Agendas and Minutes

City Council (View All)

Special Meeting

Wednesday, May 09, 2007

May 9, 2007
Civic Center Council Chambers
1175 E. Main Street

Mayor Morrison called the meeting to order at 4:05 p.m. in the Civic Center Council Chambers.
Councilor Hardesty, Navickas, Jackson, Silbiger and Chapman were present. Councilor Hartzell arrived at 4:15 p.m.
PUBLIC HEARINGS - continued from May 1, 2007
1. Council Appeal of PA2006-02354, Kistler.
Mayor Morrison called to order the continued Public Hearing for Planning Action No. 2006-02354. He noted the rules for the conduct of the hearing were available and explained the process for anyone who wanted to participate in the public hearing. He stated any written challenges would be addressed after the Council declares any conflict of interest or ex parte contacts. Mayor Morrison also noted that the list of applicable substantive criteria for this decision was announced at the May 1, 2007 meeting.

Councilors Silbiger, Jackson and Chapman stated they had no ex parte contact since the initial hearing. Councilor Hardesty stated that she had no ex parte contact to report other than she drives past the site every day and that she has paid more attention to the type of buildings in this area, which she does not feel constitutes bias or ex parte contact. Councilor Navickas reported he had a conversation with Planning Commissioner

Mike Morris regarding Mr. Morris' claim of bias reported at the May 1, 2007 meeting. He stated that Mr. Morris explained to him that his claim was not personal and brought up some issues of the land use appeal, but Councilor Navickas did not respond due to this being a de novo hearing. He stated that this would not bias his opinion on this hearing. Mayor Morrison noted that he drives by the site every day and that he read a handout provided at the May 1, 2007 meeting that was included into the record. Councilor Hardesty noted she had also read the materials provided at the May 1, 2007 meeting, which were included in the record.

Assistant Richard Appicello stated that all exhibits submitted at the May 1, 2007 meeting had been added into the record. He requested further disclosure on the substance of the discussion between Councilor Navickas and Mr. Morris.

Councilor Navickas clarified that the discussion involved procedure around ex parte contact and bias, and was not substantive to the criteria for the decision.

Mayor Morrison explained that anyone had the right to rebut the substance of the evidence or information disclosed. City Recorder Barbara Christensen confirmed that no written challenges had been submitted.


Colin Swales/461 Allison Street/Submitted into the record two disks containing meetings of the Planning Commission. He also submitted into the record pictures and maps.

Mr. Swales began his presentation by noting the application where it indicated that the unique and unusual circumstance of this site is the "historic nature" of this site. He explained that City Planner Maria Harris countered this in the minutes of January 9, 2007 where she stated that the applicants reasoning for it being unique and unusual circumstance was not the same as the staff's opinion. She had stated that staff felt the unique and unusual circumstance had to do with the site itself, the slope, and that it was on a corner. Mr. Swales felt that this was inappropriate because of the advocacy of staff going against the reasoning of the applicant in its findings. He reminded all that the burden-of-proof is on the applicant, not on staff.

Mr. Swales continued by noting the handouts he provided and the historic maps of 1949 that were included in this handout. He noted that 1949 was the last significant period for the designation of National Historic Districts. He indicated on these maps the 20-foot setback requirements, the historic fašade lines of the historic properties in the immediate area of the property, as well as the whole of the downtown, East Main and Siskiyou Boulevard that was discussed in the LUBA case.

Mr. Swales noted the exhibit map entered into the record by Jerome White where he suggested a condition of approval by having a 7-foot arterial setback. He suggested the addition of a condition of approval, although he does not support approval, that the building conforms to the average of the historic setbacks from the 1949 maps. He stated the non-historic additions did not exist in 1949 and are non-historic and non-conforming. He gave several examples of these in the area and the setbacks of these buildings. He believes that the average historic setback is between 25-40 feet. This average is what he suggests be used as an additional condition of approval.

Mr. Swales clarified his measurements of the setback and its relationship to the property line. He noted the conversation he had regarding the inaccuracy of the "Front Counter" program provided by the County when requesting maps. He continued to explain the difficulty of determining the actual property line location.

