Agendas and Minutes

Planning Commission (View All)

Regular Meeting

Minutes
Tuesday, October 08, 2002

ASHLAND PLANNING COMMISSION

REGULAR MEETING

OCTOBER 10, 20002

MINUTES

CALL TO ORDER

The meeting was called to order by Chair Mike Gardiner at 7:10 p.m. Other Commissioners present were Mike Morris, Russ Chapman, Marilyn Briggs, Alex Amarotico, and Colin Swales. Ray Kistler arrived at 8:30 p.m. Kerry KenCairn was absent as she was involved with two of tonight's actions. John Fields was absent. Staff present were John McLaughlin, Bill Molnar, Mark Knox, Maria Harris, Brandon Goldman and Sue Yates.

APPROVAL OF MINUTES – Amarotico moved to approve the minutes of the September 10, 2002. Chapman seconded the motion and the minutes were approved.

Chapman moved to approve the Findings for PA2002-054 (Nomoco). Amarotico seconded the motion and the Findings were approved.

Chapman moved to approve the Findings for PA2002-101 (City of Ashland Parks Dept.). Swales seconded the motion and the minutes were approved.

PUBLIC FORUM - No one came forth to speak.

TYPE II PLANNING ACTIONS

PLANNING ACTION 2002-113 AND 2002-115

REQUEST FOR SITE REVIEW APPROVAL TO CONSTRUCT AN ENCLOSURE WALL AROUND THE "A" STREET PAVILION, AND CONDITIONAL USE PERIT TO ALLOW THEATER, NIGHTCLUB, AND BAR USES WITHIN THE "A" STREET MARKETPLACE AND ADJOINING PAVILION LOCATED AT 340 OAK STREET.

APPLICANT: "A" STREET MARKETPLACE

Site Visits and Ex Parte Contacts – Site visits were made by all. Morris said the property used to be family owned, but believes this would not be a conflict of interest.

John McLaughlin stated that a letter was submitted by Allan Sandler, raising a point of whether Colin Swales should hear this action.

Allan Sandler, 1260 Prospect, spoke, challenging Swales’ ability to sit on the Commission for his planning action. He believes Swales has had detailed conversations regarding this project. Sandler believes he has not had the opportunity to tell his side of the story for an extended, more relaxed period of time than the time allotted at the hearing. He requested Swales remove himself from the hearing regarding the A Street Marketplace and the Conditional Use Permit portion.

McLaughlin directed the Commissioners to let Swales respond to Sandler's letter and comments. The Commissioners have a right by vote to decide if a Commissioner should or should not sit on the hearing. It is grounds for appeal if a commissioner is biased or has a conflict of interest.

Swales said he was a member of the three member Hearings Board and heard Sandler's application. He declared an ex parte contact which consisted of being present at the Historic Commission meeting when the A Street project was discussed. At that meeting, he had the opportunity to hear the applicant's testimony and also Philip Lang's testimony. Swales received a copy of the letter Lang sent to the Planning Commission. Apart from that, Swales said he has been scrupulously careful not to discuss this subsequently with Mr. Lang. He has no ex parte conflict to declare in this matter. Swales said the Historic Commission met in August. The Commissioners were provided with a copy of the August 13, 2002 Hearings Board.

Chapman does not see anything in the August 13, 2002 minutes that would discredit Swales.

Gardiner said they know that Swales and Lang interact on different issues. Addressing Swales, Gardiner asked if Swales feels he can be impartial and that he has no conflict of interest in this case, and that he has not been nor will be influenced by anything he has heard that the rest of the Commission has not heard. As long as Swales has not had any further communication on this, then Gardiner does not have a problem. Swales said he heard both sides at the Historic Commission meeting and has had no further communication on this matter with Lang.

STAFF REPORT

Goldman said the two planning actions are independent applications. One is not tied to the other. The renovation project of A Street Marketplace is nearing completion and the applicant is requesting a Conditional Use Permit to allow for the open air pavilion to be used for a variety of venues including use as a nightclub, concerts, dances parties, and theatrical performances. The second application is to enclose the pavilion. Enclosure is not proposed as part of this CUP and the separate application will be reviewed subsequent to this hearing.

In August of 2002, the applicant applied for a CUP to operate the pavilion in the same fashion as proposed today, however, the applicant withdrew his application and the Hearings Board denied the application. This is a new application. The pavilion space is located on the eastern portion of the building and encompasses 4300 square feet. The applicant has proposed to use the open-air pavilion as well as the interior of the marketplace for entertainment. Staff has determined that their most intense uses are comparable to nightclubs and bars and are very similar in nature to other uses that are permitted outright in the E-1 zone, specifically, restaurants. Because this is in close proximity to residential, the nightclub use could potentially have an adverse impact on the neighborhood and the CUP process can help minimize the any adverse impacts. No modifications of the structure are proposed with this application. The scale, bulk and lot coverage will remain unchanged. The highest intensity use would be concerts.

