ASHLAND PLANNING COMMISSION
REGULAR MEETING
MINUTES
May 13, 2008

CALL TO ORDER
Chair John Stromberg called the meeting to order at 7:04 p.m. at the Ashland Civic Center, 1175 E. Main Street, Ashland, OR.

ANNOUNCEMENTS
Molnar announced there will be a May 27, 2008 Study Session. The topic of discussion will be Land Use Incentives and Regulatory Barriers to Affordable Housing.

Stromberg introduced new members Debbie Miller and Mick Church.

APPROVAL OF MINUTES
April 8, 2008 Hearings Board Minutes: Mindlin/Stromberg m/s to approve. Voice Vote: The minutes were approved.

April 8, 2008 Planning Commission Minutes: Dimitre/Marsh m/s to approve. Voice Vote: The minutes were approved.

April 22, 2008 Water Resources Study Session/WorkshopMinutes: Dimitre/Marsh m/s to approve. Voice Vote: The minutes were approved.

PUBLIC FORUM
No one came forth to speak.

SPECIAL PRESENTATION
Southern Oregon University Intern Project - Special report on photo inventory of riparian areas.

Pat Acklin is an Associate Professor of Geography at SOU and teaches in the Environmental Studies and Social Science Policy and Culture Departments. Ms. Acklin introduced her students that are in a course called Planning Issues. The students are from Geology, Geography, and a number of Environmental Studies Options including a Social Policy Option. Many of the students have a minor in Land Use Planning.

The students then gave their presentation.

JARAH JOHNSON gave a brief explanation of their methodology. She reported that the class was divided up into four different groups each with three or four members. Each team was assigned individual creeks to survey. They then took all of the data back to the Geography Computer Lab at SOU and compiled the data into GIS format. Ms. Johnson said for the inventory of the streams the teams used GIS units. They also used field maps that were produced for them. They surveyed a number of categories while in the field; upstream and downstream photographs, general landscape description, described the canopy cover, discussed the types of riparian vegetation, assessed the stream and bank conditions and assessed the channel widths and riparian widths.

TROY THOMAS gave his report and video presentation on the Meadowbrook Park open space on lower Clay Creek. Mr. Thomas said the area was heavily landscaping with a very low canopy cover. There has been significant erosion which has caused an entrenchment of the channel in the area. Mr. Thomas said that areas with better erosion patterns that are more native landscaped is noted on an excel spread sheet. Church inquired how much of Clay Creek they sampled. Mr. Thomas confirmed they sampled everything south of Siskiyou, Upper Clay Creek and parts of middle Clay Creek though they are not finished yet. The plan is to eventually sample all of Clay Creek at hundred foot intervals. Molnar gave the background about this development. He stated it was annexed into the City in 1988 and the prior property owner had done quite a bit of altering the natural environment. As part of the plan for this development they had to redefine the channel.

MARY LYNN HONLOSER reported on Beach Creek from the watershed area above Siskiyou Blvd down to North Mountain Park. Ms. Honloser showed how the area was heavily covered with blackberries and estimated the channel width to be about four feet. It's in a wide V shape valley with no canopy cover. Downstream is only about one foot wide, some grasses both native and nonnative along with Hemlock, Willow and Alder trees.

SHAWN STAFFORD reported on Cemetery Creek which runs adjacent to Clay Street Park under Ashland Street into the cemetery. It has erosion in the upper section near the Park. The City recently planted Nine Bark, Red Twig and Hawthorne along the stream banks. Mr. Stafford said the canopy cover is very minimal with a little more down by the railroad tracks by the private property.

TRACY DOLASAR-JENSEN'S group inventoried Roca Creek from Roca Street behind SOU down to Millpond Road. Ms. Dolasar-Jensen said it was a V shaped canyon with steep banks and the area was heavily eroded. An erosion control measure had been used that was doing little to nothing to minimize the erosion in that area. The stream itself was fifteen inches to two feet wide however the riparian area from top of bank to top of bank was between fifteen and twenty feet wide. There was light to medium canopy cover and the vegetation consisted of crab grasses, snowberry, English ivy and blackberry bushes. Some areas had blackberries so heavy you couldn't even see the creek, stated Ms. Dolasar-Jensen.

Ms. Acklin reported that by the time they finish this project they will have added Ashland Creek and Bear Creek, where it is in the City limits. This year's class only took on lands that were publicly owned or open space that came with a development. Ms. Acklin said that perhaps a student intern might finish this up but the private lands will be done by next year's class. Marsh inquired how to get access to the various hues that the students described in terms of their findings. Ms. Acklin said that at the close of the quarter a student is taking all the data and putting it into a map of riparian areas. Ultimately the date will be given to the City.