Mr. Swales stated that he would provide all that was presented to the City Recorder in order for it to be included into the record.

Philip Lang/758 B Street/Submitted his testimony into the record. Mr. Lang addressed his comments to Mr. Kistler, who was seated in the audience, and voiced his distress over the comments made by Mr. Kistler at the May 1, 2007 meeting.

Mr. Lang noted Ashland Municipal Code (AMC) 18.100.020 has the following three conditions for a variance: 1) Unique or unusual circumstances, 2) Proposal benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City, and 3) Circumstances have not been willfully imposed. In regards to these provisions, he noted that there are no standards that constitute a slope that justifies a variance, that the proposal benefits are no greater than if the project conformed to law, and that the circumstances have been willfully imposed.

Mr. Lang noted that at the May 1, 2007 meeting, Bill Street had corrected the issue of historic fašades. He stated the issue of conflicting ordinances was only raised after the projected was opposed and that staff went through a long process in favor of the development in their addendum of February 13, 2007. He stated that at the May 1, 2007 meeting, Planning Director David Stalheim made it clear that the 20-foot setback is primary and takes precedence over historic guidelines considerations.

Mr. Lang stated that land use ordinances should not be abrogated through case-by-case demands or preferential treatment. He presented a video portion of the February 13, 2007 Planning Commission meeting on the rebuttal by Mr. Kistler and submitted the tape into the record.

REBUTTAL BY THE APPLICANT (allowed 5 minutes)
Applicant Ray Kistler brought forward the comments made regarding the front fašade line setbacks on buildings along North Main and stated that they do not count if they were not built before 1949. He the three other buildings on the corner are setback 10-feet or less from the sidewalk and stated this should count as much as any other building that was built prior to 1949.

Mr. Kistler questioned the purpose of the "special setback" if Ashland never intends to widen North Main in this section and explained this is why he asked for the variance. He stated he does not understand why the 20-foot setback requirement remains since both the City of Ashland and the Oregon Department of Transportation have stated that this section will never be widened. He stated he does agree that the 20-foot setback is important in some areas, but stated it is not relevant here. Mr. Kistler stated there are too many buildings that already encroach on this and gave examples of these buildings. He stated that unless the Council believes that these buildings and trees that are in the setback will go away and that North Main would be widened, he does not see the need for the setback.

In regards to the discussion on the property line placement, he stated that on this corner, according to his survey, it is about 30 inches off the back of the curb where his property adjoins the property to the south. He noted that he does have an alternate design and this was provided to show how this would fit. He stated this is the reason why he feels this property does not need a variance. Mr. Kistler stated he does not understand why the setback rule is relevant on this property and stated his property is not the problem with widening North Main.

Mr. Appicello clarified that the request for continuance of the meeting of seven days has been sufficient time for further information to be submitted into the record.

The public hearing and record was closed at 4:37 p.m.


Community Development Director David Stalheim clarified the process in which items can be submitted into the record and clarified the information submitted by Mr. Swales at the May 1, 2007 meeting was incorporated into the record.

Mr. Stalheim clarified that it is not a requirement of the development to provide bike lanes. He stated that North Main conforms to the curb-to-curb with four lanes and that there is sufficient width to do this. He clarified again that it is not a requirement of this development to widen North Main by taking out a sidewalk and put in a parkrow. It is only where there is no sidewalk and noted that there is an exception to Glenn Street because there is no sidewalk there.

Councilor Hardesty voiced her concern with not having bike lanes on North Main and questioned if there would be any way that North Main could be widened to accommodate bike lanes. She questioned if this would have any bearing on this action.

Mr. Stalheim explained that the record shows the curb-to-curb, which does not preclude putting a bike lane in and noted that in the communication provided to Council there was a condition proposing a 7-foot easement that would not only allow a bike lane, but a parkrow and a sidewalk.

Mr. Appicello commented on the staff report and suggested a condition to require a 7-foot easement dedication to the City that is required to be propitiate to the impact of the proposed development and there would need to be findings in the record of this and he is not sure that this is in the record. He clarified that if this is a proposal from the applicant then it is not subject to the exaction standard.