The applicant has attempted to address the potential adverse impacts of the proposed conditional uses by comparing people hours associated with the most intensive use proposed (concerts) to the outright permitted use (office). Staff does not believe the people hour comparison fully accounts for the full impact over a full year and thus the comparison is somewhat deficient. The 4000 square foot scenario spreads the parking demand throughout each business day over the course of a year, therefore, there is no peak impact that is directly comparable to 200 individuals coming to a concert for a single event. Staff appreciates the applicant's attempt to quantify the differences between the highest impact conditional use and the office use. The comparisons are valuable in looking at the aggregate impact, as proposed. It doesn't address the peak impact, specifically, the off-street parking that is of primary concern in this CUP application.

Bike parking was required as part of the previous site review approval granted in 1999 and ten spaces were located within the pavilion space. The applicant has said they will move the bike parking near the other entrances to the A Street Marketplace. Staff has not seen a plan in order to determine whether or not pedestrian flow would be impeded. A Condition is recommended that a revised bike parking plan be submitted prior to operation of the CUP and that it installed prior to operation.

Staff recommends applying one parking space per four attendees. This would be in keeping with the requirements for theaters, restaurants, and churches and other similar uses. The number of people coming to the site can be regulated more appropriately than just looking to the square footage of the building.

Staff's occupancy scenarios attempt to categorize the scale of the conditional uses based on the number of people in attendance. Staff recommends a simplified occupancy scenario that restricts the number of attendees to the pavilion conditional use events (not the floor area). Staff believes the venue organizers can establish the total number of tickets available to a given event or nightclub use and restrict the occupancy of the door more easily than restricting the occupants to a certain area of the building.

Staff has recommended a total of five scenarios. The Staff Report outlines four of them. A maximum event size has been added that would allow between 160 and 200 attendees at a given event. That event would require all parking spaces be used for the conditional use permit. Therefore, all restaurants and retail space on the inside would be closed. With the revised large event of 120 to 160 attendees, the requirement would be reduced to 40 spaces necessary for the conditional use and 11 allocated and made available to the retail and restaurant use. A medium sized event of 60 to 120 attendees would require 30 parking spaces for the conditional use. A small event of less than 60 attendees, would only require 15 parking spaces. Lastly, when there is no conditional use permit activity, all permitted uses can remain in operation either in the pavilion or enclosed space concurrently.

Due to the versatile nature of the proposal, compliance with the noise ordinance will be largely the responsibility of the applicant. Violation of the noise ordinance could be seen as grounds to rescind a CUP.

The proposed uses typically involve a significant amount of specialty lighting. In order mitigate these potential adverse effects, Staff has recommended a condition that lighting not directly illuminate any adjoining property, including the public right-of-way. Goldman explained that direct illumination is a focused light into an area where it is not shielded from view. In the event the pavilion space is enclosed, the theatrical lighting will be contained within the building. The enclosure Goldman referred to is the curtains that are currently in place.

The applicant recently completed the relocation of a sidewalk that had previously been approved to travel within the footprint of the pavilion. Now that it is located outside the building, there is a clear pathway for pedestrians without having to enter the pavilion. The applicant has addressed the issue of peak pedestrian time by showing textured concrete crossings on A Street at the intersection of A and Oak as well as showing striped crossings at the intersection of Pioneer and A Streets. Staff believes these pedestrian amenities will suffice to accommodate the pedestrian traffic generated by the conditional use.

Goldman explained the application states that the facility will be used for lectures. Staff believes that even though lectures are less impacting than the highest intensity conditional use proposed, the number of attendants could equal that of a concert. Staff believes the use is similar to entertainment and will also require a conditional use.

Staff has recommended 11 Conditions. Condition 3 outlines the conditional use event designation as small, medium or large events. Staff would like to add the maximum event of 160 to 200 individuals.

The applicant has included in their application a limitation on their hours of operation (addressed in Condition 7). The Condition is recommended to establish a baseline required for the noise standards. The independent analysis is to be a one-time analysis. Staff wants evidence that a typical event will comply with the noise ordinance prior to operation of the conditional use.

Staff is recommending a Condition 12 that no conditional use of the pavilion space be permitted beyond 10:00 p.m. and no amplified music or drumming shall be permitted after 7:00 p.m. until such time the building is permanently enclosed and rendered soundproof.

Condition 3 shall read: That all conditional use events be designated as small, medium, large or maximum events and shall conform to the following: Maximum event = 160 to 200 attendees, requiring 50 parking spaces. All restaurants and retail spaces are closed. Large event = 120 to 160 attendees, requiring 40 parking spaces. 1100 square feet of restaurants can be open or 3850 square feet of retail space. The medium and small events are as stated in Condition 3.

With regard to Condition 5, the applicant is saying the curtains are windows. Banners are temporary signs and are illegal signs under our code. Staff believes Condition 5 should stay as it is.

