Agendas and Minutes

City Council (View All)

Regular Meeting

Tuesday, December 05, 2006

December 5, 2006
Civic Center Council Chambers
1175 E. Main Street

Mayor Morrison called the meeting to order at 7:10 p.m. in the Civic Center Council Chambers.
Councilors Hardesty, Amarotico, Hartzell, Jackson, Silbiger and Chapman were present.
The Executive Session minutes of November 21, 2006 and the Regular Council minutes of November 21, 2006 were approved as presented.
1. Minutes of Boards, Commissions, and Committees.
Councilor Jackson/Amarotico m/s to approve Consent Agenda. Voice Vote: all AYES. Motion passed.
1. An appeal of Planning Action 2006-01294 - Request for a Conditional Use Permit to convert thirty existing apartments to thirty condominiums units for the property location at 719 Park Street.
Mayor Morrison read aloud the procedure for Land Use Hearings.

Public Hearing Opened: 7:15 p.m.

Ex Parte Contact
Councilor Hartzell stated she was present for a portion of the June Housing Commission meeting; however, this will not influence her judgment.

Councilor Hardesty stated she participated at the June Housing Commission meeting; however, this will not influence her decision.

Assistant City Attorney Richard Appicello noted the minutes of the June Housing Commission meeting are included in the planning record. The statement of impartially was read aloud and both Councilor Hardesty and Hartzell stated they agreed.

Staff Report
Interim Community Development Director Bill Molnar presented the staff report. He explained this application involves a request for a conditional use permit to convert 30 existing apartments into condominium units and noted the relevant approval criteria for the conditional use is listed in AMC 18.104. Mr. Molnar provided a description of the property and stated it is located off Park Street and is approximately 1.5 acres in size. It is served by a flag drive and there are four separate buildings on the site. All of the units are two bedrooms and are just under 1,000 sq. ft. in size.

Mr. Molnar stated this application was initially approved administratively by staff. A request for a hearing to the Planning Commission was subsequently filed and the Planning Commission reviewed the action and approved the request by a vote of 5-4. Mr. Molnar noted the affordable housing requirement and stated 8 of the 30 units would available for individuals at the 80% median income level. He added that it is staff's understanding from talking with the applicant that the 8 units will remain as rentals.

Mr. Molnar explained the Planning Commission's decision was appealed and the appeal letter addressed concern that this conversion would impact livability; however it did not specifically identify what adverse material effects the conditional use permit would have on the surrounding area. Mr. Molnar commented on the approval criteria regarding bulk, scale, and coverage; impacts on public facilities; architectural compatibility; noise/glare; and impacts of adjacent properties. He stated it was difficult to determine the conditional use permit would have any impact at all because it is already a 30-unit complex and there are no physical changes being proposed. He stated that staff did not expect any changes to the amount of traffic generated by converting to allow for purchase of the units, no change on impact of public services, no change in the design of the building that would affect architectural compatibility, and no change to any site amenities that might impact noise or glare. Staff's recommendation is for the Council to uphold the Planning Commission decision to approve the conditional use permit.

Councilor Hartzell commented on approval criteria 18.104.050(C)(7) and questioned if the City's Housing Needs Analysis was considered. Mr. Molnar stated criteria 18.104.050(A) is more applicable in terms of what impact this development might have relative to housing in Ashland. He noted criteria (A) references "...conformance with relevant Comprehensive Plan policies that are not implemented by any City, State, or Federal law..." Councilor Hartzell commented on the potential loss of rental housing and questioned if it was appropriate to consider possible impacts aside from physical impacts. She also questioned if approval could set precedence.

City Attorney Mike Franell clarified evidence would need to be presented that indicates that a conversion from an apartment structure to a condominium structure would impact the availability of a particular type of housing that the City desires. If the applicant or the appellant presented this type of evidence, the Council could make a finding that approval would impact the availability of that type of housing and this sort of finding could set precedence on future applications. Mr. Franell also clarified in order to approve this conditional use permit, the Council would have to make findings on criteria (A), (B), and (C); and in this respect, the Council would need to determine that the application is consistent with the Comprehensive Plan. Assistant City Attorney Mr. Appicello added the Comprehensive Plan indicates a diversity of housing types, but it does not specifically addresses rental vs. owner-occupied units.

Mark DiRienzo/Urban Development Services LLC/
Stated this request involves 30 units and 8 of the units would be brought into the City's affordable housing program. He commented on the shortage of affordable "for sale" units in Ashland and stated the 22 units would represent some of the lowest cost housing available. Mr. DiRienzo stated that 15% of current renters typically purchase units when they are converted to for sale units and stated a large percentage of converted unit buyers are first time homebuyers and entry-level homebuyers. He stated the conditional use permit meets the criteria in the Municipal Code and feels they are providing an opportunity for people with this condominium conversion.

