ASHLAND PLANNING COMMISSION

REGULAR MEETING

MINUTES

APRIL 10, 2007

I.             CALL TO ORDER

Fields called the meeting to order at 7:05 p.m. at the Ashland Civic Center, 1175 E. Main Street, Ashland, OR.

            ANNOUNCEMENTS

Dotterrer reported that he is attending the ODOT Exit 14 meetings not as an official representative of the Planning Commission, but rather a private citizen.  The process will take a couple of years.

III.          APPROVAL OF MINUTES

Morris/Marsh m/s to approve the minutes of the March 13, 2007 meeting.  Voice Vote:  The minutes were approved.

IV.           PUBLIC FORUM

COLIN SWALES, 461 Allison Street, spoke to the rule changes.  He believes any substantives changes to the rules should go through Council approval.  He’d like to see an annual report to the Council of planning business conducted in the past year, including attendance at the meetings as outlined in AMC 2.12.

V.            TYPE II PLANNING ACTION

PLANNING ACTION:  2006-01787   (Continued from March 13, 2007)

SUBJECT PROPERTY: 479 Russell Street

OWNER/APPLICANT:  Russ Dale & Darren LeComte

DESCRIPTION:  Request for Site Review approval for a two-story, mixed use building located at 479 Russell St., comprised of retail and office space on the ground floor and five residential units on the second floor.  The proposed building is approximately 7,762 square feet in size.  The property is located in the Detail Site Review Zone, and is also subject to the Large Scale Development Standards.  COMPREHENSIVE PLAN DESIGNATION:  Employment; ZONING: E-1; ASSESSOR’S MAP #: 39 1E 09 AA; TAX LOT: 2803

Site Visits and Ex Parte Contacts

Stromberg had a site visit and saw some big painted 4x4’s, some possible survey work that has been done, and plants with various colored markings on them.  He looked at the property from the point of view of the downslope neighbors.

Dotterrer missed last month’s meeting but watched the video and had another site visit and will be participating tonight.

Fields had another site visit today and noted the creek and riparian area. 

Dimitre had another site visit and looked at Lot 5 across the creek.

Mindlin had a site visit and looked at the riparian area.

Dawkins runs through the area frequently.

Marsh and Morris had nothing to report.

STAFF REPORT

Severson presented revised Findings for the Commissioners.  The revisions start on Page 5 of the Staff Report.  They are items he touched on in his Staff Report last month.  He re-worded Conditions 12, 19, 22, 23, 24 and added a new Condition 29 to allow for the agreements that have been made between the neighbors and the applicant.  All the changes are highlighted and bolded.  With regard to the riparian corridor, a lot of the materials installed on Lot 5 will be removed, replaced and/or relocated along the corridor or replaced off Lot 5. 

Severson felt that Gregorio’s concerns have been addressed but there are still unresolved issues with the Tunebergs.  Stromberg believes it is important to get a realistic cost estimate for bonding.  Staff said they’d get an estimate from a licensed landscape contractor, obtain an independent review and add a cushion for administrative fees.

7:17 p.m.  COMMISSIONERS’ DISCUSSION AND MOTION

Fields asked for clarification of the landscape plan.  Severson said there is landscaping around the parking spaces.  It appears a landscape plan that had been submitted by the applicant was not copied for the packet but is part of the record.  There is one tree per seven spaces.  Two maples are shown on the northeast corner of the building. 

Fields thought the riparian area is lacking trees and shade.  There doesn’t seem to be any planting on the other side from Lot 5 in the riparian area.  There should be a tree canopy that will create shade for keeping the water temperature cool.  Severson said there appear to be trees shown on the original landscape plan that have not been installed as well as some of the landscaping that has been put on Lot 5.  There are a number of larger stature trees shown.

Fields’ other areas of concern involve:  Screening the parking lot, planting trees to soften the building, landscaping to cool the parking lot, and finding out what trees are being replaced.

Mindlin wondered why the riparian area is not being considered.  Severson said they are trying to address Lot 5 as it develops rather than trying to install something now before it is built.  Stalheim said a Finding could be added that recognizes the original subdivision approval and the landscaping for the riparian corridor and insures its enforcement. 

Severson said that even though there is not a final landscaping plan, there are changes in the narrative reflecting the agreements that have been made with the neighbors.  The Conditions have proposed an accelerated landscape coverage plan and the applicants are proposing a lot more fencing and that landscape coverage is met at the time of installation.

