control erosion natural settlement of land. And further, to advise the DeBoer's to resubmit their application on the level ground where it would be more appropriate and less dangerous to neighbors below the DeBoer complex.

Rebuttal
Stone said when they found the copyright was placed on the architectural drawings, they took immediate steps to have it removed. It was removed and the maps and plans were made available to Swales within about a day after they were requested. Stone does not believe it has diminished Swales' right to review the plans and present adequate testimony and evidence.

Stone noted Swales' map showing the property in 35 percent slopes. Stone referred to criterion 4 (as Stone numbered). He asked Darrell Huck to testify.

Stone said with regard to the trees, a mistake was made. His clients were not certain the property even fell under the P&E ordinance. Staff wasn't certain when they gave permission to remove trees. It doesn't prevent this project. Page 25, Criterion 22 (5a) of Stone's findings says that trees can be removed when they are within a building envelope.

Stone referred to the letter from the Howe's and the erosion of Vista. He does not know anything about how the roadbed was put together. This property has been evaluated by a geotechnical engineer and his team. They have taken that information into account to stabilize the slopes either with the dwelling and its foundation or with retaining walls so there is no place for any earth to move off this site. Any part of the disturbed site will be vegetated sufficiently to stabilize any disturbed slopes.

DARRELL HUCK, Hoffbuhr and Associates, said he is a licensed surveyor. He said he has tried to identify the natural slope of the land prior to any disturbance. Historically, that neighborhood had been disturbed many years ago. Using the data available, they came up with a slope varying from 34 to 24 percent. There has been a lot of disturbance in that area. He hasn't had a chance to evaluate Swales' testimony.

Morris asked if the procedure he used is standard. Huck said it was. He said he first surveyed the site in the early 1990's.

Dotterrer asked Knox if the tree removal mattered. Knox said it is difficult to say because the trees are gone. It doesn't mean you can't propose to remove trees. With regard to KenCairn's comments, he believes it would be difficult to remove those trees. The trees that are there are of similar size as those that have been removed. Knox said h made the error. The request came in during the time the tree ordinance had just gone into effect. Removal of trees on a single family lot are exempt and he didn't think about the lot requiring a hillside permit.

Knox said it was noted on the plans that the plans were copyrighted. By the time they were released by the architect, it was Monday, November 3rd. He is aware that two persons who spoke today prior to November 3rd reviewed the file in the office.

Knox said Staff based their decision regarding slope on Huck's (a licensed surveyor) information.

COMMISSIONERS' DECISION AND MOTION
Chapman said no decision will be made as it was requested the public record remain open. The Commission will convene on December 9, 2003 and review any new information that has been submitted and make a decision.

Stone asked if at the end of the seven day period that the applicant can have a seven day period in which to review the materials and issue a final rebuttal on the additional testimony.

Molnar said the public hearing does not have to be re-opened at the December 9th meeting.

ADJOURNMENT - The meeting was adjourned at 4:20 p.m.

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