MINUTES FOR THE CONTINUED MEETING
ASHLAND CITY COUNCIL
April 8, 2004 - 6:00 p.m.
Civic Center Council Chambers, 1175 E Main Street
Call to Order
Meeting was called to order at 6:03 p.m. in the Civic Center Council Chambers.
Councilor Laws, Hartzell, Jackson, Morrison, Hearn and Amarotico were present.
Mayor DeBoer had previously been awarded reclusal by the Council due to his relation to the applicant.
Continued Public Hearing-
1. Appeal of Planning Action 2003-118, a request for a Physical & Environmental Constraints Permit to construct a single family residential home on Hillside Lands within a Historic District. Applicant: Sidney and Karen DeBoer.
Ex parte contact:
Councilor Morrison noted a site visit. Councilor Hearn received additional emails which were also submitted to the rest of the council. Council Hartzell entered into the record a flyer from the DeBoer's that was received by a neighbor. She also received a call from Pete Hawes, 431 Courtney Street. Hartzell stated she does not believe that either of these contacts influenced her in anyway.
OPPOSED TO APPLICANT:
Colin Swales, 461 Alison, stated he was an appellant to the case. Mr. Swales presented a slide show indicating the tree canopy and the trees that have already removed, and stated this property can be seen from all over town. He explained a list of trees that have already been removed from the property and those that are scheduled to be removed. He noted some are in the public right of way. Mr. Swales explained the criteria for approval, and stated the applicant's attorney who spoke at the previous meeting failed to convey the 4th criteria which states that "The developer is in compliance with the requirements of the charts and all other applicable city ordinances and codes." Mr. Swales stated this is very important because not only does this project not comply with the Hillside Ordinance, but also the R1 zoning ordinance. Mr. Swales explained that during the Historic Commission meeting, Councilor Saladoff questioned the 2 1/2 story height and stated there was clearly a 3rd story of living space. Mr. Swales presented diagrams and definitions which disputed the height of the house stating it exceeds the 35' height maximum. He also spoke regarding the slope of the property, explaining the applicants have given various slopes and stated the average slope is 26 degrees, not 26% as shown on their drawings. Mr. Swales explained that a 26 degree slope converts to an actual slope of 49%. He also stated the staff permit was made before they had received the required topographical map.
Mr. Swales explained for Council the formula used to determine slope. He also spoke on how the applicants determined the slope from 1978 aerial topographic maps and measured the height of trees and tree stumps. Mr. Swales stated that they need to look at the slope of the buildable area, not the slope of the entire site. Mr. Swales also clarified for Council he believes the 25% slope measurement provided by the applicants refers to the average slope for the entire site. Mr. Swales explained that the Hillside Ordinance specifically states that you cannot build on the steep parts of the land in its guidelines (the steep parts being those in excess of 35%).
Mr. Swales clarified he his here because he is a neighbor to the property and also concerned about the Hillside Ordinance. He is not testifying on behalf of the Planning Commission.
Comment was made that Mr. Swales is familiar with projects due to his time spent on the Planning Commission. Mr. Swales stated the ordinance makes it pretty clear how to measure a slope and gives a conversion factor which states how to convert from a percentage slope to a degree slope.
When asked if he was able to measure the floor area, Mr. Swales clarified he determined his measurements from the same small plans that were provided to Council.
Mr. Swales provided a brief recap of the evidence and clarified where an applicant is allowed to build. He contends the applicants want to build on the steep part (unbuildable) section of their land.
IN OPPOSITION TO APPLICANT:
Regina Ayrs/199 Hillcrest/Spoke in opposition to the building of the large structure in her neighborhood. Ms. Ayrs stated that her quality of life is import and read into the record an email previously sent to the council. Email is included as part of the record.