Swales asked what would happen if a store went out of business and, the business could be permanently turned into a bar. Goldman said that would permanently reduce the number of attendees for the pavilion space.

Briggs asked how many days prior to each event would the applicant have to notify the Planning Department. Goldman said the applicant will address this issue, but he would hope they would have a schedule of events each month. If the Commission feels this is too cumbersome, they could omit it.

McLaughlin said they would have the discretion to restrict their approval to the common areas, center court, and any changes would require separate approval.

PUBLIC HEARING

ALLAN SANDLER accepts the Staff Report as written with the with Staff's clarification this evening with the following comments and exceptions. He gave the Commission a letter he received from Philip Lang. Lang is opposed to the application.

He hopes to clarify the conditional uses of a bar, restaurant and theater. They agree the adjacent parking lot is not part of the pavilion. While they accept the Staff's concept or number of fixed seats for the basis of granting their request, he would add that it would be hard to have more than 170 people at an event at any one time. He would like show the comparison of people utilizing the entire space in a single day as related to the already approved CUP uses. By granting the CUP's instead of having offices or more commercial space, as allowed, they are mitigating the number of people using the space throughout the year. On those nights they have the highest use in the pavilion, essentially the rest of the Marketplace is closed and they are still not exceeding the office or commercial use of the space.

Sandler agrees with the occupancy scenarios. They will comply with the noise ordinances. As an additional condition, until such time the pavilion is enclosed, they will not operate CUP related events past 10:00 p.m. and they will not use drums or amplified sound past 7:00 p.m. in the pavilion. It would be cumbersome to make reports of every event.

With regard to lighting, the pavilion is enclosed with curtains that are designed to keep the activity inside the pavilion and not on the street. They agree with Staff and will abide by the lighting codes, as written.

The bike racks are a part of their final conditional occupancy for the entire building. They are in the process of working with Staff on this. Since their original application, it is apparent that painted crosswalks will be much better for visibility for pedestrians and autos. They will talk to Public Works about not putting in textured concrete in lieu of the highly visible reflective crosswalks.

Sandler takes exception to the Staff Report comments regarding not enclosing the pavilion. He believes they can mitigate both light and sound concerns by interjecting the three points already discussed. Curtains are already in place and available to deal with the light. In addition, they have agreed to abide by the ordinance and have not asked for any variance. The enclosing of the pavilion is just in the development stages. There is a question as to whether the pavilion is best as an open-air facility or a closed one. They have agreed to add one more group size (maximum).

They do not agree with the condition regarding temporary signs and banners. It puts an unfair condition on the pavilion. He requests living by the existing sign ordinance. He wants the latitude of what the ordinance allows. He is not asking for a variance to the sign code.

Briggs wondered about Sandler's plans to enclose the pavilion. Sandler said it is possible it will not be enclosed. They are studying it now.

Swales referred to an article in the Tidings that quoted Sandler. Sandler said his comments were not just referring to the CUP activities but other approved activities. The article was written long before Sandler began working with Staff. He does not believe the article has any bearing on this hearing. Swales' concern is if this CUP is approved, it gives Sandler the ability have a bar or nightclub use seven days a week. Sandler said people won't come seven days a week. This is a multi-use facility.

Chapman asked how many people could be outside if there is a 200-person event. This would be a part of the crowd that can't get into a concert. Sandler said if the event is inside, he doesn't know why people would be outside.

Amarotico asked if smoking would be allowed. Sandler said they have not made a decision in the pavilion. There is no smoking in the Marketplace.

Swales said on Page 6 of the Staff Report, it mentions the possibility of hanging bike racks on the wall. He checked with Public Works to see if there was space for the bike racks and while there, found that the sidewalk cafe in operation by a tenant is operating without a permit. His concern is how much control Sandler does have, as a landlord, over his tenants. How would he police the operation and timing of the pavilion? Sandler said the cafe operator has applied for a permit. They are working with Staff on the bike racks. He is in constant contact with Adam Hanks, Code Enforcement Officer.

CHRIS DECKKER, 411 Taylor Street, stated he is the event promoter of the space. They are not trying to create a nightclub. They will be keeping within the limits of the city standards. They are to create a community art/culture space. The support has been overwhelming.

PATRICK BALDUCHI, 590 Elizabeth, stated he supports the proposal.

PHIL LANG, 758 B Street, stated his written comments are in front of the Commissioners. He asked that his testimony at the Historic Commission meeting on August 3, 2002 be submitted as part of the record. What Sandler has asked to do does not meet the requirements. He is opposed to granting the CUP requested by the applicant. The City cannot legally approve this use on this site. The issues affecting the granting of the presumably legal conditional uses, all indicate the application should be denied. All the documents, signs, etc. indicate this request is for a "theater". Nowhere in the potential conditional uses allowed in the E-1 zone is there a conditional use for a "theater". Theaters are allowed in C-1-D zones. This should be the end of the story. "Theater" is defined as a building or part of a building or outdoor area for housing dramatic projections.

