ASHLAND PLANNING COMMISSION
I. CALL TO ORDER:
August 11, 2020
Chair Haywood Norton called the meeting to order at 7:00 p.m.
||Bill Molnar, Community Development Director
Derek Severson, Senior Planner
Aaron Anderson, Assistant Planner
Dana Smith, Executive Assistant
||Stef Seffinger, absent
Community Development Director Bill Molnar announced the City Council would hold a public hearing on the Appeal of 210 Alicia Street at their meeting Tuesday, August 18, 2020. He noted the Croman Mill Site and explained why a recent conditional use permit was denied. Lastly, staff received numerous emails from the public regarding the Helman Elementary School decision, PA-T2-2020-00020. They were not forwarded to the Planning Commission because the record was closed and the decision final.
III. CONSENT AGENDA
A. Approval of Minutes
1. July 14, 2020 Regular Meeting
Commissioner m/s approved the minutes of the meeting on July 14, 2020. Voice Vote: all AYES. Motion passed.
2. July 28, 2020 Special Meeting
Commissioner Thompson and Pearce had several clarifications and corrections to the minutes of the meeting on July 28, 2020. The minutes were pulled from the agenda for revision.
Commissioner Harper/Pearce m/s to pull the minutes of the Special Meeting on July 28, 2020 from the Consent Agenda. DISCUSSION:
Commissioner Norton clarified staff would make the changes and bring the minutes back to the meeting on August 25, 2020 for approval.
IV. PUBLIC FORUM
V. UNFINISHED BUSINESS
A. Approval of Findings for PA-T2-2020-00020, 705 Helman Street (Helman Elementary School)
Commissioner KenCairn recused herself from the item because she was part of the project. She left the meeting.
Ex Parte Contact
Commissioner Dawkins, Pearce, Thompson and Norton declared no ex parte contact on the matter. Commissioner Harper explained Barb Street emailed him to discuss the project. He had responded that it was still under consideration.
Commissioner Pearce wanted to remove condition 11. That, outside of regular school hours and school events, the perimeter gates shall remain unlocked so as to not to unreasonably limit or restrict access to school playgrounds and greenspaces
. The Commission discussed the rules on changing findings during approval. They wanted the city attorney to research if it was allowed. They also discussed whether to reopen the public hearing or not. Staff had received over 40 emails after the record was closed regarding the playgrounds and greenspaces being locked after school hours. Commissioner Dawkins wanted to make a motion to allow Commissioner Pearce to explain his reasons for removing condition 11.
Commissioner Dawkins/Harper m/s to allow Roger to speak to why he thought the Commission should deny condition 11. Discussion:
Chair Norton would not support the motion. They were not clear they had the authority to make changes and had not consulted the city attorney. Commissioner Dawkins explained the motion was just to hear Commissioner Pearce speak. If he convinced the Commission, Commissioner Dawkins would make a motion to have the city attorney research changing the findings at the approval stage.
Commissioner Pearce explained they were adopting findings of fact, conclusions of law and orders. Nothing was final until the Commission voted to approve the findings. Condition 11 was plainly illegal. Takings law did not apply because it was public property. He read the standard from the Land Use Board of Appeals (LUBA) on when they could impose conditions based on Sherwood Baptist Church v. City of Sherwood, a 1993 Decision. When a condition of approval was imposed, LUBA stated “we must determine whether the evidence in the record would lead a reasonable person to conclude that considering the impacts of the proposed development there is a need for the condition.”
The existing conditions of this development were there was a need for playgrounds in the neighborhood. There was no evidence in the record to show that. Currently the Ashland School District had a playground and it could allow the public to use it or decline public use. It was the Ashland School District ’s property. The proposal modified the campus. After this proposal, there would be the same shortage of playgrounds in the community. It did not increase the need for playgrounds in the community. The Ashland School District would have the discretion to allow the public to use the playground or deny the public to use the playground. There was no evidence in the record that showed the proposal increased the need for playgrounds in the community. Condition 11 told the Ashland School District that even though there was not impact, they had to allow the public onto their property to use the playground. The condition was illegal, and the Commission should not be doing this kind of condition.