Mr. Stalheim stated that because the standards speak to the future widening of the road, it is being allowed under the condition that we are not precluding the opportunity to widen the road in the future to City standards. He stated that there is a good relationship between these two and he is not aware if the applicant approves of this condition.

Councilor Jackson requested further information on where the AMC defines the 20-foot setback compared to the historic map versus the current map.

Mr. Stalheim explained the standard in the code, which is in the record from the Planning Commission, has the standard from the AMC Street Standards, which is as much definition available to the Council in the design guidelines. He stated that the National Register is based on the inventory of properties that are 45 years old or more and the standard is 50 years or more. He stated it does allow National Registered Districts to have both contributing and non-contributing properties.

Mayor Morrison questioned that given the conflicting testimony concerning the fašade line, what is it based on and what is the substance?

Mr. Stalheim stated that staff had taken the opinion of not drawing historic fašade lines based on the 50-year National Historic standard but rather on the historic pattern of this streetscape. He explained that this shows there is good reason for planning and gave several examples of different streetscapes. He stated that it gets to be a judgment call on what is appropriate for this area and that this was the difficulty that the Planning Commission had when making their decision.

Mr. Stalheim clarified that this speaks to fašade lines not property lines and that the historic fašade is based on a whole block rather than one building. In this case, there are two different adjacent properties that are historic properties that show that the lines are significantly different. He explained that this is a difficult area because there is no pattern of historic buildings that are more than 50 years old for the entire block as there is in the downtown where there is a clear historic fašade.

Councilor Hartzell asked if it is fair to say that on average the 20-foot setback is respected in the rest of Historic District and Mr. Stalheim agreed that this is a fair statement. He stated that in some of these areas,

the street has been widened and that in this immediate area the street was widened for the Maple Street intersection. He clarified that the map provided by Mr. Swales is not a historic map and does not represent the setback from the historic right-of-way line.

Councilor Hartzell requested further clarification from legal counsel as she is convinced through testimony, what the historic purpose was and that it weakens the argument that the historic standard trumps the setback. She questioned if the setback is in place, and the historic standard is weakened, what would the requirement be for following the setback law unless the Council can find compelling reasons according to the standards for granting the variance.

Mr. Appicello stated that this is the standard under which this decision will be reviewed. He stated that the Land Use Board of Appeals (LUBA) would make a case law not to overturn the Council's own interpretation and application of their own ordinance if it is not inconsistent with the expressed language purpose or policy of the ordinance. He stated LUBA would only overturn it if it were inconsistent, but this does not mean that the Council could not have differing decisions that are both supported and proceeded to give examples where this has happened.

Mr. Appicello continued to clarify that the Council is not being asked to make a legislative decision but rather a decision based on whether the three-variance criterion has been met. He proceeded by stating the required criteria for making the decision and where in the record this criteria had been met as stated by the Planning Commission findings. He stated that it is the Council who makes the interpretation in regards to balancing what is provided in the AMC when making their decision.

Councilor Navickas noted that the Historic Commission recommended symmetry on the ground floor concerning vision clearance and questioned why this was not done. He noted the second proposal alleviates this problem and creates symmetry on the ground floor and pointed out where this is indicated in the record.

Mr. Stalheim stated that the vision clearance is dealt with on this corner in the proposal that was reviewed and approved and that the side Councilor Navickas is speaking of will be brought forward as a condition and would need to be approved by the Historic Commission in the final design. He noted the balancing issue gets back the design characteristics of the building itself and stated the Historic Commission was trying to balance the design of the building to the historic character and this was one of the conditions required.

Mr. Stalheim clarified that those that make a historic district are more than 50-years old. He believes that the site-design standards were established in the 1980's. He stated if it was not a historic neighborhood, the only standard would be the 20-foot setback standard because it is an arterial.

Councilor Jackson commented on the information in the record, which indicates there is adequate width at this location for bike lanes and park rows.