Chris Hearn/Davis, Hearn, Saladoff, Bridges & Visser/Noted that this conversion would increase the number of affordable units in Ashland for 2006 by 47%. Mr. Hearn reviewed the application timeline and commented on the need to have clear and objective standards for applicants. He noted the relevant criteria listed in AMC 18.24, and stated 18.24.030(J) allows for condominium conversions if the application meets the affordable housing standards. He stated this application meets the criteria listed in Resolution 2006-13, which was adopted the day before this application was filed; however, it does not meet some potential future resolution. He added if there were to be additional criteria applied to this application, it should have been included in the resolution because that is what the applicant was relying on when they filed the application.

Mr. Hearn commented on the criteria listed in AMC 18.104 and stated the context of 1-6 focus on physical attributes and stated there is nothing about a preferred mix of housing uses. Mr. Hearn stated that the basis for the appeal was specifically listed as subsection (C), "livability".
[Mr. Hearn's presentation was submitted into the public record.]

Questions of Applicant
Councilor Hardesty commented on the Housing Commission's recommendations for the affordable units to be dispersed through the complex and for the affordable units to be at 60% of area median income, and asked if the applicant would comply.

Mr. DiRienzo commented on the challenges of making the units available at the 60% median income level and added this would create a financial burden and weaken the ability for improvements to be made to the property. In regards to dispersing the affordable units, he explained that their research has indicated the probability of filling the units with qualified individuals is much higher if they are placed in a block.

Philip Lang/758 B Street/Requested that the record be kept open for 7 days. Mr. Lang clarified the appeal is based on criteria (A) as well as criteria C(7) and stated the appeal is based on livability. He commented on what can happen when apartments are converted to condominiums and stated the current tenants are often displaced and the units are purchased by those who want to "flip" the property. Mr. Lang stated the endless conditional use permits issued on a case-by-case basis result in defeating the target use of the zone and stated the Planning Department has a responsibility to monitor the extent of the CUPs and establish a point beyond which they are excessive. He stated the proposed development violates AMC 18.104.050(C) in that it has great adverse material affects, including but not limited to physical affects. Mr. Lang stated that condominium conversions actively reduce affordable housing and submitted a copy of Ordinance 2035 into the public record.

Art Bullock/791 Glendower/Requested the Council deny the application and stated that workforce housing affordability and working family displacement are both livability factors under AMC 18.104.050(C)(7) and both of these provide grounds for denying the application. He stated that ORS 458.705(2) and (5) require the City to meet the needs of working families for affordable housing and stated the main issue is the definition of "livability". Mr. Bullock stated the Council is permitted to consider other factors they find to be relevant, not just the factors listed in C(1)-C(6). He commented on the definition of "livability" contained in Webster's Dictionary and stated under Oregon law, if the word is not defined within the law that the common use definition is applied. Mr. Bullock stated ORS requires the community to provide livability and defines livability to mean, "the needs of working families for housing ... that are affordable and accessible." He stated that based on this definition, the Council should deny the application. He stated there is no limitation, from either case law or statutory law that would limit the Council's interpretation of the word livability and asked the Council to be clear that anything that would drive someone away from living in Ashland is a livability factor. Mr. Bullock claimed the following major problems with the application: 1) The application does not satisfy "livability" as workforce housing affordability, 2) The application does not satisfy "livability" because working individuals will not be able to live there due to mortgage requirements, 3) Granting this conditional use permit morphs it into a "Conditional Right to Use Later Permit", and 4) The application shuts down workforce housing.
[Mr. Bullock's written testimony was submitted into the public record.]

Questions of Appellant
Comment was made questioning if the appellant had evidence or numbers to submit into the record. Mr. Bullock stated the numbers are in the application. He stated all 30 units would be converted to condominiums and there in nothing in the application that states some will remain as rentals.

Comment was made that this is in a multi-family zone and questioned how the conditional use permit would defeat the intent of this zone. Mr. Lang stated that piece by piece, the Planning Department has been approving variances and conditional uses and that eventually this can undermine what the basic zone is. He stated that a single-family condominium is not multi-family affordable rental housing, and stated that condominium conversions destroy affordable housing in Ashland.

Those Wishing to Provide Testimony
Devian Aguirre/570 Clover Lane/Stated that she has been involved in affordable housing for most of her career in real estate and stated that the issue of affordability appears to be dictated on a project to project basis, when it should be a policy issue. Ms. Aguirre commented on the spectrum of needs and stated this is weighted on the rental side, however there is a point where the rental and for sale sides mix. She suggested there be a discussion of Ashland's for sale and rental needs and stated there needs to be a balance of both types of housing.

