BEFORE THE CITY COUNCIL
OF THE CITY OF ASHLAND
January 28, 2004

In the Matter of Planning Action #2003-127,	)
Request for Land Partition and Site Review	)
to Construct a Multi-floor, Mixed-use Building	)
with Underground Parking upon the Area	)
Occupied by the Existing Ashland Springs	)	Final Decision
Hotel Surface Parking Area 212 E. Main	)
Street. An Exception Is Requested to City	)
Downtown Design Standards to Allow Recessed	)
Balconies on Street Facing Elevations {V1-b-(3)}.	)
APPLICANT: Ed & Tanya Bemis

The appeal. This matter came before the council on appeal from a decision by the planning commission. The planning commission approved the application to construct a multi-floor, mixed-use (condominium and commercial) building and underground parking upon the area occupied by the existing Ashland Springs Hotel surface parking area at 212 E. Main Street.

Scope of review. We review the appeal de novo. Ashland Land Use Ordinance (ALUO) § 18.108.110.A.4. The record of the decision of the planning commission consisted of 246 pages and this record as well as other emails and documents submitted by interested citizens, parties and city staff (numbered as pages 247 through 334) were distributed to the council on January 10, 2004, for its consideration at the hearing on January 20, 2004. On Monday, January 12th, the planning commission record and the additional documents were distributed to the applicants and the appellants.

Subsequent to this distribution, additional emails and letters were received by the city as well as additional information from the appellants. (At the hearing before the council four of the five appellants withdrew as appellants leaving one appellant, Bill Street.) These subsequent emails and letters, numbered A1-A30, and the additional information from the appellants, numbered B1-B79, were distributed to the parties and the council on January 16, 2004.

At the hearing on January 20, 2004, additional documents were placed before the council for its consideration with a cover sheet entitled "Additional public input received from January 16 (after council packets prepared) until January 20 (4:00 p.m.) Regarding Appeal of Planning Action 2003-17." For the continued portion of the hearing on January 22, 2004, documents submitted after the January 20, 2004, hearing presented to the council were received by the council with a cover letter labeled "Additional public input received from January 20 (after council meeting) until January 22 (4:30 p.m.) regarding Appeal of Planning Action 2003-17." Various other documents were introduced at the hearing and were marked as exhibits beginning with the number
"CC-1."

All of the above-described documents were received by the council and were considered for this proceeding.

Relevant Substantive Approval Criteria. The relevant substantive approval criteria as set out before the planning commission and the notices for this proceeding adequately describe the approval criteria that must be met by the applicants. For the purpose of our decision, however, we will set forth and discuss only one of the criterion the applicants failed to meet. The applicants must establish that the application meets the limitation of gross square footage as contained in the Detail Site Review Zone and the Site Design Standards:

ALUO § 18.72.050 Detail Site Review Zone.

A. The Detail Site Review Zone is that area defined in the Site Design Standards adopted pursuant to Section 18.72.080.

B. Any development in the Detail Site Review Zone as defined in the Site Review Standards adopted pursuant to this chapter, which exceeds 10,000 square feet or is longer than 100 feet in length or width, shall be reviewed according to the Type 2 procedure.

C. No new buildings or contiguous groups of buildings in the Detail Site Review Zone shall exceed a gross square footage of 45,000 square feet or a combined contiguous building length of 300 feet. Any building or contiguous group of buildings which exceed these limitations, which were in existence in 1992, may expand up to 15% in area or length beyond their 1992 area or length. Neither the gross square footage or combined contiguous building length as set forth in this section shall be subject to any variance authorized in the Land Use Ordinance. (Emphasis added.)

Site Design Standards § II-C-3a) Orientation and Scale

1. Developments shall divide large building masses into heights and sizes that relate to human scale by incorporating changes in building mass or direction, sheltering roofs, a distinct pattern of divisions on surfaces, windows, trees, and small scale lighting.

2. No new buildings or contiguous groups of buildings shall exceed a gross square footage of 45,000 square feet or a combined contiguous building length of 300 feet. Any building or contiguous group of buildings which exceed these limitations, and which were in existence in 1992, may expand up to 15% in area or length beyond their 1992 area or length. (Emphasis added.)