Councilor Jackson/Chapman m/s to affirm the decision of the Planning Commission for PA #2006-02354 as prepared by the Planning Commission. DISCUSSION: Councilor Navickas voiced his opposition to the motion. He commented on destroying the City's opportunity to provide trees along City streets and stated he does not feel that the application has met the variance criteria. He commented on the setback requirements, and stated they need to look at the requirement for light, air, and vision from a whole community perspective. He noted that this is a difficult site to deal with and stated that an urban type design with a 20 ft. setback would be better for this site. Comment was made questioning if the motion includes staff's suggested condition for a 7 ft. easement. Councilor Jackson clarified the motion does not include this condition as she does not feel it is needed since there is already sufficient right-of-way to install park rows, bike lanes, and a sidewalk.

Councilor Hartzell/Silbiger m/s to amend motion to add the condition that a 7-foot bicycle and pedestrian easement be granted to the City of Ashland along N. Main Street that will allow the City, or designee, to construct, reconstruct, install, use, operate, inspect, repair, maintain, remove and replace access improvements, including but not limited to street, sidewalk, bike path and landscaping improvements. DISCUSSION: Councilor Hartzell briefly commented on why she believes this condition is necessary. Councilor Chapman questioned the appropriateness of including this as a condition. Mr. Stalheim clarified that the record before the Council does not include an offer from Mr. Kistler for such a condition, and stated that Mr. Kistler had voiced approval of such a requirement after the Planning Commission's decision during the meeting with himself and the Public Works staff. City Administrator Martha Bennett stated that it is acceptable for Council to ask Mr. Kistler if he approves of the condition. Mr. Kistler came forward and stated "yes", he is in agreement with the imposition of the easement. Councilor Jackson expressed concern about adding a condition that is not needed. Councilor Navickas encouraged the Council to not support this amendment. He stated it would destroy an opportunity to provide trees on N. Main Street and encouraged the Council to demand that the 20 ft. setback be maintained. Roll Call Vote: Councilor Silbiger, Hartzell, Chapman, and Hardesty, YES. Councilor Jackson and Navickas, NO. Motion passed 4-2.

Continued Discussion on Original Motion as Amended: Councilor Jackson voiced support for the Planning Commission decision and stated this lot clearly appears to be unique in its shortness of depth. Councilor Navickas commented on page 27 of the record and voiced support for maintaining the historic fašade lines. Councilor Hartzell requested the video tape for this hearing be incorporated into the record. She also requested the findings for this action not include Mr. Stalheim's statement that the air, light and vision standard was not important in this situation because none of the neighbors complained. She also requested that those who vote in favor of the motion speak to which variance criteria they are using as the basis for approval. Councilor Hardesty voiced support for the applicant's design with the 20 ft. setback and stated she does not support granting a variance in this case. Councilor Silbiger noted the Historic Commission clearly favored the 10 ft. setback and stated they have received ample testimony that indicates this setback would allow for bike lanes, parking strips, and sidewalks. Councilor Chapman noted he is also concern with losing large trees along N. Main Street, but stated he does not believe they will ever want N. Main to look like Siskiyou Blvd. He stated that when they consider the other buildings in the vicinity, they should disregard the motel and Big Al's and noted the buildings nearby all have 10-12 ft. setbacks. He stated he is also concerned with bike lanes on N. Main, but does not believe they need extra width to accommodate bike lanes on this street. Roll Call Vote on Original Motion as Amended: Councilor Jackson, Silbiger and Chapman, YES. Councilor Hartzell, Navickas, and Hardesty, NO. Mayor Morrison, YES. Motion passed 4-3.

Mayor Morrison commented on his reasons for approving the motion. He agreed that speed is a concern in this area, but does not believe they need to widen the street. He voiced support for keeping the street as tightly packed as they can and stated that the 10 ft. setback was a good compromise. He noted the immediate area surrounding the property has not been consistent with the 20 ft. setback and stated this application meets his interpretation of the variance criteria.

Meeting adjourned at 5:47 p.m.

Barbara Christensen, City Recorder
John W. Morrison, Mayor

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