The Commissioners acknowledged what a terrific presentation this was.

TYPE III PUBLIC HEARINGS
PLANNING ACTION: 2007-01313
APPLICANT: City of Ashland
DESCRIPTION: A proposed Chapter 18.63, Water Resource Protection Zones added to the Ashland Land Use Ordinance addressing wetland and riparian area protection, and revisions to Chapter 18.62 Physical and Environmental Constraints regarding Riparian Preservation Lands.

Stromberg announced this is a continuation of the Public Hearing from the April 22, 2008 meeting. Stromberg asked Harris to review the key issues one at a time then the Commission will ask questions followed by audience comments. After Harris' presentation if there are further audience comments Stromberg said they will be given an opportunity at that time.

STAFF REPORT
Harris gave a recap of the April 22, 2008 Public Workshop. Harris reported eighteen hundred written notices were mailed to property owners with water resources on their property or within fifty feet of their property. State law requires noticing the public when a proposed Land Use regulation may affect the use of the property. Harris said there were about forty people at the workshop with about thirteen testifying. Staff also received a number of written comments. Harris took the summary of the comments from the workshop as well as all the written comments and identified key issues and common themes. Harris noted that all of the comments received so far pertain to streams. The main concern is about how the proposed Stream Bank Protective Zones will affect their properties.

Five Key Issues:

1) Local Native Plant Species Requirement - Harris said the way the draft ordinance is written now it requires native plants to be planted in newly disturbed or newly planted areas in Stream Bank Protection zones. Harris said the concerns raised at the meetings were that people should have the right on their private property to use that protection zone and landscape it the way they see fit. Staff suggested as an option to look at allowing a percentage of non-native vegetation.

Commissioners Discussion and Questions
Dawkins questioned when he saw the slide of Cemetery Creek and that the City actually planted non-native plants, how does that fit in? Harris confirmed that all properties are treated the same whether they are private property or City owned. If non-native plants are in place when the Ordinance goes into effect they can remain.

Mindlin asked staff to take a moment and explain why it's important to have native plants. Molnar explained that first and foremost as you get closer to the creek native plantings evolve into creek environments so they have an ability through their root structure to withstand flooding events and they are able to essentially deal with how a creek evolves over time. Molnar said there is a contribution of natives to habitat type of leaf fall and how it provides a certain nutrient to the aquatic life ,erosion control, water quality and habitat.

Dawkins suggested it might be a good idea to make up a list of native plants similar to the Street Tree list.

Stromberg asked how you would determine the percentage that can be used for non-native plants. Harris said their idea was to take the total square footage of the protection zone on their property and then assign a percentage that could be in non-native landscape. Church inquired how would you enforce and police this. Molnar answered that as with other ordinances they often look through voluntary compliance and public education. Often enforcements come because of a complaint.

Public Testimony
RICK LANDT, 468 Helman, shared his concerns about Ashland Creek. Mr. Landt said most of what he has done is consistent with the proposed ordinance. He is concerned if we only keep the trees that are six inch in diameter breast height, in a riparian area you will never have sustainability and if you didn't allow the saplings to grow you would eventually end up with nothing. Mr. Landt gave an example of a non-native Black Walnut tree down by Ashland pond that made it through the 1974 and1997 floods that's currently holding the bank but the way the ordinance is written it could come down.

ROYCE DUNCAN, 1065 Paradise Lane, said native plants are very useful but non-native plants can be also. Mr. Duncan believes that as long as you have a vegetative cover on the channel you are doing the right thing whether they are native or non native plants.

RICK LANDT said there are three layers in the riparian zone; tree canopy, woody material and perennials. Mr. Landt believes the perennial material is a problem that needs to be looked at. He has tried to grow riparian plants and has not been able to establish them. Mr. Landt has now taken some non-native plants that are tougher and he is at least getting vegetation to grow. He said next to the creek it would be acceptable to have native plants though he is not in favor of lawn because it is problematic. Molnar explained that it's not so much about trying to protect native plants but the primary purpose is to protect the functions that those plants provide. If there are non-natives that provide similar functions as natives that is something that might be appropriate.

Mindlin said that because of the climate change what is growing here currently successfully might not continue to grow here successfully and they may want to take that into consideration when talking about what the approved plants should be.