Staff Response
Mr. Molnar commented on Mr. Lang's statement that conditional uses and variances violate the intent of the zone. He stated that requests are evaluated with the Land Use Ordinance and the Comprehensive Plan and noted that the Land Use Ordinance allows for a wide range of housing types.

Mr. Molnar commented on the Planning Commission's split vote and noted that the Housing Commission and the Planning Commission had been in the process of developing a condominium conversion ordinance. He stated there might have been some frustration on the part of the Commission that they did not have the tool in place to adequately evaluate a project of this size.

Mr. Molnar clarified that home ownership rates have remained unchanged for the last decade; however, there has been an increase in single-family development for higher end housing, and noted the need to provide affordable ownership opportunities as well. Mr. Molnar stated that no new rental housing complexes of any sizable scale are being built in Ashland. He stated this is a real problem and questioned how the City could stimulate the private market to build rental units.

Assistant City Attorney Richard Appicello stated that because new facts about the history and the Planning Commission may not have been in the record, the opponents should be given the opportunity to rebut any new facts.

Art Bullock/Stated that when the Planning Commission voted 5/4 the issue was livability and they were struggling with this definition. He asked that the video tape of the Planning Commission's meeting be included in the record and stated that it was a forced vote. He noted their request to leave the record open for 7 days and stated they would introduce additional evidence that the City is losing ground in terms of meeting the housing needs.

Applicant's Rebuttal
Mark DiRienzo/
Clarified the applicant is intending to convert the units to condominiums and the goal is not to flip the units and sell them right away. In regards to the Planning Commission decision, he encouraged the Council to watch the video and let it speak for itself. Mr. DiRienzo stated that there is no definition of workforce housing, however most have an idea of what this means. He stated these low cost units would be half the price of the median house in Ashland and stated he cannot see how a working family in Ashland could afford anything but a condo conversion unit. He stated that these are multi-family units, with shared yards and no garages and are not the same as single-family attached units. He added that it is unfortunate that apartment buildings are not being built and related this to the lack of incentive to do so.

Chris Hearn/Stated this project as it stands today would increase the number of affordable units in Ashland by almost half. He stated the condominium conversion ordinance is a different issue and there will be opportunity for the appropriate public discourse.

Public Hearing Closed: 9:00 p.m.

Mr. Appicello noted the request to keep the record open for 7 days, which means no decision can be made tonight. He commented on the request to include the Planning Commission tapes in the record and clarified the appropriate way to include this in the record.

Mayor Morrison asked that they incorporate into the record any and all video or audio tape recordings of the Planning Commission's hearing and deliberations on this subject and Council agreed. He announced that the record will be left open for 7 days and will close on December 13, 2006 at 5 p.m. The applicant stated they agreed to this and stated they would like the opportunity to submit final written argument. Mayor Morrison announced the deliberations would be continued to the January 2, 2007 Council Meeting.

2. Continuation of an Appeal of Planning Action 2006-00078 - Request for an Outline Plan approval under the Performance Standards Option Chapter 18.88 for an 18-unit single-family residential subdivision for the property located at 247 Otis St. An Exception to the Street Standards is requested to allow curbside sidewalk in sections of the Otis and Randy Street frontages to preserve trees, wetlands and the residence at 247 Otis St.
Mayor Morrison noted that the Council has reached the point of deliberation on this matter.

Ex Parte Contact
Councilor Amarotico reminded the Council of his potential conflict on interest; he has a family member who lives near the project site, however this would not impact his decision.

Council Deliberation
City Attorney Richard Appicello commented on the alleged errors raised by the appellants and noted the Council has the right to consult with their legal counsel on interpretive issues. Mr. Appicello stated there were several allegations made in the appeal document that focused on language; however, these were not actual errors and were simply disagreements over the language used. He provided an explanation of the suggested language that was submitted by the Legal Department and stated the two main issues are: 1) what the existing, significant, and natural features are, and 2) traffic mitigation.

Mr. Appicello continued his explanation of the suggested language submitted to the Council. He suggested that the pool is a man-made feature built around a natural feature; and it is the spring that should be preserved. He also commented on the two conditions previously proposed by the appellants in regards to traffic mitigation. He stated this land use application is not the appropriate place to charge the Council with the development of a local improvement district policy. He also commented on non-remonstrance agreements and stated the provision in AMC Chapter 13 makes the provision in Chapter18 constitutional. He acknowledged that the Chapter 13 provision could be better; but stated the appropriate place to discuss this is during a legislative hearing. Mr. Appicello also noted that the suggested language states there will be a determination of the impact on this development in relation to any requested offsite improvements and that this will be imposed at time of final.