With regard to bar and nightclub, the major issue is the target use of the zone and the impact area of the zone. The target use of the zone is E-1. The proposed use will have a major negative impact on the surrounding area. The impact area consists of R-2 zoned land on two sides of the property. The applicant proposes intensification of the use not allowed in E-1. The times proposed by the applicant will be other than daytime hours and will disrupt the quiet enjoyment of the residential uses. It will be an intensification of use, people, parking, traffic, and noise. The quality of life in the residential neighborhood has already been degraded. Now there will be young adults, while driving, accidents, bottles, cans, trash, speeding, parking for bathroom relief, parking for post-event arguments, cars, fights, and fists. Lang request that the Commission not abrogate or misinterpret code sections that meant to protect our neighborhoods and asked the Commission deny this application.

Kistler arrived at 8:30 p.m.

McLaughlin said this is a difficult application and difficult trying to figure out where it falls. They are looking at a performance space and trying to define it under our code. They are seeing a variety of performances whether they are musical or spoken. Staff sees this as different than a theater. The space is built for a performance space and the most similar uses seem to be bar and nightclub. Staff believes the category is appropriate.

McLaughlin said the Commission has the power to set conditions. One condition is the regulation of signs. This is a difficult building to define what a window is. Staff sees what appears to be a temporary banner or temporary sign that would not be allowed on other buildings. They want to be explicitly clear that these types of signs and banners are not allowed on this building. The Commission can regulate signs independent of the sign code. Staff believes that given the nature of the building and the types of uses, that temporary signs are not appropriate.

Goldman said with regard to Condition 3, that it can be omitted and the applicant will not have to notify the Planning Department in writing of upcoming events. The school condition can also be omitted.

Goldman said the new Condition 11 shall read: That no conditional use of the pavilion space be permitted past 10:00 p.m. and no amplified drumming or music shall be permitted after 7:00 p.m. until such time the building is permanently enclosed and rendered soundproof.

Morris asked if the hours of operation meet the ordinance. McLaughlin said the decibel limits have to comply during the hours of operation.

Swales said a couple of days ago, Ashland Creek Bar and Grill was cited for unamplified music. This proposal is talking about just having curtains screen the noise. How can this proposal meet the ordinance if even unampliflied music cannot meet it? Goldman said Condition 7 is an attempt to quantify the noise. If an independent noise analysis is done, when the amplified sound equipment is being used and it does comply, then they will have to be able to establish a baseline of how much they can amplify the music for a particular venue.

McLaughlin said there are two different approaches to the noise ordinance. There are the decibel limits that are usually used for fixed noise sources such as a heat pump. The other part is where one exceeds limits considered reasonable by a normal person. With Ashland Creek Bar and Grill, complaints have been filed by nearby neighbors. McLaughlin does not know if there has been a conviction. The sound measurements are taken from the nearest residential structure in a residential zone from the noise source. The applicant, in this case, has agreed to comply with the noise ordinance.

Swales said the adjacent properties have a residential overlay. How does this application affect the development of those properties and the ability of the owners to develop residential uses? McLaughlin said the primary purpose of the E-1 zone is light industrial office, commercial use. The residential overlay is secondary. The residential overlay is not to preclude the standard commercial uses. Those individuals living in an E-1 zone are accepting the impacts of living within that zone.

Chapman thought about the generation of traffic and how it could have severely impact the residential neighborhoods during an event with 200 people. He feels this places an awful burden on Staff to monitor this. He is having a hard time making a case for approving this application. Goldman said Oak and A Streets are arterial streets and can accommodate the added traffic during an event. McLaughlin said the Commission can consider it and can weight it in making their decision.

Rebuttal

Sandler noted he felt there is a conflict of interest with Swales. He reiterated they are going to abide by all the ordinances. They have asked the police to do sound readings for them. Soundproofing means zero sound. That would be difficult to achieve. They will meet the code.

COMMISSIONERS’ DISCUSSION AND MOTION

Kistler missed the Staff Report and the applicant's presentation. He will not be voting.

Swales said he can appreciate what the applicant is endeavoring to do, however, because the word "theater" is in the request, he does not see how we can approve it. With regards to nightclub and bar uses in the E-1 zone with the residential overlay, he has a lot of concern about the request. Before the last Hearings Board meeting (he was a member), he reviewed the original ordinance and read portions from that ordinance to the Commission. Concerns were raised within the surrounding neighbors about the compatibility of nightclubs and bars within residentially zoned uses. Similarly, concerns were raised in the Railroad District about the potential location of a nightclub on A Street. The Staff Report talked about potential conflicts that had arisen in other commercially zoned areas of the city, primarily in the E-1 zone in the North Main area and the E-1 zone in the Railroad District. After it went to the Council to make nightclubs and bars a conditional use and not a permitted use, the Staff Reports added there were concerns about potential locations of bars and nightclubs in C-1 zones and E-1 zones in close proximity to residential areas in the historic interest area. It seems that the ordinance was actually changed to put severe restrictions on where you could have bars and nightclubs in this particular E-1 zone as well as the adjacent property that will be developed across the tracks (with residential overlay). It seems that it has an adverse impact.