Severson said the applicant has added more emphasis, interest and variety to the sense of entry and has gone beyond the standard, thus satisfying Staff’s concerns.  There will be a bay of landscaping on the southeast corner in front of the windows and near the entrance on the left side.  There is landscaping on the parking lot in the rear as well.  The landscaping will meet the standard.  There is an added Condition asking for a final revised landscape plan, incorporating all additions and changes. 

Staff has tried to address the Tuneberg’s concerns through revised Conditions. 

7:47 p.m.  Severson said with regard to the 120-day rule, with the extension already filed by the applicant, the next deadline is June 29, 2007. 

Fields asked if this is approved, when will Staff see the revised landscape plan.  Severson said it can be part of the permit process or beforehand. 

Dotterrer/Stromberg m/s to approve PA2006-01787 as presented tonight. 

Severson said the applicants have provided 19 percent landscape coverage for the whole site (Lot 4).  The Commissioners hesitated to approve the action without having a complete landscape plan and addressing the riparian area.  To re-state, the Commissioners have not seen a landscape plan for the front of the building, around the parking and narrative changes incorporated into an overall plan. 

8:05 p.m.  Stalheim stated the issues have been narrowed down to:

1)   Issues of enforcement of existing Conditions along the riparian corridor that Staff can deal with, and 2)  how much do the Commissioners want to state in their Conditions what their policy intent is for a revised landscape plan.  The details of the landscape plan do not have to be hammered out at the Planning Commission meeting. 

He continued with the following amended Conditions:

1.       That the revised landscape, irrigation and screening plan shall include assurance that the original landscape plan along the riparian corridor be implemented prior to the building permit application to insure that water quality along the corridor is protected. 

2.       That the revised landscape plan shall include revisions to the Russell Street entry to provide reduction in hardscape and an increase in the amount of landscaping in front of the building.

He reiterated that the application meets the standards of the ordinance.  Upon final review, Staff will make sure the application meets the standards of the ordinance.

8:10 p.m. Dotterrer withdrew his motion. 

Dotterrer/Dimitre m/s to continue, opening the public hearing so they can get a full landscape plan and see exactly what the new plan should be. 

Stalheim asked if the Commission wants this to come back, what do they want to see? 

Marsh spoke for several of the Commissioners when she said they are missing the landscaping as part of the comprehensive whole.  

Mindlin added her concerns about trapping the riparian area in a row of trees on each side to satisfy a particular neighbor.  In addition, she would like to see more landscaping in the 70 feet of hardscape along the front of the building to help soften the mass and scale.

Morris believes the wording of the motion could be handled through Conditions.  We need to ask the applicant to break up the façade and go forward.  In addition, Morris believes Lot 5 is going to be an issue over which we have no control.  The Tuneberg’s property is the biggest hurdle because it can’t be buffered with this application.  Thirdly, he would rather not choose the landscape detailing of the building entry because they’ve met the percentage of landscaping. 

Stromberg amended the motion to request the applicant provide a complete landscape plan, adding landscaping to the front of the building to soften the mass and scale and break up the hardscape.  Pay attention to the riparian area to restore to the original planting plan and provide adequate canopy over the riparian if in fact the original plan did not show that.  Dawkins seconded

(Note:  By the motion, the record will be left open to allow new testimony for a new landscape plan.)

Voice Vote:  The amendment carried with Morris casting the dissenting vote. 

Dimitre called for the question regarding the motion on the table.  Roll Call:  The motion carried with Morris voting “no.”

Fields changed the order of the agenda.

VI.           UNFINISHED BUSINESS

               A.            Adoption of Findings, Orders & Conclusions - PA 2006-01787 – 479 Russell Street – Russ Dale & Darren LeComte – This action was continued until next month, therefore, no findings are ready for adoption at this meeting.

8:30 p.m.

VII.         A.              Condo Conversion Review

Stalheim explained this is just a review of the ordinances before it goes to the Council on Tuesday.  Staff only received the final ordinance revisions last Thursday. Originally, there was one ordinance and now there are three:  1) tenant rights, 2) amendments to the building code, and 3) land use amendment.  Staff is comfortable with 1 and 2, but the land use ordinance is difficult to read and they will be working on an easier read.

Goldman said both the Planning Commission and the Housing Commission voted on the draft before it went to the Legal Department.  He reviewed the changes with the Commission. 

Marsh asked who had come up with the newer concepts.  Goldman said Legal was looking at the ordinance to see if it met all the State requirements, specifically the question about inclusionary zoning.  In doing so, it appears they made an effort to craft an ordinance that would resolve their concerns about mandating any affordability by creating a three-tier system (see handout titled “Conversion of Multi-Family Rentals into For-Purchase Housing”).  The creation of the permitted use process with a negotiated development agreement and the concept of an allocation of the density bonus are the new pieces.  