Commissioner Thompson commented the public was currently permitted access to school property as at all other schools. The project would install fences and gates and restrict access that was currently available for use. The Commission addressed it by asking them to unlock the gate at the easement location for children to access. Condition 11 would address the community’s current practice to having access to the school as a community greenspace. It was an attempt to preserve it because something was being changed. Commissioner Pearce responded the public was currently using the property, but they were not permitted to use it. The condition established a property right for the public to use it. If the Ashland School District wanted to build a fence, it was their absolute right. This condition would require the Ashland School District to give up a property right. This was something the Ashland School District and the Parks and Recreation Department should negotiate.
Commissioner Dawkins appreciated Commissioner Pearce’s presentation but was more aligned with Commissioner Thompson. If the Ashland School District decided it should be open all the time and did not take issue with it then it was a done deal. He understood the point of taking private property but there was a community vision of having parks with one quarter mile of each neighborhood.
Commissioner Harper also disagreed with Commissioner Pearce’s points. Conditional use permits restricted property rights all the time. He supported leaving the condition in the findings.
Commissioner Thompson suggested modifying the condition where the Ashland School District shall negotiate with the Parks and Recreation Department on allowing the public to utilize the property when school was not in session. Chair Norton responded that meant changing the condition and he wanted it clarified by the city attorney.
Mr. Severson explained the amendment to the main motion was “…to add a condition to open the green space and playground to the public during non-school and non-school event times through the normal access points.”
Commissioner Pearce would support that but noted the condition was not written the way the motion was made. Commissioner Harper thought the idea was having findings that reflected the decisions that were made.
Commissioner Dawkins withdrew the motion.
Commissioner Dawkins/Harper m/s to approve the findings as so written. DISCUSSION:
Commissioner Pearce thought they should use Commissioner Thompson’s suggestion to have the Ashland School District negotiate with the Parks and Recreation Department. Commissioner Thompson ultimately thought it was important these spaces were accessible. She had concerns they were locking down the playground. She was more comfortable with a condition requiring the Ashland School District to talk to the Parks and Recreation Department. She would vote against the motion but supported an amendment to change the language. Chair Norton agreed. Roll Call Vote: Commission Dawkins and Harper, YES; Commissioner Thompson, Norton, and Pearce. NO. Motion failed 3-2.
Commissioner Pearce thought they could change the condition to require the Parks and Recreation Department negotiate with the Ashland School District to continue to allow public access. Commissioner Thompson agreed. She was not in favor of reopening the public hearing. Commissioner Pearce agreed.
Commissioner Thompson/Pearce m/s to approve the Findings for as stated in planning action PA-T2-2020-00020 with the modification that Condition 11 is revised to state that the Ashland School District shall negotiate with the City of Ashland Parks and Recreation Department in an effort to maintain public access outside of school hours to the school playgrounds and greenspaces. DISCUSSION:
Commissioner Dawkins would vote against the motion. He wanted to ensure the open space remained open to the public. Chair Norton did not support changing the conditions and changes like that should be done through a public hearing. He would not support the motion either. Roll Call vote: Commissioner Thompson and Pearce, YES; Commissioner Norton, Harper, and Dawkins, NO. Motion failed 3-2.
The Commission decided to forward two issues for the city attorney to review. One, whether conditions in findings, conclusions and orders could be changed after the preliminary decision. Two, was if condition 11 was legal.
Commissioner Harper/Thompson m/s to continue this item to next the meeting. DISCUSSION:
Chair Norton noted one question for the city attorney was if it was legal. If not, then ask the city attorney if they added the negotiation language that Commissioner Thompson had suggested, would if then be legal. The third question would be, could the Commission change it in their consideration of findings, or to change it, do they have to reopen the public hearing. If they were going to change it, did they need to reopen the public hearing based on the over forty emails. Commissioner Thompson thought it might be simpler to ask whether a condition that mandates the Ashland School District in any fashion to make its property available to the public for use outside of school hours would be a lawful condition. And whether the condition was modified to negotiate the condition to require it through negotiation or just absolutely mandate it seemed to her a nuance that she thought the city attorney might have trouble grappling with in rendering a legal opinion. Commissioner Pearce thought the city attorney would have trouble rendering a legal opinion about whether it was legal or not. It was a law applied to fact situation. Commissioner Thompson explained they could ask the city attorney the standard for evaluating the legality or is it legal and what would the standard be. Chair Norton did not think the Commission had changed a condition as part of the findings in the past five years he had served on the commission. This was the first time it had come up and he thought it needed to be clarified. Commissioner Pearce disagreed. They had changed conditions of approval before. Commissioner Thompson thought it was worth asking. They had changed wording in the past. This was a specific decision they were trying to reconsider now. Roll Call Vote: Commissioner Pearce, Thompson, Harper, Norton, and Dawkins, Yes. Motion passed.