Swales searched the Tidings website using bars and nightclubs and came up with a police log. There were several instances of police reports of disorderly conduct, assault, property damage, etc., particularly at Kat Wok (downtown). Even though Sandler is not proposing another Kat Wok, what this application is asking for, is permission to do exactly what goes on in the Kat Wok. Therefore, he finds it completely incompatible with the neighborhood and believes the application should be denied.

McLaughlin noted that Swales just introduced substantial new information that was not part of the testimony during the public hearing, including the police report and the information from adoption of the ordinance. The Commission has to give the applicant an opportunity to rebut that information. The Commission needs to be careful at this point of the hearing, introducing this type of information without giving the applicant an opportunity to hear it early on, especially in a way that influences the decision-making process. Information has been introduced that should have been declared as an ex parte contact or introduced during the public hearing portion of the meeting. Sandler needs to be given the opportunity to rebut in relation to his application. The information was not made available to the other decision-makers. It needs to be made available as part of the packet or at the very beginning of the meeting. It is information Swales was using to formulate his decision. The Commissioners need to find the fairest way to provide rebuttal.

Gardiner believes it is important to follow the guidelines. When we are in Commissioners' Discussion, we are discussing what has been brought out in the public testimony before us. He agrees with McLaughlin.

GARDINER RE-OPENED THE PUBLIC HEARING

Sandler noted that it is obvious that Swales had his decision made before he came to the meeting. Sandler asked the Chair to read the statement Swales made at the Hearings Board and that he be disqualified from voting. He believes Swales has been in contact with Philip Lang. Sandler feels Lang is very much opposed to his proposal. He has not had a chance to look over what Swales has presented tonight.

Goldman referred to the minutes referring to Site Visits and Ex Parte Contacts. "Swales attended the Historic Commission meeting where this was discussed. Philip Lang spoke at that meeting and Swales heard his testimony. Lang also has a letter to the Planning Department stating his concerns with the applications. Lang's main concerns are development along A Street and parking issues. Briggs had a site visit." The minutes are not verbatim. That would be part of the tape recording.

McLaughlin said the Commissioners have already decided that Swales can hear and vote on this issue.

COMMISSIONERS' DISCUSSION AND MOTION

Gardiner asked Swales again if he thought he could make an objective decision. Swales feels very strongly that he can make an objective decision.

Because of prior approvals at this site, Gardiner has envisioned this type of development and use and favors the proposal. The Conditions seem to define strictly what the applicant can and cannot do. He sees the possibilities for music venues but he also sees other opportunities for other activities too.

Morris favors the application but feels the process has been corrupted. He is not comfortable with it now. He likes what is happening at the site. He doesn't have a problem with the parking or the scenarios. Right now it is too open to challenge.

Amarotico shares some of Swales' last point. He is not against the use. He would like to hear the Ashland Police Department talk about their perspective before making a ruling.

Morris said the whole idea of comparing this to Kat Wok does not exist. It does not even seem like it is a valid case. Kat Wok is a whole different venue. He doesn't see where this would be the same type of a nightclub as Kat Wok.

Gardiner just wants to follow the procedures. We owe it to the applicant to vote it up or down.

Swales said he has no objection to the portion of the application where it mentions cross-cultural community performing arts space. He has a problem with the nightclub and bar in such close proximity to residentially zoned property. That's why Swales feels the ordinance was changed. That is why he does not believe the use is suitable.

McLaughlin, in an attempt to clarify, said the phrase nightclub and bar has come from Staff as being the most similar use in the zoning code for what the applicant is asking for. It is basically a performance space that will allow for the sale of alcohol. Staff says that a nightclub category is what fits best in terms of filing an application. There is no classification for performing arts center or performance venue. The applicant has stated the nature of performances they plan to put in place there. They agreed to hours of operation. Kat Wok has a much later night situation.

Swales suggested looking at a "theater" use in the E-1 zone. If the enclosure of the pavilion takes place, it would seem there would be no limitation on the hours, then there would be a situation almost exactly like we have at Kat Wok.

McLaughlin said the ordinance wasn't changed to limit it to the downtown and it wasn't changed to prohibit the uses. It made them conditional. Under what conditions is a nightclub and bar appropriate? The Commission has established conditions. The change in the ordinance was not to preclude this from ever happening.

McLaughlin said the Commissioners can stipulate, if the pavilion is to be enclosed, that any expansion of the nightclub use or hours of operation could come back to the Commission for further review. Or, the Commission can deny the use.

Swales feels that it is not appropriate to have a nightclub right next to an R-2 zone.