George Kramer/386 North Laurel/Stated the initial hearing was heard without public testimony and that the applicant had time to submit two plans and manipulate the process. He also commented on the removal of trees and the previous destruction of the property. Mr. Kramer commented on the attorney hired by the applicant and quoted sections of the Hillside Ordinance from the Ashland Municipal Code. Mr. Kramer stated there are multiple interpretations made of the Ashland Municipal Code and that those interpretations were to the benefit of the applicant.
Jane Street/180 Mead Street/Submitted photo of Glenview Drive, which is the existing traffic lane and will provide the access to the proposed building. Ms. Street questioned whether the Council was aware that the city is giving up their right-of-way for this project and stated it will effect street trees and road conditions. She stated that the fence also encroaches the city right-of-way. Ms. Street noted that this has not been discussed with the city engineer. She also voiced concern with the traffic and noise that will be generated when functions are held at this residence. She requested that the residence be encouraged to rent a hotel rather than build one.
Alan Sasha Lithman/460 Sunshine Circle/Stated he was not speaking for the neighborhood but as a resident of the community. Mr. Lithman stated that simply because a property belongs to someone does not give them the divine right of kings. Gave example of second hand smoke. He stated our laws are running behind the curve of issues that are very critical right now, and read into the record an email previously sent to the council and is included as part of the record.
Malena Marvin/361 Idaho/Commented on how the average American uses 30 times the resources of someone who lives in the third world. Ms. Marvin stated the applicant's money and power does not guarantee them the opportunity to act out their fantasies on the land that we depend on for survival. Ms. Marvin urged the council to consider this in global terms.
Louis Legep/243 N Laurel/Commented on his awareness of the project and his involvement in the process and the decision of the Historic Commission. Mr. Legep stated the applicants are the minority rather than the individuals that are opposing the project, and commented on how the silent majority relies on the Council to be heard. Mr. Legep compared the proposed plan to the home of Microsoft owner Bill Gates and noted how deceptive the size of the building is. He stated he would have liked the money spent on this project be put into affordable housing.
Jim Criswell/580 Siskiyou Blvd./Read statement from Debbie Miller that was previously submitted into the record.
Pam Vavra/2800 Dead Indian Rd/Urged the Council to deny the permit for this construction project. Ms. Vavra commented on not being able to foresee future plans, which is why they develop plans like the Hillside Ordinance. She stated that it is clear in the Comprehensive Plan that the community has made a decision about what is important. Stated one of those values is the small town atmosphere. Ms. Vavra noted that part of the use of this single family home is similar to that of a convention center or training center. She also stated that the intended use clearly over reaches the normal use of a single-family dwelling. Ms. Vavra noted traffic impacts and asked the Council to consider what a future owner might use the building for, and asked the Council to look to the broader standards rather than the letter of the law.
Eric Navickas/711 Faith St/Unable to attend meeting and submitted statement that was read into the record.
Elizabeth Udall/548 C Street/Unable to attend meeting and submitted a statement into the record.
Bill Street/180 Mead/Entered into the record confirmation of the information Mr. Swales presented regarding the slope. Mr. Street made a presentation on the material submitted into the record, and stated Mr. Stone's findings were not discussed by the Hearings Board. Mr. Street noted the removal of trees, and stated that Mr. Stone added the language "of native trees" which was not in the original language. Mr. Street clarified the correct language refers to dead and dying vegetation, not native trees. Mr. Street noted ALUO 18.08.230 which states that a dwelling is defined as one or more rooms designed for occupancy by one family, and not having more than one kitchen or cooking facility. He explained the proposed house shows two kitchens and this makes the proposed home a two family dwelling which is not allowed in R1 zones. Mr. Street also referred to the application, which states the dwelling is 19 ft. from the property line when the requirement is 25 ft. Mr. Street stated the application should be denied.
Mr. McLaughlin clarified that Staff requested the applicants to provide slope maps that would establish the natural grade prior to the land being disturbed. Their indication was that the original slope was greater than 25% and therefore subject to the Hillside Ordinance. Mr. McLaughlin also clarified why there are different slope measurements explaining the one was the initial slope of the property and the other is the slope as it is today.