Mindlin wondered if an applicant took the Permitted Use option and did 50 percent for-purchase and 50 percent market rental, could they come back and do it again.  Goldman said they could not come back.  They would have to come back and apply for a CUP or a permitted use with a development agreement and they would be obligated to provide 25 percent of the total units as affordable.  Stalheim said the CUP ties back to the new section 18.24.040.M that talks about development agreements, allowing options to be chosen other than what is in the existing standards.   

Goldman explained another new section pertains to transfer of development rights.  There can be a free-floating density bonus that can be used elsewhere.  It’s an incentive-based concept.  Stalheim said we can’t just grant a right to transfer property without notifying property owners and neighbors.  It can’t be implemented without receptor zones. 

8:54 p.m.  Stalheim said Staff is trying to formulate their recommendation to the Council.  It is scheduled to be heard before the Council on April 17^th, but it might have to be continued to another meeting depending on the number of changes that are made.

Goldman and Stalheim believe they can convey the Planning Commission’s concerns to the Council.  The substance of the new ordinance is very much the same, but it is difficult to read.  Stalheim wants a simpler, cleaner ordinance.

Fields wondered if there is a definition in our Land Use Ordinance for a multi-family rental dwelling unit.  The key to this ordinance is about regulating use.  Condominiums are about ownership and this ordinance is about use.  We are losing affordable units because ownership housing is so valuable.  We are guaranteeing that no one will dare build another apartment because a builder would give up 25 percent of everything one would build.  He’s concerned that at the end of this, what we get are no new apartments being built. 

Stromberg said he believes the problem goes back to two fundamental issues:  1) we don’t make rental housing an actual use in or our ordinance  or the Comprehensive Plan, and 2) in the Comprehensive Plan we have this grand statement about providing housing for the different segments of the community, but then we say that the only way we are going to do it is through market forces.  If market forces fail to provide housing for a particular complement of the community, then we need to consider creating a new Comp Plan policy that says we can use something besides market forces if the market forces are not being successful in providing, in this case, rental housing at a certain rate.  But, we are trying to fix it with an ordinance and treating the symptoms.  It creates all kinds of unintended complexities.

Dawkins has been a renter of condominiums.  A condominium is a piece of property the owner can sell or not and it leaves a renter in a position of being quickly displaced.  An apartment is a rental.  The renter has an agreement with a landlord and as long as the renter meets the agreement, then he/she can stay.  Can you force the building of apartments? 

9:12 p.m.  Marsh noted this ordinance has come a long way from where it started and she applauded the Assistant City Attorney, Richard Appicello’s creativity with this ordinance.  She favors the use of incentives through development agreements and believes they could be applied in lots of different ways in the community.  It means decisions can be negotiated with interesting, creative and useful benefits.  She is also open to transfer of density bonuses.

Marsh asked if our current or proposed ordinance exempts less than three units.  She is concerned if we get down to one or two units, it could set up barriers for individual homeowners who would like to do simple lot development. 

With regard to the in-lieu payment (18.24.040.M.2), Dawkins said we’d be looking at a loss of apartments.  The City of Aspen had a lot of money but no place to put it.

Stalheim said part of the struggle with writing this ordinance is keeping it within Oregon State law.  There are groups that are currently working on issues at the State level. 

The Commissioners generally agreed with the tenant rights ordinance and building code ordinance amendments.  The Commissioners expressed concern that they had not had time to review the ordinances and they would like to have the opportunity to review any changes of the land use ordinance that has not come before them previously.  There has been a lack of analysis of the outcomes this will have and will it achieve what was intended.

B.            Adoption of Planning Commission Rules    

Stalheim said he received written comments from Art Bullock and provided a written response that was handed out to the Commissioners.  He incorporated Bullock’s idea of how to amend the rules.

Public Comment

COLIN SWALES, 461Allison Street, said the rules shouldn’t be too easy to change, particularly “reconsideration.”   We have a very circumscribed, quasi judicial process under the Ashland Municipal Code and that to introduce too easily any method of changing or reversing a Planning Commission decision by way of reconsideration, should be taken very seriously.  He does not believe the Community Development Director should be the gatekeeper.   The Council should make that determination.  

ART BULLOCK, 791 Glendower, said he agrees with Swales on reconsideration.   He would support leaving the decision to the Chair of the Planning Commission.  A reconsideration needs to be limited to new information.  He would disagree with the requirement that it has to be “new facts” because the record would have to be closed.

Bullock reviewed conflict of interest, bias, ex  parte contacts as outlined in his e-mail to the Planning Commission dated April 9, 2007.  He recommended a new paragraph 10 “Conflict of Interest” in the Planning Commission Rules.