VI. TYPE II PUBLIC HEARINGS
A. PLANNING ACTION: #PA-APPEAL-2020-00011 (appealing PA-T1-2020-00109)
SUBJECT PROPERTY: 345 Clinton Street
OWNER/APPLICANT: Rogue Planning and Development/Paul Mace & Kathleen Kahle
DESCRIPTION: Consideration of an appeal of the administrative approval PA-T1-2020-00109 of a two-lot partition of a 12.29-acre lot for the property located at 345 Clinton. The tentative partition plat creates two parcels that are 8.943 ac. and 3.35 ac in size, with the smaller parcel situated in the southeast of the parent parcel. COMPREHENSIVE PLAN DESIGNATION: Single Family Residential; ZONING: R-1-5; MAP: 39 1E 04 DB; TAX LOT: 401
Commissioner KenCairn returned to the meeting. Chair Norton read the rules of the public hearing during an electronic meeting.
Ex Parte Contact
Commissioner Dawkins and KenCairn declared no ex parte contact but were familiar with the site. Commissioner Pearce, Thompson and Harper had no ex parte contact or site visits. Chair Norton had no ex parte contact but had driven past the site.
Senior Planner Derek Severson provided a presentation (see attached
- Vicinity Map
- Aerial Photo
- Photo from the corner of Clinton/Ann
- Photo from end of Briscoe Place
- Preliminary Plat
- 18.5.3.050 Preliminary Partition Plat Criteria
- Proposed Additional Condition
- Adjoining Land
- Street Dedication Map (TSP Figure 10-1)
- North Mountain Neighborhood Plan (NMNP) Street Layout Map
- 18.5.3.050 Preliminary Partition Plat Criteria E, F & G
- 18.5.3.050 Preliminary Partition Plat Criteria (cont’d) H 1 & I
- 18.5.3.050 Preliminary Partition Plat Criteria (cont’d) J & K
- Floodplain & Possible Wetland
- Potential Buildable Areas
- Staff Decision
- Appeal Issues
- Appeal Issue #1 - Incomplete Application
- Appeal Issue #2 – Defective Notice
- Appeal Issue #3 – Access to Inspect Record
- Appeal Issue #4 – Digital Access
- Appeal Issue #5 – Additional Time
- Appeal Issue #6 – Multiple Land Use Decisions
- Appeal Issue #7 - Multiple Land Use Decisions
- Appeal Issue #8 – Appeal Noticing
- Staff Recommendation
Staff recommended the appeal be denied and the original staff approval be upheld with the conditions in the staff report.
Questions of Staff
Commissioner Thompson asked about online materials not including the application or the receipt and later they were on the city website. Mr. Severson confirmed the application form and receipt were not initially on the website. The application submittal materials were online. Commissioner KenCairn added the application was the one-page zoning application.
Commissioner Pearce asked staff to address the easements on the property that were not located in the survey. Mr. Severson’s limited understanding of survey law was surveyors were supposed to include all easements on the plat. If the surveyor found an easement so poorly written it was difficult to locate, they made a note on the easement for a title report referencing it could not be located. Some of the older descriptions were so vague they could not be found on the property. The applicant had included a letter from the surveyor in their rebuttal submittal that was distributed earlier in the day.