Mr. McLaughlin stated the plans seem to reflect an accurate representation of what exists on the site today, and this that it was mislabeled at 26%. McLaughlin clarified for the Council the ordinance was established to ensure that as development occurred on any parcel greater than 1/2 acre, a portion of that property would be required to stay in its natural condition. Mr. McLaughlin relayed the formula for determining what needs to be kept in its natural state. He also stated the purpose of the ordinance was to allow someone plenty of room to build a house, but limiting their ability to go in and excavate areas for larger flat spaces, terraces, etc. The reason being that the more natural state the property in is, the more stable it usually is. Mr. McLaughlin explained that the applicants have stated there is no natural state left, and the Planning Commission concurred.
Mr. McLaughlin cited the 4th criteria that was mentioned by the opponents and explained that the original adopted ordinance does not have this 4th criteria, but that it was inadvertently included with the staff report for amending the ordinance. McLaughlin also noted that the mention of two kitchens would come into play at the building permit stage and does not have to do with the Physical & Environmental Constraints Review. None the less, McLaughlin explained there is one kitchen for the use by the DeBoer's as the dwelling. There is an additional kitchen that is designed for entertaining, and is not designed to support a separate dwelling. He stated this is consistent with what many people have in the community. Mr. McLaughlin stated if someone wanted to argue this point it would need to be an item of a separate appeal, and is not part of the criteria the Council is reviewing tonight.
Mr. McLaughlin clarified for Council the Ordinance does not refer a natural or manipulated slope, it simply states slope. He explained that Staff believes that prior to the Hillside ordinance, the slope was legal for the applicants to go in and excavate the area that they did. By going in and re-grading this made it essentially an unbuildable part of the lot according to the new standards. Had the applicants known this, they would have left the area in its natural state to be built upon in the future. Staff feels the Hillside Ordinance speak towards regulating the natural part of the land and not the cutface that was done legally prior to the ordinance. Staff agreed that the original slope on the property was greater than 25%, however they did not determine that because the applicants made the cutslope they could not longer build in that area now.
Council noted the determination on which slope to use will set a precedent for possible future applications.
Mr. McLaughlin added that you are allowed to build a home on a single parcel regardless of the slope if it is an existing parcel, there are just stricter standards to adhere to.
Council discussed the rational for applying the new standards rendering a section unbuildable when it was legal to do so at the time of excavation.
Mr. McLaughlin clarified for Council that air photos have a percent error due to not being on the ground. When it is close, Staff encourages the applicants to hire a surveyor for confirmation, explaining a ground survey is more dependable.
Mr. McLaughlin clarified it is common practice for the applicants to provide the written findings, explaining that the burden of proof lies with the applicant. On controversial issues, they recommend that the applicants get professional guidance, since the findings are a key document during an appeal. Mr. McLaughlin stated these findings were reviewed by the Hearings Board before they adopted them.
McLaughlin also informed the Council that the applicants were up front with their intentions far in advance of the adoption of the new ordinance, and the Historic Commission reviewed this project well before the adoption of the current ordinance.
Council questioned the impact on surrounding areas and the encroachment issue. Mr. McLaughlin stated that although this home is large, there are no standards for noise, traffic, and things generated by a single family home. He stated this application would not be treated any differently because of its size. Should the application be approved, Public Works would look into the right-of-way issues to determine if there is an encroachment problem. Generally, if there is a substantial amount of improvements the right-of-way, Public Works will have the owners sign an agreement that recognizes that even though the property owners did the improvements, it does not mean they own the land. Mr. McLaughlin explained that should the City need the land in the future for street improvements, the owners cannot protest the improvements and it falls to them to ensure the future grades are met.
Councilor Laws noted you can find encroachments on right-of-ways throughout the City.