Mayor Morrison noted he had just received a Speaker Request Form from Mr. Bullock and he wished to address the Council in regards to ex parte contact. Mr. Appicello clarified the Council would need to re-open the hearing to hear the challenge. He noted the appellant had previously raised this concern and has failed to enter evidence into the record to this effect. He added that it was very late in the process for the appellant to be making such a challenge and questioned if he had sufficient evidence. Mr. Appicello clarified that based on what has previously been disclosed, there is no actual conflict on interest.

Mayor Morrison stated he is not inclined to re-open the hearing and requested Mr. Bullock write down his challenge so that they could determine if re-opening the hearing is necessary.

Council agreed to continue with the remaining Agenda items to allow Mr. Bullock time to prepare his written challenge.

Ambuja Rosen/Commented on the proposed tethering ordinance. Ms. Rosen stated the two-hour tethering limit would be workable and noted other cities who have testified that it is enforceable. She voiced her disappointment that an 8-hour limit was being considered instead. Ms. Rosen also commented on the 150 sq. ft. minimum space requirement for dogs and cats and asked that this be included in the ordinance.
Council Deliberation of PA 2006-00078 (Cont.)
City Attorney Mike Franell clarified the Council cannot deliberate on this matter until this conflict of interest issue has been resolved.

Councilor Hartzell/Amarotico m/s to extend meeting to 10:30 p.m.

Mr. Appicello commented that there have been several opportunities to enter into the record facts that constitute a conflict on interest and stated he believed it was reasonable to request the appellant to write down the facts so that they could determine if it is necessary to re-open the hearing. Interim Community Development Director Bill Molnar clarified the 120-day time frame expires on December 28, 2006.

Mr. Bullock submitted his written statement. Mr. Appicello read the statement aloud and stated it did not contain any facts, only a procedural objection. Mr. Appicello explained that under the law, Councilor Amarotico has a potential conflict of interest, and there has been no factual evidence presented to suggest otherwise. He stated he does not believe the Council is required to provide a special opportunity to consider this objection and does not believe there is anything that would require Councilor Amarotico to not participate in the vote.

Mayor Morrison stated they have provided an opportunity for the appellant to provide evidence and suggested that they move ahead with deliberations.

Councilor Chapman/Jackson m/s to approve the application for Outline Plan under the Performance Standards Option Chapter 18.88 for an 18-units single-family residential subdivision and for an Exception to the Street Standards to allow curbside sidewalk in sections of the Otis and Randy Street frontages to preserve trees, wetlands and the residence at 247 Otis Street is PA 2006-00078 with the conditions of approval attached by the Planning Commission as stated in the Findings and Orders dated July 11, 2006 with the language clarifications presented tonight by the Legal Staff, excluding the underlined phrase on Page 1 and the alternate phrase on Page 2. DISCUSSION: Councilor Chapman clarified his intention was to acknowledge the spring as the significant natural feature, not the pool. He also clarified this motion would incorporate the entire document submitted by Mr. Appicello with the exception of the underline phrase on Page 1 and the last alternate clause listed on Page 2. Mr. Appicello clarified this motion would find that the spring within the pool is not significant. Councilor Hartzell voiced her interest in protecting the water. Councilor Chapman stated that his understanding is that the water is protected by the wellhead. Mr. Appicello clarified that the main decision for the Council to make is whether the spring inside the pool is a significant feature and therefore required to be placed in a common area. If the Council does not believe the spring within the pool is significant, they could go with the Planning Commission's findings, which basically state that what is really important is the water and the water being pumped into the pool from the wellhead. Councilor Hartzell voiced her concern that paragraph two of the suggested language appears to be an "if/then" statement. She also voiced concern with including findings as part of the motion. Mr. Appicello clarified the language from the findings came from the documents that had previously been submitted to the Council and clarified the only new material is the wording "Prior to signature of the final survey plat..."

Councilor Hartzell motioned to amend motion to remove paragraph two and paragraph four. Motion died due to lack of second.

Mr. Appicello clarified his suggested wording in paragraph two and four and noted that the final findings would come back to Council for approval.

Roll Call Vote on Original Motion: Councilor Hardesty, Amarotico, Jackson, Silbiger and Chapman, YES. Councilor Hartzell, NO. Motion passed 5-1.

1. Discussion of City Charter.
Delayed due to time constraints. City Administrator Martha Bennett requested that the Council review the tenth page of the staff report regarding the water provision language and provide feedback to staff as to whether these were the right concepts. She also noted Ms. Vavra's language for Instant Run-Off Voting would be included in the packet materials when this item comes back to Council.
1. First Reading by title only of an Ordinance Titled "An Ordinance Amending AMC 3.08.020 to Apply Ethics Provisions to Employees, Appointed Officials and Elected Officials."
Delayed due to time constraints.
1. Discussion of 2006 Council Goals.
Delayed due to time constraints.
Meeting adjourned at 10:30 p.m.

April Lucas, Assistant to City Recorder
John W. Morrison, Mayor

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