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The approved residence on Winburn Way: Questions and Answers

The recent announcement of plans for construction of a single-family residence on the property located at 85 Winburn Way has prompted some objections and suggestions from Ashland citizens.  The information below is intended to provide legal and factual background in response to questions citizens have raised.
 
First, some history:
Uses.  In 1896, the Ashland Creamery was established on this site and remained in operation until 1949. In 1957 the land (along with two other lots) was donated to the City of Ashland. The property was sold to a private party in 1958 and changed hands many time in the next several years. Through most of these sales, the site continued to operate as an ice cream parlor/small café. In 1983, the business, then known as the Creek View Café, was given approval for additional outdoor seating. In 1991, the café, then known as the Lithia Park Café, was given approval to construct an enclosure of the patio.
Zoning.  The parcel is zoned R-1 and it’s believed it has been zoned R-1 (single-family residential) for as long as Ashland has had a zoning ordinance.  The commercial uses that had previously been on the property were “non-conforming uses” operating under a conditional use permit. 
 
Has the Ashland Planning Commission approved construction of a private residence in Lithia Park?
The property in question is not in Lithia Park.  It is a privately owned parcel across the street from Lithia Park.
 
Could the Planning Commission have prohibited construction of a house on the property under existing R-1 zoning?
No.  A house on that property, which is in an R-1 zone, is an outright “permitted use.”  The City can review and approve certain aspects of the use of the property – in this case, a plan to cut into the hillside -- but cannot prevent a permitted use from being built on a property that is zoned for that use.  The Tree Commission and Planning Commission also reviewed and approved a plan to remove 18 existing trees.  Of those 18, eight are large enough to require a tree removal permit and will be replaced with mature trees, including maples, pines and gingkos. 
 
Why didn’t the City long ago change the zoning to public use or commercial?
Only in extremely rare, unique circumstances can a city legally justify “spot zoning;” the practice of imposing one zone on a single isolated parcel while the parcels that surround it are subject to a different zoning designation.  Note that all of the property on Granite Street abutting the property on Winburn Way is zoned residential and Lithia Park itself is zoned residential.  A strong legal argument can be made that the appropriate zoning of the Winburn Way properties is residential. 
 
Ashland’s zoning code does not contain and never has contained a “public facilities” or “public use” zone.  Had the parcel been re-zoned commercial, permitted uses would have included such things as a convenience store, a fast-food outlet, a bar or nightclub.
 
The Planning Commission and Council considered the zoning of the properties along that portion of Winburn Way on numerous occasions beginning in the 1980s.  It was generally determined that the City retains greater controls on commercial activities on the property (e.g., building size, parking, signage, hours of operation, etc.) by retaining the residential zoning and requiring a commercial activity to obtain a conditional use permit. 
 
In 2011, the City Council did approve a zone change on the property to C-1-D (downtown commercial) in order to allow construction of a 10,000 square foot restaurant on the property, but adopted a number of conditions that the property owner was unwilling to accept and the application was withdrawn.  As a result, the zone change was never finalized and the zoning remained R-1.  This zone change was considered by the Planning Commission and City Council at the following meetings:
November 9, 2010 – Planning Commission meeting (Packet) (Minutes)
December 14, 2010 – Planning Commission meeting (Packet) (Minutes)
February 15, 2011 – City Council meeting (Packet) (Minutes)
March 1, 2011 – City Council meeting (Minutes)
May 3, 2011 – City Council meeting (Packet) (Minutes)
May 4, 2011 – City Council meeting (Minutes)
 
In a joint session with the Planning Commission on January 28, 2014, the City Council urged the Planning Commission to take on consideration of the appropriate zoning of the Winburn Way corridor. This action was bundled with the Downtown Parking and Traffic Circulation Plan, which had not been completed when the parcel was submitted for development as a single family home. 
 
Was the proposal for a residence on Winburn Way reviewed in public?
The application (for a hillside permit) was reviewed in multiple public meetings.  On November 22, 2015, the application was submitted and was subsequently reviewed by the Historic Commission, the Tree Commission and the Planning Commission.  Even though Historic Commission review is not required for this type of request, on December 2, 2015, the Historic Commission did review the plan, concluding as follows: “The Commission, as a whole, feels this is an appropriate project for the area and will improve it greatly.”
 
As there are tree removal permits involved in this request, the Tree Commission reviewed and approved the project on December 3, 2015.
 
The Planning Commission held two publicly noticed open meetings regarding the proposal. The first was on December 8, 2015, where the project was approved, and the second, where the findings were adopted, occurred on January 26, 2016.
 
Why didn’t the City or the Parks Commission purchase the property when it was up for sale?
The original asking price for the property was simply too high to be considered seriously. What’s more, much of the lot is unbuildable and the remainder of the lot does not serve any clearly identified public purpose that would have made it worth the asking price. 

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