2) Landscape Maintenance in Water Resource Protection Zones - Harris reported that there was concern about the definitions used in the Ordinance regarding non-power assisted equipment and power assisted equipment. Basically the way the ordinance is written now you can go into a Stream Bank Protection Zone with non-power assisted equipment to remove invasive or noxious vegetation. Harris said you do need a permit if you use power assisted equipment. The intent behind that is to control activity with machinery that could damage the protection zone. Harris said staff agrees this definition could use some fine tuning. They are suggesting instead of the non-power, power assisted, they are thinking the use of hand held equipment as an exempt activity. Another concern expressed was that if you do allow hand held equipment that would include weed eaters which can get into the riparian areas and cut everything off. One way to address that is to prohibit the use of weed eaters from the area from the stream to the top of bank.

Public Testimony
RICK LUCAS said using a weed eater is almost like having gun rights. Mr. Lucas said it's a huge assumption being made that someone might just mow down everything and put the stream at risk. He uses a weed eater as a selective tool in order to encourage some of the other woody shrubs that have either been planted naturally or ones they have introduced to give them a chance to get a head start against the invasive grasses. Mr. Lucas believes it would be a good thing to educate everybody about these riparian areas because some people don't know what's good and what's bad. He suggested that guidelines might be better then an ordinance. One idea would be to send out flyers listing the things we can do to help the streams to be healthy, stated Mr. Lucas.

ROYCE DUNCAN stated that he has an area with a canopy that he mulches and keeps the blackberry plants down by using a weed eater and a self propelled wheeled mower. It's very successful.

ZACH BROMBACHER, 1370 Tolman Creek Road, shared that he is basically against this ordinance change for many reasons. He has thirteen acres on Tolman Creek Road that he has owned since 1967 near Hamilton Creek. Through the years he has developed a few things but still has about six acres that is undeveloped. Mr. Brombacher said he has people on a weekly basis maintain the property by picking up garbage from Bi-Mart, weed eating around things to keep it clean and they use a mower. He also has seven and a half acres on upper Tolman. Though the years Mr. Brombacher has gotten rid of lots of blackberries and recently by hand redid all the rock in the creek way on his property. Mr.Brombacher acknowledged he is starting to get resentful because they are talking about something that is changing what he has had for a long time as well as possibly devaluating his property. Where TID is located on both of his properties Mr. Brombacher said he goes in and weed eats, uses an excavator, and just generally cleans things up in order to provide access. He anticipates being in trouble all the time.

Molnar said with larger pieces of property they could allow the use of weed eaters or lawn mowers. Another option is to provide education materials in those instances and try to get the people to recognize plants and work around them. Molnar questions the success of that option. Stromberg explained that what they are raising here is the possibility of different things being appropriate in different circumstances. Molnar replied that he has seen a few communities address larger areas coming in on the front end with a larger area management plan where you work with the property owner identifying where you're going to introduce native plantings. That remains on file and is understood there is a maintenance plan for going in and using equipment and managing it as long as you stay away from certain areas.

DUNCAN ROYCE believes it will take a lot of management and maintenance to keep the evasive species from taking over. Mr. Royce asked if we should coordinate with the fire department regarding their policies to cut down grasses for fire safety. Harris said there is a provision in the Draft Ordinance that fire prevention control in accordance with an approved fire management plan is exempt.

Mindlin was concerned if they limit access to work with tools what extent might that encourage herbicides?

3) Nonconforming structures and activities - Harris explained these are structures and activities that are placed in the Stream Bank Protection Zone that are existing before the ordinance goes into effect. Currently the way the draft is written it would require a Planning Approval for the replacement of an existing structure in a Water Resource Protection Zone. Harris said outside of the downtown the most common intrusion is not usually residences or commercial buildings but small outbuildings, decks, retaining walls, patios, etc. Sometimes those are not legally established from the beginning. The buildings downtown on the Plaza are clearly in the Flood Plain and probably need to be exempt. Harris suggested one option the Commissioners might look at in place of a Planning Action would be to exempt legally established nonconforming structures. The property owner would have to show it was legally established, which can sometimes be difficult to show. Another approach would be to exempt main primary buildings on a property but still leave the Planning Approval in for accessory buildings, outbuildings, decks, retaining walls, etc.

Staff showed photos of nonconforming structures.

