|Mayor Morrison read aloud the Public Hearing procedure for Land Use Hearings.
Public Hearing Open: 7:13 p.m.
Abstentions, Conflicts of Interest, Ex Parte Contact
Councilor Chapman and Hartzell reported site visits.
Senior Planner Maria Harris presented a detail map of the area, which indicated the location of the lot and structures on the property. She noted that the property and the surrounding area is zoned R-2 Multi-Family Residential, it is located in the Railroad Historic District, and explained that this application involves a garage structure located in the southeast corner of the property. Ms. Harris stated that the Hearings Board held a public hearing on February 14, 2006 and determined that the first approval criteria which states that unique or unusual circumstances are present had not been met and denied the variance request. The Hearings Board found that the non-conforming setback pattern on the alley was not unique to just that section of the alley and found that it was reflective of the entire Historic area. The Historic Commission also reviewed the application and felt that the unique or unusual circumstance criteria had not been met. In addition, the Historic Commission questioned the bulk and scale of the second story addition and felt that this was not compatible with the alleyway architecture. Staff's recommendation is to uphold the decision of the Hearings Board, and it was noted that this item is time sensitive with the 120-day time limitation ending on May 25, 2006.
It was clarified that the Applicant is requesting an additional 6-foot setback. Interim Community Development Director Bill Molnar commented on the process and why this request was brought before the Hearings Board. Ms. Harris provided an explanation of the Type I variance approvals listed in the Applicant's Summary and Appeal Narrative dated March 21, 2005.
Councilor Hartzell questioned whether the Council could place a restriction that the 90 sq. feet would never be enclosed with anything other than glass. Mr. Molnar stated that if the Council felt this was the only way the application would comply with the approval criteria then they could place such a condition.
Councilor Jackson noted that the Ashland Municipal Code states that the staff advisor clearly has the ability to decide to have a hearing on a Type I action.
Phillip Lang and Ruth Miller/758 B Street/Clarified that they are asking for a 6 ft. variance to the 20 ft. rear setback requirement for a 90 sq. ft. enclosure as part of an accessory unit at the back of their residential property. Mr. Lang commented on the procedural issues regarding this application and stated that: 1) Reduction up to 50% of the standard yard requirement can be approved administratively when it is reviewed under the Type I process and noted that they are asking for a 30% reduction, and 2) Such variances and far more extensive ones are routinely granted, yet staff exercised its discretionary right to schedule this application for a hearing by the Hearings Board. Mr. Lang questioned staff's justification for calling this up, commented on the seven Type I variance applications in 2005 that were all approved administratively, and expressed his concern that he was being treated unfairly. He commented on the three approval criteria and provided an explanation of why this application meets those requirements. He noted previous Council action regarding a project on East Main St. that supports his request, stated that the variance has no negative impact and would provide privacy for his neighbors backyard, stated that the request conforms to the Comprehensive Plan, and that the Railroad District presents many unique and unusual circumstances.
Mr. Lang concluded by stating that: 1) the variance request is minor and falls under the Type I variance, 2) the record shows that such variances are customarily granted administratively, 3) the Planning Department exercising its discretion in bringing this request to the Hearings Board is unusual and lacks specific justification, 4) the variance request meets the requirements of AMC based on a) the unique and unusual circumstances of the site and the adjoining alley neighbors, b) its conformity of the Comprehensive Plan and the zoning ordinances with no negative impact and a positive impact on the adjacent property, and c) based on the need for the variance is not willfully or purposefully self-imposed.
Councilor Amarotico arrived at 8:00 p.m. and stated he had no ex parte contact.
Mr. Lang stated that the Council had previously made a reasonable interpretation regarding side yards that he agrees with and is applicable in this situation. Council commented that Mr. Lang is referring to writing by the former City Attorney Paul Nolte and noted that this is not included in the record.
City Attorney Mike Franell clarified that the Applicant has made a reference to the previous City Attorney and that oral representation is now in the record. If Council wished to consider the opinion of the previous attorney, staff could provide the written opinion that has been referenced by Mr. Lang to the Council.
Mr. Lang commented again on the seven Type I variance requests that were approved administratively and expressed his concerns that this application was handled differently. He stated that staff has the discretion to call up applications, but it needs to be exercised fairly, and noted the derogatory remarks contained in a Memo prepared by the previous Assistant City Attorney.
Those Wishing to Provide Testimony (None)
Mr. Molnar commented on the application process and stated that there were a number of factors involved that led staff to determine it was best to discuss those issues with the appointed body. He noted the letter of opposition included in the record from Mr. Don Green and commented on the written comments from the Historic Commission, including their concern regarding the appropriateness of a two-story structure on the alley.
Comment was made questioning why the Historic Commission's comments were not included in the record. Mr. Molnar stated this is part of the pre-application process and is generally not included in the record.