Amy Gunter/Rogue Planning and Development/Medford, OR/
Explained the applicant supported the staff decision. Many of the issues raised by the appellant were procedural issues the applicant could not speak to. They had turned in a signed application form and the applicant’s paid the fee. The notice of application was mailed to property owners within 200-feet of the property. Adequate notice was provided electronically. Numerous comments were received on the Type I proposal. There was not a lack of public awareness of the proposal. The proposal was consistent with the approval criteria in 18.5.3 Land Divisions and Property Line Adjustments
. The platting was consistent with Oregon state law ORS 92 for subdivisions and partitions.
She provided a presentation (see attached
• Aerial photo of the Site
• Partition Plat of the Site
Ms. Gunter clarified the “L” shaped property where Carol Street terminated into Clinton Street and extended over to Oak Street had a legally stipulated open space plan on it and could not be developed. There were portions of proposed parcel #1 that could be partitioned in the future.
• Proposed Partition Plat
Ms. Gunter clarified the flood plain area was in the 500-year flood plain. It followed the 100-year flood plain boundary on the survey plat. The future development of the property because it was single family zoned property there was no minimum density requirements. The property could have anywhere from one single family home to whatever density bonuses the developer could come up with to increase density beyond the 15 units per acre. That was why there was not a formal development plan submitted with the original application. There was not a plan of any sort. The survey plan and future lot lines demonstrated the proposal did not have impacts to the natural resources. As a partition of this future property or future subdivision went through, it would be reviewed by staff or the Planning Commission.
• Natural Features
They were not opposed to the condition of approval. The lay out preserved the owner’s access to their own driveway in the event the someone had a different development plan for site lay out.
Questions of the Applicant
Apologized to Community Development Director Bill Molnar, Assistant Planner Aaron Anderson and Planning staff if he had appeared rude to them. He strongly contested that staff made multiple attempts to provide him access to records. He first requested access to the records May 28, 2020 and they were not made available to him until he paid the $150 appeal fee.
There were two critical issues involved. It was his contention that one, the application was not complete. One was the statements on the easements on the partition plat referred to earlier. He had submitted his first questions about these items May 28, 2020 and received a reply at 11:00 a.m. this morning after he had paid his appeal fee.
One of the comments a staff member and Mr. Hibbs from L.J. Friar & Associates P.C. had made referred to his ability to read a survey map. Mr. Elerath provided his background, credentials, and education regarding his experience with engineering drawings, survey maps, and his career in construction and architecture. He described the process used at one of the firms for requests for information. He went on to explain he had left a place of employment due to concerns regarding public-private partnerships and indicated there might have been corruption.
He was not sure the amount of money the City requested for the application was disclosed or paid for by the applicant. He was unable to find it. The record showed he had raised his concern to the Planning Department and not Mr. Hibbs but he had on May 28, 2020. Mr. Hibbs’ response was forwarded to him from staff via email at 11:00 a.m. this morning. This was the first reply he had received from the City despite several efforts on his part stating that the application was not complete. Staff’s email stated the rebuttal was from the applicant, but the application did not include Mr. Hibbs’ name. The applicants were Paul Mason and Kathleen Kahle. From the email it did not appear it was reviewed by the applicant or Rogue Planning Development whose name and signatures appeared on the application. He did not question Mr. Hibbs’ integrity and apologized if he had taken offense to his comments.
He explained that not long after he moved to Ashland there were land use documents that were messy and problematic. For example, during an escrow for closing on the purchase of his house on Clinton Street, he received a copy of a title report prepared for a different plot of land. He described the ordeal that ensued to attain the appropriate title report.
Mr. Hibbs’ response still did not answer the question he had asked with his very first reply. If Mr. Hibbs was relying on information from the title report, he should provide a copy of the title report and the name of the title insurance company. If he were paying for Mr. Hibbs service, he would not pay him until he got better responses than the ones he had received.
Chair Norton paused Mr. Elerath’s testimony to let him know he had just over five minutes left to speak.