3. Buildings not connected by a common wall shall be separated by a distance equal to the height of the tallest building. If buildings are more than 240 feet in length, the separation shall be 60 feet.

4. All on-site circulation systems shall incorporate a streetscape which includes curbs, sidewalks, pedestrian scale light standards, and street trees.

We find that this project is situated in the"North Main Street, Historic District, and Oak Street" Detail Site Review zone and is therefor subject to ALUO § 18.72.050.

The project is likewise subject to the above-quoted site design standard since that standard is imposed on large scale projects pursuant to Site Design Standard II-C-3:

Developments (1) involving a gross floor area in excess of 10,000 square feet or a building frontage in excess of 100 feet in length, (2) located within the Detail Site review Zone, shall, in addition to complying with the standards for Basic and Detail Site Review, shall conform to (site design standard II-C-3a)2)).

Findings.

1. We find that the project has a total gross floor area of 81,212 square feet and is therefor subject to the large scale project site design standards set forth in section II-C-3. Of this total gross floor area, 23,245 square feet is designated by the applicants as a basement area leaving 57,967 square feet of gross floor area above-ground. Of the above-ground area, 23,671 square feet is designated for above-ground parking, leaving a total gross floor area above ground designated for commercial and residential areas. The project has a building footprint of approximately 19,000 square feet. The applicant produced no evidence to show that the size of the building is within the limitation as we interpret it.

2. The planning commission approved this application because it found that the project did not exceed the maximum square footage allowed by the above-quoted standards. The commission applied an interpretation of a previous city council that 45,000 gross square footage was to be interpreted as meaning the footprint of a proposed building not the gross floor area. We disagree with that interpretation and find that it is wrong.

3. We find that the applicants have failed to meet the limitation 45,000 gross square footage feet imposed by ALUO § 18.72.050.C and Site Design Standard § II-C-3a)2) because we determine that the gross square footage of the proposed project is 81,212 and thus exceeds the limitations imposed by these standards by over 36,000 square feet.

4. The interpretation used by the planning commission was made in the year 2000 by the then sitting city council. The council approved an application by the Oregon Shakespeare Festival (OSF) in planning action #2000-074 by interpreting these standards as follows:

"The City Council does not interpret "gross square footage of 45,000 square feet" to mean gross floor area square footage. This quoted phrase is to be interpreted as meaning 45,000 square foot footprint. It is to be distinguished from those provisions of the land use ordinance that specifically refer to gross floor area such as in section II-C-3 of the Site Design and Use Standards ("Developments (1) involving a gross floor area in excess of 10,000 square feet . . ." (Emphasis added.) The City Council finds that the parking structure does not exceed a footprint of 45,000 square feet. Even if the limitation were to be interpreted to mean "gross floor area" the parking structure does not exceed the maximum allowed. During the City Council public hearing, Ashland Planning Director John McLaughlin testified that his staff had carefully computed the gross floor area square footage of the building and found it to be less than 45,000 gross floor area square feet. Mr. McLaughlin attributed the deviation to measurements taken by opponents from the exterior limits of the building rather than the interior limits. He further testified that the City always computes building gross floor area square footage based upon the interior size of a building and emphasized that even without subtracting the planter areas along Hargadine Street, that the building floors were less than 45,000 square feet. The City Council accepts and adopts the findings of its Planning Director and concludes that the parking structure does not violate the provisions of either ALUO 18.72.050(C) or ASDUS II-C-3-a-2."

5. Our extensive review of the standards involved in that decision, which we determine are the same standards involved in this proceeding, lead us to a different conclusion and interpretation. First, we believe that such an interpretation was unnecessary in the OSF decision. The structure involved did not have a gross floor area in excess of 45,000 square feet. Here, there is no question the gross floor area of the structure exceeds 45,000 square feet. We interpret this provision to mean 45,000 gross floor area square footage and includes all floors within the structure, whether underground, in a basement, designated for parking or otherwise. As noted above, we find that the gross square footage of the proposed structure exceeds 81,000 square feet.

6. We do not arrive at this conclusion capriciously or arbitrarily. The 45,000 square footage limitation was adopted in 1992 for important reasons and after a lengthy public process. This provision was not interpreted by the council until the OSF project in the year 2000. For that project the footprint interpretation was first applied and then shortly thereafter in 2001, it was last applied for the YMCA project. After the YMCA project, the interpretation has prompted controversy and has been the subject of many public hearings, meetings and discussions before the planning commission and this council.