City Attorney Mike Franell commented on the Applicant's concern with fairness and stated that the procedure code gives the staff advisor the discretion to move it up to the Hearings Board if they so choose. He stated that based on the issues raised regarding this request, the staff advisor felt it would be best to move it to the Hearings Board, and stated that there is no evidence that the Hearings Board did not give this request a fair hearing.
Ms. Harris clarified that this is an accessory unit, but not an accessory residential unit, as it does not have kitchen /cooking facilities. She stated that accessory buildings are generally an outright permitted use if they meet the setback and lot coverage criteria. The majority of these are handled through building permits and do not require any kind of planning approval. Ms. Harris explained that the structure in question was built in the early 1990's and is not a historic non-conforming structure. She added that what is on the ground now meets the setback requirements.
Mr. Franell commented on the Memo from the previous Assistant City Attorney and agreed that the personal slap contained in it was inappropriate. He stated that he has apologized to Mr. Lang, however he does agree with the legal analysis contained in that Memo.
Mr. Lang stated that it is unusual to ask for a rear yard variance and noted that this has the least impact. He stated that in the Historic District variability is encouraged and noted the Council's approval of a similar request on East Main St. He stated that he does not understand what was different with this application compared to the seven other Type I variances that were approved and stated that he did not receive the comments made by the Historic Commission.
Public Hearing Closed: 8:48 p.m.
Councilor Hartzell commented on the issue of precedence set by the East Main project and noted page 65 of the record, which reads, "The general exception provides that if there are dwellings on both abutting lots with yards less than the required depth, the yard need not exceed the average of the abutting lots". She stated that taking an average can allow for a gradual increase in the size of buildings and is not supportive of this idea. She also stated that the City should not apply the rule differently to one person when not too long ago it was applied to another project on East Main St. and felt that the opinion offered by the former City Attorney that was referred to by the Applicant should be included in the record.
Councilor Jackson stated that she was not going to base her decision on what was done with a different site-specific appeal and believes this is a setback question regarding a second story of which there are not any other non-conforming second stories on that alley. She noted the criteria and how the report explains why staff believes that the criteria has not been met and stated her preference is to uphold the denial.
Councilor Hartzell questioned the legal liability the Council has for applying an interpretation differently on one project than another with the same variance request. Mr. Franell explained that if the facts are exactly the same, then they should apply the same interpretation unless they explain why they are reinterpreting. If the facts are not exactly the same, the Council needs to make distinguishments as to why a prior interpretation may not be applicable to the existing variance request. Mr. Franell offered his opinion that the two requests are not exactly the same.
Councilor Chapman concurred with Councilor Jackson and stated he would recommend denying the request because it does not meet the unique or unusual circumstance criteria.
Councilor Silbiger questioned if any of the adjacent properties have a second story and it was noted that this information is listed on page 21 of the record. Ms. Harris clarified that 164 Sixth St. and 156 Sixth St. are two-story single-family residential structures and Mr. Franell stated that by definition, both of these residences would be considered abutting properties. Mr. Franell cited 18.68.110 which reads "If there are dwellings or accessory buildings on both abutting lots (even if separated by an alley or private way) with yards of less than the required depth for the district, the yard for the lot need not exceed the average yard of the abutting structures". He stated that there is an interpretation issue involved with section because it anticipates there being two abutting lots since it says both. In this instance, 758 B St. has four abutting lots: 724 B St., 762 B St., 164 Sixth St., and 156 Sixth St. Based on the staff report, two of those abutting properties have two-story structures that might not meet the code requirement for the required yard space.
Ms. Harris pointed out that this provision of the ordinance was not considered in the staff report or by the Hearings Board. She stated that historically this section has been applied to front yards as it is a front yard general exception and this variance request pertains to a rear yard. Ms. Harris explained that on the East Main decision there were two elements that concerned yards, one was a variance for internal side yards and the other was the front yard general exception and it was not a variance issue.
Mr. Franell suggested that if Council feels this is an issue, they could continue this decision to the next Council meeting which would allow staff time to research the record and provide an analysis to the Council for further consideration. He added that in order to submit the opinion by the previous City Attorney the hearing would need to be reopened.
It was clarified that this could be continued to the May 2, 2006 Council Meeting and still meet the 120-day deadline.
Councilor Hartzell/Hardesty m/s to continue discussion on this appeal to the May 2, 2006 Council Meeting for further legal clarification. DISCUSSION: Councilor Amarotico requested that he be allowed to abstain from voting as he was absent for most of the discussion on this hearing.
Councilor Hartzell/Jackson m/s to allow Councilor Amarotico to abstain. Voice Vote: all AYES. Motion passed.
Roll Call Vote: Councilor Hartzell, Hardesty, Silbiger, Chapman, YES. Councilor Jackson, NO. Motion passed 4-1.