Chapman is still struggling with the conditional use having no greater adverse material effect on the livability of the impact area. He agrees with Swales. The daytime uses seem appropriate, but he is struggling with what is going to go on during the evening hours. The applicant has attempted to mitigate those things by agreeing to the Conditions. He still thinks it is going to be tough for Staff to monitor the activities.

Briggs was willing to go along with Staff's belief that the application meets the Conditional Use Permit criteria and added Conditions. Also, the Condition that the pavilion be enclosed is very prominent in her thinking because she doesn't want it to contain any factors that would spill into the neighborhood. How many would be in favor of requiring enclosing the pavilion? Swales feels the enclosure would mitigate it to a large extent. Four Commissioners voted not to make it a Condition to require enclosing the pavilion.

Goldman suggested modifying the last part of Condition 12 to read that at the point of enclosure, should the applicant wish to extend the hours, that they would need to apply for a Conditional Use Permit. Also, the Commission can clarify where the conditional use activity is limited.

The Commissioners agreed to strike the original Condition 11.

Chapman conceded that it's hard to argue for the negative impact when we've only had one person testify against the proposal. He likes Swales' condition of limiting the conditional use to the pavilion. He would support the proposal.

Goldman amended Condition 11 to read, That no conditional use of the pavilion space be permitted past 10 p.m. and that no amplified music or drumming shall be permitted after 7 p.m. Condition 13, That the conditional use shall be restricted to the pavilion space and the interior courtyards.

The Commission agreed to strike the last sentence of Condition 3.

Morris moved to approve PA2002-113 with the revised Conditions. Chapman seconded the motion and it carried with Swales voting "no".

PART TWO - PLANNING ACTION 2002-115

STAFF REPORT

Goldman reported this is a request for Site Review approval to enclose the pavilion space. The applicant has provided some elevations that show what the enclosure will look like. The Historic Commission reviewed the proposal and made the recommendation that any modification to the plan be submitted to them prior to issuance of a building permit. This has been added as a Condition. The proposed alteration to the existing building should have no discernible impact to the use of the facility. The enclosure of the space does not alter the parking requirements as set forth in PA99-101. Again, the installation of the bike parking needs to be completed and painting of the pedestrian crossings.

The proposed enclosure came as two alternatives to Staff. One is galvanized metal and the other option is CMU block with a sand slurry concrete finish on the exterior. The applicant, staff, and Historic Commission agree that the CMU block would be their choice. On the original proposal, they showed no openings on the A Street side. The Detailed Site Review Standards require a building within 30 feet of a public right-of-way have 20 percent of that side in openings, whether windows or doors. This application will take a relatively minor adjustment to meet the standard.

Staff is recommending approval of the application with the seven attached conditions.

Swales would like the Historic Commission to have some kind of final review of the color rendering. Goldman added Condition 8 that the color rendering shall be reviewed and approved by the Historic Commission prior to issuance of a building permit.

PUBLIC HEARING

Sandler took offense from Swales because the Historic Commission reviewed their application and were pleased with what Sandler presented. He explained every panel will be glass. One door on the main street will be functional. The other door will be functional, but it will be closed in order for sound protection. The ADA parking will be next to the door leading to the parking area. They will add enough glass to meet the 20 percent required.

Kistler said if there are colors that are allowed in the City, he doesn't know if there is anyone on the Historic Commission trained in color selection any more than the general public. He is a little uncomfortable giving them that type of purview.

Goldman said the requirement in the Detailed Site Review Zone within the Historic District, is that no bright or neon colors be used exclusively to draw attention to the building.

Kistler would be more comfortable with Staff approving. The Condition could be worded that the colors be reviewed by the Historic Commission and approved by the Staff Advisor.

Rebuttal

Sandler agrees with Kistler. He would like to have the Historic Commission's input and then reviewed by Staff.

COMMISSIONERS' DISCUSSION AND MOTION

Gardiner took a straw vote on Kistler's suggested amendment that the Historic Commission would review but be approved by Staff. Briggs agreed, but pointed out that no one on Staff has been trained in color analysis either. Everyone favored the change. Condition 8 to read, "That the color rendering will be reviewed by the Historic Commission and approved by the Staff Advisor prior to issuance of a building permit."

Swales moved to approve PA2002-115 with the attached eight Conditions. Morris seconded the motion and it carried unanimously.

It was moved, seconded and approved to extend the meeting to 10:30 p.m.

PLANNING ACTION 2002-106

REQUEST FOR SITE REVIEW PERMIT TO CONSTRUCT A FOUR-UNIT APARTMENT/CONDOMINIUM COMPLEX. A VARIANCE IS REQUESTED TO REDUCE THE FRONT YARD SETBACK FROM 20 TO 10 FEET AND REDUCE THE DISTANCE BETWEEN BUILDINGS FROM 12 TO 8 FEET. A TREE REMOVAL PERMIT IS REQUESTED TO REMOVE THE TWO TREES ON THE SITE.