Stalheim said the Planning Commission will be receiving training from an attorney at a May study session.

Commissioners’ Discussion and Motion

7.  Procedure.  Stromberg said the Planning Commission should not be willing to turn over their decision-making to the City Attorney (“…as advised by the Ashland City Attorney.”).  Morris and Marsh believe the City Attorney is our source for legal information.   Stalheim explained that the Public Hearing Format for Land Use Hearings is on the City’s website and outlines the hearings procedure.  Dotterrer agreed with Stromberg that the wording should be struck because what dictates our hearings are the Ashland Municipal Code and Oregon law.  We always ask for legal interpretations from the City Attorney. 

Fields suggested omitting in 7. “...as advised by the Ashland City Attorney” and inserting “hearing procedures as adopted by the Planning Commission.”  Stalheim said he could bring the Public Hearing Format for Land Use Hearings to the Commission for adoption. 

Re-title 10. to read “Public Disclosure.”   Then add conflict of interest and bias wording.  Stalheim will re-work the paragraph, including all the items Bullock mentioned.

Dimitre believes the important point is that the procedures should be made clearly available to the public. 

Dotterrer/Dimitre m/s to continue the meeting to 10:00 p.m.  Voice Vote:  Approved.

6.3 Reconsideration.  The current procedure creates an ex parte contact.  It forces the reconsideration decision to the Chair who is a voting member of the Commission, thus creating an ex parte contact in which he’s received new information from Staff.  As a result of the contact, the record has to be opened up.  Sometimes there are valid reasons to have a reconsideration.

Stalhiem said in a part of the code, it states the Community Development Director is ex-officio to the Planning Commission as secretary. 

Stromberg wondered why we don’t use anything more than the reconsideration available through Robert’s Rules of Order.  Stalheim responded that the simple way of dealing with the ex parte contacts is to get rid of the reconsideration process other than Robert’s Rules.  Stromberg asked how that would limit us.   Stalheim said it might force issues into appeals to be resolved that could have been resolved in front of the Planning Commission.  Under 6.3, it will help expedite the process.  Under Robert’s Rules of Order, we would have to re-notice the reconsideration for the next meeting.  It insures the parties time to appeal. 

Stromberg said the Community Development Director can propose a reconsideration that will then be voted on by the Planning Commission (in the scenario before adoption of the findings).

1.  Meetings.  The Commissioners said they want to try the 10:30 p.m. end time.

2.  Quorum.  This matches the enabling ordinance.  The Commission could recommend to the Council that the enabling ordinance is changed to include the majority of the total members for the Commission

6.  Rules of Order.  This was discussed at length at another meeting, but was brought up again about removing the words “generally” and “strictly.”   Mindlin said the Commission is not that good at strictly following Robert’s Rules of Order and the Commission can open themselves to a challenge based on making an error in some minor procedural point.  Stromberg suggested we use the Robert’s Rules of Order In Brief.  The wording will be left as it is.

10.  Conflict of Interest.  Change excuse to reuse. 

Note:  Any Commission member can request that an item be added to the agenda, however, the member will have to consult the Chair ahead of time or if the item comes up at the meeting, there would be a motion to amend the agenda.   

Recap of Changes

4.2 and 4.3 Duties of Officers.  Under First Vice-Chair and Second Vice-Chair.  Delete “or at the request of the chair…”

6.3.a.iii.  Reconsideration.  Take out the words “During reconsideration” and begin the sentence, “The commission shall first decide, by motion, whether to reconsider and if so, the limits of reconsideration and testimony.”

7.  Procedure.  Delete “as advised by the Ashland City Attorney” and insert “City of Ashland Public Hearing Format for Land Use Hearings, as adopted by the Planning Commission.”  Add that copies of the Hearings Procedures will be made available to the public.

10.  Conflict of Interest.  Change the title to “Public Disclosure.”

14.  Amendments.  Re-word to read:  These rules may be amended at any meeting of the planning commission by a majority of the commission, provided that the text of a proposed rule change and scheduled consideration date is announced at a Planning Commission meeting at least fourteen (14) days prior to the meeting where the rule change is to be considered, and provided further that notice of such proposed amendment is given each member in writing at least fourteen (14) days prior to the meeting.

Stromberg/Dotterrer m/s to adopt the rules as modified in this discussion.  Roll Call:  The rules were unanimously adopted. 

VIII.        ADJOURNMENT – The meeting was adjourned at 11:50 p.m.

Respectfully submitted by,

Susan Yates, Executive Secretary