Mr. McLaughlin clarified for Council that Staff were the ones who noticed that the height exceeded the 35' limit and the applicants then adjusted their plans to comply. He added that applicants are allowed to manipulate their plans to conform to the standards.
Councilor Hartzell stated the visual character of the City is mentioned in the Hillside Ordinance. Mr. McLaughlin clarified the design standards specifically state "except those on land in a Historic District". McLaughlin further clarified that they do not have design standards for single-family homes in the Historic District that are mandatory. Mr. McLaughlin clarified that it was LUBA who was unsatisfied the with the original wording in the Design Standards and the language was changed to read "recommended" rather than "shall be".
Council commented on the setback issues mentioned by the opponents. Mr. McLaughlin explained the process for paving and sidewalks and stated that setbacks are measured from the property line. Mr. Knox stated he is not certain how the 19' measurement came about. He stated the requirement is 20', although there are exceptions for eaves. Mr. McLaughlin clarified the setback requirements are 10' per story. The second story could have a 20' setback and this project would just be an extension of that style.
Mr. Knox stated the removal of the trees was based on a wrong decision on his part, and explained that this was a staff error.
Craig Stone addressed the Council on behalf of the applicant, and spoke on the question raised regarding natural or artificial topography. Mr. Stone stated that in this case the applicants were criticized by opponents, where in fact all they did was construe the ordinance where they were required to do so. He added that there is no land use ordinance that has ever been written that does not require some form of interpretation. Mr. Stone stated that one of the ways to resolve an ambiguity is to look at the purpose statement. The Hillside Ordinance's purpose statement clearly states to protect the natural and topographic character. The ordinance was not for the purpose of preserving man-made features. Mr. Stone also addressed the opponent's question regarding the receipt date of the topographic map. Mr. Stone stated the map was submitted along with the application and turned up missing from the municipal files. Prior to the application going to Planning Commission, the applicants double-checked the file and noticed that someone had removed this piece of evidence. That is why the receipt date shows it was received 3 days prior to the hearing. Mr. Stone stated there is not enough time allowed for him to properly defend their position and asked for a continuance for the purpose of addressing each and every issue raised and would like to do this in writing. Mr. Stone asked that the record be left open for the purpose of them submitting additional evidence. In addition, to resolve the issues raised on the preservation of natural lands, Mr. Stone proposes a slight change in the original lot line adjustment to reduce the size of this property to less than 1/2 of an acre which would make the provision of natural area irrelevant. Mr. Stone provided a map of the proposed change in land partition.
Council discussed whether to grant the applicant's request for an extension.
Assistant City Attorney Mike Franell stated the statute provides that the applicant has the right to request an extension at the initial evidential hearing. Mr. Franell stated that because this is a de novo hearing there is some question as to whether this statute applies. He stated it is the opinion of the City Legal Department that it applies to the City as a body, and the right to request applies to the initial evidentiary hearing held in front of the Hearings Board. However, the Council has the latitude (if the applicants are willing to extend the120 day rule), to grant their request. Given the complexity of the issues raised tonight, this might be appropriate.
Mr. Franell explained that if Council does grant the request, they would recommend extending to date certain and the proposed date would be May 19th, 2004. That would allow the record to be left open to receive evidence for 7 days, there would be 7 days for review and submittal of written comments, 7 days for the applicants to rebut any of those written comments, and then it would allow the City to hold the decision hearing at their first regular council meeting in May. The Findings of Fact would then be adopted at the second regular council meeting in May. Notice would then me sent out on the 19th.
Council discussed their options.
Councilor Laws stated that he does not feel they should leave the record open and would like to complete the Public Hearing this evening. Councilors Jackson , Amarotico and Hearn agreed. Councilor Morrison agreed on the basis that overwhelming information may only confuse the situation.
Mr. Franell stated they could continue to leave the Public Hearing open if there are specific questions that they would like addressed, however by ordinance, the Public Testimony needs to be concluded by 9:30 p.m.