7. These public hearings began in August 2001 when the planning commission conducted a hearing regarding the interpretation. Then followed a hearing before the council in September 2001 plus several public discussions by the council in 2002, culminating in a joint study session with the council and planning commission in June 2002. In addition, the planning commission held two subsequent study sessions and a public hearing in early 2003 where the commission recommended that the council not interpret the ordinance as referring to footprint. Following the commission public hearing this council held a study session and indicated that the limitation should be interpreted to mean gross floor area of all spaces.At that time, we voiced support of the planning commission recommendation for a limitation of 45,000 square foot gross floor area.

8. This extensive public process occurred completely outside the quasi-judicial process associated with the application being considered in this appeal. The applicants were well aware of the public process as at least one of them appeared before us to comment on the proposed ordinance amendments and one of the principal architects in the firm representing the applicants serves on the planning commission. In addition, the representative of the owner of the property subject to the application, Doug Neuman, appeared before the council in the May 2003 study session to comment on the matter.

9. Even within this quasi-judicial process, applicants have been given notice and an opportunity to comment on a possible reinterpretation. Applicants were advised a week prior to the hearing of the city attorney's opinion describing the circumstances by which the council had the authority to reinterpret the OSF opinion. Applicants' had an opportunity to respond and did respond to that opinion, through their attorney, on the day of the hearing. Subsequently and prior to the applicants' rebuttal, applicants received an additional opinion from the city attorney's office regarding this issue. Applicants' attorney responded to these opinions during applicants' rebuttal.

10. We acknowledge that the standards in effect at the time of the filing of the application are the standards to be applied to this application. ORS 227.178(3). The application was filed on September 12, 2003, and deemed complete on October 3, 2003. While the council adopted amendments (see footnote 1) to ALUO § 18.72.050 and the site design review standards in § II-C-3)a on September 16, 2003, with an effective date October 15, 2003, the standards to be applied to this application are the standards adopted in 1992. The provisions of ORS 227.178(3) do not prohibit us from reinterpreting the meaning of the applicable standards.

11. This is not a case of whether the 1992 version of ALUO § 18.72.050.C or its identical site design standard is the applicable standard. These standards were applicable to the OSF proceeding and are applicable to this proceeding.

12. The question before us is what the application of those provisions mean to this project. We think the circumstances involving the OSF interpretation and the significant public process after that interpretation, involving both the planning commission and this council, allow us to acknowledge that this council's interpretation of those standards was effectively made as of May 2003. As noted above, we voiced our support, at a study session in May, of the planning commission recommendation that buildings should not exceed a gross floor area of 45,000 square feet.

13. Even if it can be argued that May 2003 was not an interpretation by this council, we feel we have the authority to appropriately change that interpretation in the course of this proceeding.

14. Finally, even if the applicants were to assert that this interpretation was unanticipated, there is no evidence that they could produce to show that the size of the building is within the limitation as we interpret it.

Ultimate Conclusions and Decision. We find that the applicants' project exceeds the limitation of 45,000 gross square footage imposed by ALUO § 18.72.050.C and Site Design Standard § II-C-3a)2) because we determine that the gross square footage of the proposed project is 81,212 and thus exceeds the limitations imposed by these standards by over 36,000 square feet. The application is denied.

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Footnote 1

ALUO § 18.72.050.C.2.  Inside the Downtown Design Standards Zone, new buildings or expansions of existing buildings shall not exceed a building footprint area of 45,000 sq. ft. or a gross floor area.  For the purpose of this section, basement means any floor level below the first story in a building.  First story shall have the same meaning as provided in the building code.

Site Design Standards § II-C3a)2)

*****

Inside the Downtown Design Standards Zone, new buildings or expansions of existing buildings shall not exceed a building footprint area of 45,000 sq. ft. or a gross floor area of 45,000 sq ft., including roof top parking, with the following exception:  Automobile parking areas located within the building footprint and in the basement shall not count toward the total gross floor area.  For the purpose of this section, basement means any floor below the first story in a building.  First story shall have the same meaning as provided in the building code.

Dated January 28, 2004.

Alan DeBoer
Mayor
City of Ashland