916 EAST MAIN STREET

APPLICANT: RON DELUCA

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

STAFF REPORT

Harris said this application has been administratively approved and subsequently called up by three neighboring property owners. The applicant is proposing to construct three structures. All four units will be two-bedroom and initially will be used as rental units. They will be built as condominiums and surveyed under condominium ownership so that potential change is available in the future, should he decide to do that.

The access to the site from East Main is Blaine. There is a public alley on the west side of the site, providing vehicular access to the site. The base density is 3.02 units. The applicant is requesting a 35 percent density bonus, 25 percent through the affordable housing density bonus and ten percent is through conservation housing, bringing them up to four units. One unit will be affordable under the City's affordable housing program.

The applicant is providing 15 percent usable yard area, including decks, yards, or patios. There are seven off-street parking spaces, as required. Six sheltered bike parking spaces will be provided.

The applicant is requesting a variance for the front yard setback. They are providing 15 feet to the face of the buildings on each of the front buildings and ten feet to the porch on each structure. There is a provision of the ordinance that allows, no matter where a property is, to look at the adjacent properties on each side of the property and look at the setbacks that are used on the adjacent properties and average those. This way, the historic streetscape can stay the same. In the past, Staff has interpreted this section of the ordinance that both front and side yard can be used. The City Attorney agrees with that interpretation and also said it could be upheld, if challenged. Technically, the variance isn't necessary for the front yard setback. Because the average to the west is eight feet, according to the ordinance they could build the structures, as proposed on the site plan.

The applicant is asking a variance for the special yard which is the distance between the two front buildings. Eight feet is shown from the sides of the buildings from side to side. Staff believes they meet the criteria. When Staff looked at the neighborhood using the aerial photographs and maps, the side yard setbacks range from four to 26 feet and the average is 11 feet. It is Staff's opinion that it would be unusual to require that large a setback when the historic development pattern in the neighborhood is a smaller setback. The benefit is ending up with detached structures that are more compatible with the type of historic homes seen in the neighborhood, not just in setback but in size and scale.

Harris reported there are two trees on the property. The Tree Commission reviewed and approved removal of both trees. A report has been submitted by an arborist stating the English walnut has root rot and is losing branches. Since it is in close proximity to the sidewalk, there are concerns about the tree being a public safety hazard. Staff believes the incense cedar meets the criteria for the removal of a non-hazard tree. The Site Design and Use Standard requires usable yard space. If the tree remained, it would interfere with the usable yard space of either units 2 and 3 or the back unit and they would have to work around the tree. If the tree were worked around, it could end up one larger structure. There would not be as much usable open space to the rear of each unit. The second criteria is that is won't negatively impact erosion, soil stability, flow of surface waters, and that there aren't any drainages or creeks on the property. The property is relatively flat. The tree is isolated. Staff does not see an issue in removal. The third criteria discusses the negative impact on tree densities within 200 feet of the subject property and species diversity. There appears to be evergreen trees throughout the neighborhood. This is a relatively young tree and doesn't seem like it will effect the canopy and density of trees in the neighborhood. Finally, mitigation is required. Condition 6 has been added and the applicant has agreed to replace the cedar with an evergreen tree.

Harris showed the original design submitted. The Historic Commission had concerns about the design meeting the Historic District design standard of bulk, mass and scale of buildings. They wanted to lessen the impact toward the front of the property by making the mass and scale more subdued. Harris showed the revised elevation. It is lowered two feet and they hipped the roof as suggested by the Historic Commission.

Staff is recommending approval with the ten attached Conditions. A minor change to Condition 6 is to delete " ...of 1 1/2 inch caliper".

Briggs wondered if the setback is 15 or 16 feet. The application uses both. Harris said to clarify that with the applicant. Her understanding it is 15 feet.

PUBLIC HEARING

TOM GIORDANO, 2635 Takelma Way, stated he has Laurie Sager with him who participated in the landscape design.

Giordano said there is a great preponderance of benefit of this project versus some of the potential costs. The primary benefit is the affordable housing unit. It is within walking distance to the downtown. Unit 1 will be the affordable unit. The second benefit is the cottage design. The cottage concept works in the Historic District. They are modest in size. Landscape is intermingled with the building envelope and appropriate to the district. They are providing almost 40 percent landscaping.

Giordano believes Staff has adequately discussed the front yard setback. He believes the distance between buildings was meant more for large scale developments, not for individual cottages. There is a lot of historic precedence for the distance of eight feet. Some projects he has worked on are less than six feet (two-story houses in single family residentially zoned property).

Swales said it seems that most of the vegetation is being scraped off. Sager said the cedar is in a place where the density is being minimized if they left the cedar in place. That tree can be mitigated with other trees. In that site, appropriately, a different tree variety would serve the residents better.