Mr. Stone stated that if it is the Council's inclination to not allow the continuance of the Public Hearing, he questioned if they would continue this proceeding to a different night and the applicants would grant a waiver to give them an opportunity to reflect on the testimony and evidence presented.
Mr. Franell clarified if Council granted the request; they would continue the hearing from tonight to another night in exchange for a waiver of the 120-day rule. At the hearing on the next night, any specific questions that Council has would be asked and they would continue that deliberation until they were satisfied that they had enough information to make a decision.
Kerry Kencairn, came forward and explained the reasons for removing and preserving trees on the DeBoer property. If was clarified the total number of trees they started with was 16, and there are now 8 remaining. Kencairn clarified there is a tree plan.
Mr. Stone explained that the applicants did approach the city prior to the removal of the initial trees and stated it was the City who made the mistake and informed the applicants the trees could be removed. Mr. Stone stated the applicants relied in good faith on the information provided to them by Staff.
Council received clarification regarding how the slope calculation was determined. The applicants created a contour map and then using the contours determined the slope percentage calculation. It was stated they had a significant number of trees which they felt gave a good representation of the ground.
Councilor Morrison/Hearn m/s to close public hearing. Voice Vote: all AYES. Motion passed.
PUBLIC HEARING CLOSED: 9:26 p.m.
Council discussed the permit criteria relevant to the Physical and Environmental Constraints permit.
Councilor Morrison stated they have heard a number of discrepancies this evening, but that most are in areas that are not relevant, such as the kitchen issue. Morrison stated he has not heard any compelling information that there will be overwhelming impacts, and stated everything he has heard stated that every attempt has been made to minimize the impacts. Morrison expressed his sympathy for the Historic Commission and the opponents to this project, but stated the decision needs to be based on the criteria and he has not found anything significant that would allow him to vote against this at this time.
Councilor Laws stated that he is glad that this is going to be the last house of this size in the Historic District. Laws agrees with Morrison in that they did not find any technicalities that were significant enough to reverse the Planning Departments decision.
Councilor Hearn stated they needed to base their decision on the criteria. He noted the ordinance is somewhat loose in it's language, but that the Council is obligated to vote for approval if the applicants have met the conditions.
Councilor Amarotico/Jackson m/s to extend meeting to 10:30 p.m. Voice Vote: all AYES. Motion passed.
Councilor Hartzell stated the intent of the Hillside Ordinance was to protect the watershed above us, and noted it also mentions the respect of visual character. Hartzell stated the Ordinance has a requirement that a tree plan be designed before any kind of development in this area, and the burden is on the applicant to know the law.
Councilor Jackson stated the criteria for the Physical and Environmental Constraints Permit is fairly clear. She stated staff has worked on this project and the applicant has produced volumes of documentation on how they believe they have met the criteria.
Councilor Jackson/Hearn m/s to approve the application as presented. DISCUSSION: Councilor Morrison noted that this is the time to consider what they can do in regards to imposing conditions and asked if they should consider imposing some conditions of restoration in addition to the approval. Council received clarification that any conditions imposed needed to be added to the motion. Mr. Franell recommended that Council accept the stipulation on the reduction of lot size proposed by the applicants. Mr. Franell clarified this would not remove the requirements for complying with the Physical and Environmental Constraints Permit, but would remove the requirement that a percentage be left in its natural state.
Councilor Jackson/Laws m/s to approve the application and the conditions of approval listed on page A67-A68 and those listed on pages 2-3, including a 10th condition that states the applicant's lot line adjustment keeps the adjusted lot size to less than ½ acre.
Voice Vote to amend motion: all AYES. Amendment Passes.
Voice Vote to approve motion: Laws, Amarotico, Jackson, Morrison, and Hearn, YES. Hartzell, NO. Motion Passed 5-1.
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