| Synopsis: |
On September 2, 2003, the applicants filed their request
for the above referenced Planning Action. On October 10th, 2003, the application
was deemed complete and administratively approved by staff. A notice was
sent to neighbors within 100' of the property noting staff's decision and
the right to request a public hearing within 10 days. On October 20th, 2003,
three letters (one later rescinded) were received requesting a public hearing.
On October 22, 2003, a notice was sent to neighbors within 200' of the property
stating there would be a public hearing in front of the Ashland Historic
Commission on November 5th, 2003; Ashland Tree Commission November 6th, 2003;
and the Ashland Planning Commission Review Board on November 12th, 2003.
At the Historic Commission meeting on November 5th, 2003, the Commissions
accepted public testimony and evidence. The Commission moved to deny the
application "based on the purview of the commission set in the city charter,
reflecting the opinion that the structure does not fit the historic district
by its mass, scale, and partitioning of the site. Discussion: Members
clarified that they were not recommending denial based on the Physical and
Environment Constraints permit criteria. Krach suggested that this was
an honorable motion even though it amounted to tilting at windmills. He
recognized that the building was a beautiful design, but added that it was
just proposed for the wrong place". Voice vote: Krach, Krippaehne, Whitford,
Leighton, and Saladoff, YES. Skibby, NO. Motion passed 5-1.
At the Tree Commission meeting on November 6th, 2003, the Commissions accepted
public testimony and evidence. The Commission recommended the following
conditions: "1) Mitigation for loss of trees on the site will be as proposed
in the application plus an additional 1 for 1 'onsite', to be planted within
50 feet of the property line and/or adjacent to Glenview. This is in addition
to the proposed landscape plan. 2) It is essential that the remaining madrones
be protected. The tree protection plan as presented by the Landscape Architect
should be fully implemented to protect these trees. And, in addition, a
structural footing should be designed by the Architect in conjunction with
the Landscape Architect that will ensure he utmost protection of the rootzone.
3) Tree protection signs should be sued for this project".
At the Planning Commission's Review Board Meeting on November 12th, 2003,
the Commissions accepted public testimony and evidence. The Review Board
agreed to leave the record open for an additional seven days and for a second
seven-day term for applicant's rebuttal. The meeting was continued to the
December 9th Review Board meeting. On December 9th, 2003, after reviewing
the additional information and rebuttal information, the Review Board
unanimously moved to approve the application with the attached nine
conditions. In their discussion, the Review Board declared the arguments
presented by the appellants were not based upon the applicable criteria for
a Physical and Environmental Constraints Permit. After two 30-day extension
requests by the applicants, the findings supporting the decision were adopted
by the Review Board on March 9th, 2004.
On March 10th, 2004, a letter was sent to applicants, people who testified
and people who submitted letters informing them of the Review Boards' decision.
On March 17th, 2004, an appeal was filed by Colin Swales, Brian Holley and
Bill Street.
The appeal form states the following as grounds for the appeal:
1) First Specific ground for reversal
Appellants contend that Applicant's and Staff's narrow interpretation of
the Purpose and Intent as stated in ALUO 18.62.010 is inconsistent with the
City's Comprehensive Plan as it should be applied to the interpretation of
the approval criteria for Development on Hillside land.
(see Pages 15-19 Applicant's 'adopted' Findings of Fact and conclusions
of Law. Dated 3/9/04 and also Appellants' prior submittal in Record pages
20-68)
2) First Procedural Irregularity:
The Application was 'deemed complete' by City Staff on October 9th, 2003.
Contrary to Oregon State Law and the Public Notices sent to neighbors, the
Applicant's agent denied the City permission to exercise its statutory duty
to make copies of important portions of the application available to the
public until November 3rd, 2003. This substantially prejudiced the appellant's
rights to perform 'due diligence' prior to the Historic Commission meeting
and Hearings Board Public Hearings.
(see Page a54 Finds of Fact and Conclusions of Law. Dated 3/9/04 and
appellants' prior submittal of communication with the City on this matter
- Record pages 20-68)
3) Second Specific ground for reversal
Appellants contend that Applicant's own definition of surrounding impact
area is not supported by Ashland's Comprehensive Plan nor the discussion
and adoption of ALUO Ch 18.62 (see) LUBA 97-260 ROGUE VALLEY v ASHLAND
FO) but instead extends well beyond the merely 200 feet from the
boundaries of the property as they contend.
(see Pages 15 para F. Findings of Fact and Conclusions of Law. Dated
3/9/04 and Appellants' prior submittal Record 20-68)
Staffs Response to Appellants' Argument 1): It is staff's opinion
the applicable criteria for this application are clearly noted in 18.62.040
I., Approval and Permit Required - Criteria for Approval. In addition,
there are "clear and objective" development standards for Hillside Lands
noted in Chapter 18.62.080, Development Standards for Hillside Lands, the
applicant is required to meet. It is staff's and the Planning Commission
Review Board's opinion the applicants have met the Criteria for Approval
and the subject Development Standards. For additional explanation on this
argument, please refer to "OBJECTIONS DEEMED TO BE UNRELATED TO THE RELEVANT
SUBSTANTIVE APPROVAL CRITERIA" on Pgs. A61 - A63 of the Hearings Board's
Adopted Findings of Fact and Conclusions of Law.
Staffs Response to Appellants' Argument 2): Under Federal law the
owner of a Copyright has the exclusive right to reproduce or distribute
copyrighted work. Oregon's Public Records Law does not authorize the City
to violate Federal Copyright Law. Any person has the right to inspect any
Copyrighted materials the City may be in possession of, but the City cannot
copy or allow someone else to make copies. This is consistent with advice
staff have given in the past and it is based on an opinion of the Oregon
Attorney General contained in the AG's Public Records Manual at page A-1.
It should be made clear, the appellants' or any other citizen who requested
that copies be made were given the opportunity to inspect the plans during
regular office hours. It should also be made clear that when noticed, the
applicant's Architect did lift the Copyright restrictions and plans were
copied and made available to the public on November 3rd, 2003. As such, Staff
concurs with the applicants and Hearings Board that the rights of the appellants'
were not prejudiced due to the fact that the information was available to
the public at all times and that "copies" of the plans were made available
nine days before the Review Board's November 12th, 2003, Public Hearing with
an additional seven days left open by request of Appellant Colin Swales.
Staffs Response to Appellants' Argument 3): The Planning Commission's
Hearing's Board concluded the "surrounding impact area" is the same as the
200' public notice boundary (Pg. A-25 of the Hearings Board's Adopted Findings
of Fact and Conclusions of Law). Staff would also contend that developments
subject to a Physical & Environmental Constraint Permit are reviewed
based upon its impacts to "nearby areas" and the "surrounding area", as
specifically noted in Criteria #1 and #3 (ALU 18.62.040 I.). Furthermore,
the appellants' refer to a definition in the Conditional Use Permit section
of the Ashland Land Use Ordinance. The subject application is for a Physical
& Environmental Constraints Permit (P&E Permit) - not - a
Conditional Use Permit (See Colin Swales' Findings of Fact, Pg 20. (Received
11/19/03).
Lastly, Planning Actions for a Physical & Environmental Constraints Permit
to build a house on hillside lands are not only evaluated on its impact to
the adjacent neighbors, but are often reviewed for their impact on neighbors
outside the immediate neighborhood. One scenario of this is when there may
be a "storm water capacity issue" downstream and thereby staff would prohibit
development or at least require the applicant to make the necessary improvements
to provide adequate storm water capacity. |