Amarotico moved to extend the meeting to 11 p.m. Briggs seconded the motion and it was approved

Briggs asked Giordano about the suggestion by a neighbor to put the taller buildings along the back. It would look more compatible with the rest of the block. Giordano believes it will step down from the blue building on the corner which is a bulky building. He looked at putting the two-story in the rear. One reason he did not is because of the setback.

Briggs likes what he did with the roofline. Is the setback 15 feet or 16 feet? Giordano said it is both. It depends on the corner.

Giordano said the porch is six feet deep.

Swales said with regard to the affordable unit, would the applicant be willing to have the house remain in the affordable program for a long period of time? Molnar said they probably cannot get out of the affordable program for 20 years and it binds subsequent owners.

JERRY QUAST, 431Parkside, submitted some information. His concerns include traffic, congestion, safety, and parking. These are very unique and unusual circumstances in this area. There are apartments and a business surrounding this area. There is a five-unit apartment complex to the west that has no off-street parking. Quast owns the coffeehouse to the north. He also owns a rental across the street (8th and E. Main). He believes the proposed development will compound the problems he mentioned. Dewey Street is already overloaded because the apartment complex that surrounds the area doesn't have enough parking and the overflow ends up on Dewey or the alley. The traffic on the alley will increase with this development. There are already three to six cars parked on the proposed lot.

He would recommend that the applicant be allowed to have his ten foot setback, allow the variance between buildings of eight feet, and allow for removal of the two trees, if the applicant keeps everything the same about the project, including the six parking spaces and one handicapped space. Everything stays the same except allow for the allowable density of three units for this property, with one being affordable.

LAURA PERLOFF, 164 Fifth Street, said her concerns have been expressed by Quast concerning , parking, congestion, and granting variances. Perloff has appeared before the Planning Commission before and both times the issues were related to parking. Both times, the variances were granted and she has lived with experience of these decisions that ignore the fact that there are more cars, congestion and a lack of parking. She believes the Commission needs to take a long view. Perloff does not agree that the setback should be governed by averaging the mistakes of the past.

JOAN LANGLEY, 71 Dewey Street, wants to add her voice to those in opposition to the variances requested on the alley between Dewey and Alida. She feels there is a very delicate balance in her neighborhood between multi-family and single family homes. If the proposal must happen, she would urge the Commission not to allow for the variances requested. By allowing another multi-family unit close to the street, two buildings smack up against each other without adequate parking would adversely effect the livability of the neighborhood. There is a wonderful example of harmonious land between single family and multi-family property on Allison. The apartment building has plenty of parking on a fully paved and maintained alley that we do not have. There is ample lawn and plenty of mature trees so that anyone would be happy to live there. Langley believes we need to strive for that type of livability as a model. Nearly a dozen children live on Dewey Street, half under five years old. There are a number of grandchildren who regularly visit grandparents on Dewey. A large number of college students live in the apartment complexes on Alida and Morton. There is a speeding problem down her block. The street (one block) is lined with cars everyday.

MARK TUESKOV, 72 Dewey Street, talked about the adverse impacts of the project. When he looks at the figures of buildings eight feet apart and ten foot setback from the street and five feet from the alley, that is staggering in terms of crowding.

When is an alley an alley and when is an alley a road? The alley is not paved. His backyard fronts the alley and they are perpetually covered with dust with people speeding down the alley. The alley is narrow. Cars parked in the alley currently jut out into the alley. It would seem that fire equipment access would be a problem. In the long view, he does not see the buildings set close to the street as being compatible with the neighborhood.

PETER COTTON, 76 Dewey Street, said his property backs onto the alley. He read a letter and submitted it for the record from Michael Ganio who was not able to be here. Ganio expressed concern about the impact to the street and scale of the project. He built a model and superimposed pictures. Cotton believes there is still a major concern among the neighborhood about the mass of the proposed building. Seven other people in the neighborhood asked Cotton to present their letters of concern. He submitted those letters for the record. He repeated the concerns about the impact of the development to the quality of the neighborhood, primarily around parking and congestion that will be created. They are also concerned about the density of development.

Gardiner asked if the applicant agreed to continue the hearing. Giordano said the applicant agreed to continue until November 12, 2002. It will be the first item on the agenda. The public testimony period will remain open and only new testimony will be heard.

PLANNING ACTION 2002-117

REQUEST FOR A SITE REVIEW PERMIT FOR THE CONSTRUCTION OF A THREE-STORY, 12,280 SQUARE FOOT MIXED-USE BUILDING.

180 LITHIA WAY (GENKAI RESTAURANT BUILDING)

APPLICANT: EVAN ARCHERD AND HAL DRESNER

This item will be heard at next month's meeting.

OTHER

McLaughlin noted two ordinance amendments will be brought to the Commission next month regarding theater in E-1 and floor area ratio discussion.

The Study Session is scheduled for October 22, 2002. The subject is maximum house size in the Historic District.

ADJOURNMENT – The meeting was adjourned at 11:00 p.m.

 

 

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