Mr. Elerath resumed his testimony and explained the drawings showed there were easements for two diches, pole lines and cable lines that could not be found. He asked what if the ditches showed up tomorrow and they were 50-feet wide concrete lined irrigation canals? What if the pole lines were 300-foot tall high voltage towers or 5G network towers scattered across the property? What if the cable television easement was for Verizon or Comcast to bury gigantic cables to carry data from the tower? What would happen to the wildflowers, wetlands, trees and wildlife? Would the title company guarantee clear title to that? The entire proposal looked dubious to him. The history did not pass the “sniff” test because these questions were not answered earlier, and he had just got an answer. The application still was not complete until these serious questions were answered in full to the satisfaction of the effected party. He wanted the planning action decision withheld until a clarification on the two issues of the easements in the title report regarding the size of the pole lines, ditches and cable lines, as well as the receipt for the application fee.
Rebuttal by Applicant
Amy Gunter/Rogue Planning and Development/Medford, OR/
Explained Mr. Hibbs from L.J. Friar & Associates P.C. was hired to do the survey. He was not listed on the application form but was on the cover page of the applicant’s written findings. She could not speak to surveys and when easements were not located. Mr. Hibbs had extensive experience and she trusted his knowledge.
Chair Norton asked Mr. Elerath if he was requesting information on the receipt and utilities. Normally at this time they would close the record. Mr. Elerath wanted to leave the record open. Saying something was there did not mean it was there. He did not have an answer to the question he asked over 60 days ago. The application was not complete. It was a submittal, not an application. The application was the cover sheet, everything else was a submittal.
Mr. Severson explained the process would leave the record open for seven days where anyone could provide new argument or evidence until August 18, 2020 at 4:30 p.m. Argument or responses, but not new evidence, to the submittals from the first seven days would be submitted for another seven days until August 25, 2020 at 4:30 p.m. The next seven days would allow final argument from the applicant only, but no new evidence, until September 1, 2020 at 4:30 p.m. The Planning Commission would reconvene via Zoom at their next regular meeting on September 8, 2020 to deliberate and make a decision. The 120-day deadline was September 12, 2020. The Planning Commission would adopt findings at their meeting on September 22, 2020. Mr. Severson clarified only the applicant and appellant could submit argument or new evidence the first week the record was open, closing September 18, 2020 at 4:30 p.m. The applicant and appellant would respond to submittals from the first week by September 25, 2020 at 4:30 p.m. and the applicant only would submit a response the last week by September 1, 2020 at 4:30 p.m.
Assistant Planner Aaron Anderson noted the receipt and application were in the planning action record on page 83 and 84. Mr. Severson brought up page 83 and 84 of the planning action record showing the application and the receipt. Mr. Elerath responded the receipt and application was no longer an issue. He wanted a response and clarification from the title company as to what the easement ditches were and wanted the reason why the law required them. Chair Norton asked Mr. Elerath to send the items that were not addressed to Mr. Severson who would respond.
Questions of Staff
Commissioner Dawkins asked staff why Phelps Street went all the way through when it seemed to line up with the driveway. Mr. Severson explained if a half street was installed next to a driveway on two separate lots, they would have to be at least 24-feet apart. Commissioner KenCairn asked for clarification that an existing driveway could not be adopted into the street dedication. Mr. Severson responded typically that would not happen. The driveway was next to a street on a separate property, so the driveway needed to be separate from the street.
Mr. Molnar wanted to make sure everyone was clear on what was allowed during the record remaining open. He understood there might be a request from Mr. Elerath for information from staff. He doubted staff would have the availability of the easements. Mr. Severson did not have that information. He only had what was on the plat. Commissioner KenCairn asked it they could be abandoned by the property owner. Commissioner Pearce suggested letting the parties submit whatever they wanted to submit. What staff had to give to someone was covered by existing law.
Commissioner Harper did not want the appellant to think that staff was going to research the easements. It was the responsibility of the appellant to submit and research whatever he wanted. That was why they were leaving the record open. It was not on the City to do the research. Commissioner Harper wanted everyone’s expectations to be clear regarding the comment periods. Commissioner Thompson thought it might be helpful to Mr. Elerath to know the Planning Commission’s job was to determine whether the statutory standards for the partition were met. His questions may be more for the developers in the future. Commissioner Pearce thought Mr. Elerath could argue if the standards were applicable. Commissioner Thompson agreed.
Chair Norton continued the item to the meeting on September 8, 2020.
Meeting adjourned 9:11 p.m.
Dana Smith, Executive Assistant