Mindlin asked if someone had to go through a planning action what would the criteria be for that planning action? Molnar responded saying one question you would ask is there areas on the property outside the protection zone where the use or structure could be suitably located. Church commented one of the primary benefits is actually to make the situation better over time with the ability to remove these nonconforming uses.

ROYCE DUNCAN acknowledged the biggest issue he has with the ordinance is the buffer zones. As we impose larger buffer zones on existing fabric all we're going to do is trigger hundreds of properties that fall into the existing nonconforming use. For a citizen to put together an application costs thousands of dollars and he believes this is throwing a tremendous burden on the home owner.

GRAHAM SHELDON, 70 Water St., owns a piece of property entirely in this protection zone. Mr. Sheldon is encouraged by the inclusion in the draft ordinance for some protection for nonconforming uses because his property, the Ashland Creek Inn, is a classic definition of a nonconforming use. Mr. Sheldon would like the Commissioners to draw a distinction between a legally permitted deck verses something that had not been put though that process. Mr. Sheldon said for those who have gone through the appropriate process and done it right it seems almost a penalty to make them go through the process again. He is lobbying for the option that if it's a legally done and permitted structure and you can demonstrate that, then you don't have to go through the whole process again.

Molnar acknowledged Mr. Sheldon had legitimate concerns. Molnar said they have gone through a similar format under the Flood Plain Ordinance and have treated commercial properties with a little bit more flexibility because of other public benefits recognized.

Hartzell said with this process where is the room for adaptation? If it was engineered to a hundred year flood we've learned something if a flood comes through and took it out making the argument it could be made to go ahead and put it through with a modified process. Molnar gave the example that Lloyd Hanes built the Shasta Building downtown. The creek side had a deck that went right down to the water and he wanted to build to that original footprint. Molnar said the feeling was they should try and bring back some of the setback to 10 or 12 feet.

ZACH BROMBACHER said in the forty years he has been developing the property across from Bi-Mart things have changed immensely. He has done everything according to the rules at the time. When this ordinance is decided upon he would like written assurance that the City will not change anything else on him in the future. Over the years he has had to adjust because of the different regulations that came into place.

DONNA ANDREWS just today received approval to construct a building in the Falcon Heights Subdivision. Not knowing when this ordinance will go into effect she wanted to know what her security is as far as the approval in moving forward. Molnar explained that her approval is valid for one year and is subject to the requirements on the books when she applied.

RICHARD APPICELLO, City Attorney, explained that nonconformities are just a way for existing situations to continue and not take things away. The importance of nonconformities has to do with the primary use of the property. It's really about saving the primary use of the property from the effect of the new regulation. We don't necessary want nonconformities because it preserves something under the old rules. Mr. Appicello said "Don't take away from the legislative bodies' ability to enact new regulations." If you adopt a regulation you want it to be effective.

The Commission took a five minute recess.

4) Nonconforming Driveways and Building Envelopes- Harris reported there are lots that have been created throughout town that are next to one of these streams that has identified a building envelope that meets the current regulations for flood plain or riparian setbacks. Under the existing ordinance there are no provisions to exempt those. In terms of options staff suggested they could put exemptions in for those vacant lots so they would be exempt of construction of new driveways if the location specifically was approved prior to the adoption of the ordinance. Another option is to exempt construction of new structures on vacant lots in previously approved building envelopes.

5) Top of Bank Definition- The current ordinance defines the top of bank as the elevation at which the water overflows the natural banks and inundates the upland areas. If it's not clear where the top of bank is there are two options you can look at; the two year interval flood elevation or the line of aquatic vegetation whichever is greater. Harris said the concerns raised was the top of bank definition is too subjective. It was suggested that they just use the flood plain rather then a new area to regulate and perhaps use the center line because it's a lot easier to find and measure.

Harris showed the different points you can pick in which to measure a protection zone. The staff explained how they find the centerline of the creeks. Harris said it's currently written in the ordinance that an application involving a single family residence on existing lots would have an option to use on site verification by planning staff. Harris acknowledged one of the reasons they are reviewing this ordinance is to meet the Oregon State Planning Goal number five in terms of protection of Riparian Areas. As part of that administrative rule there is something called a Safe Harbor Approach. Harris said the Safe Harbor is a prescribed path in terms of protecting the significant resources which in our case are the Riparian Corridor fifty foot setback class.

Dawkins/Dimitre m/s to extend the meeting until 10:00 pm. Voice Vote: Approved

Someone had suggested "Why not Use the Flood Plain for the Stream Bank Protection Zone." Harris showed a slide of Creeks to show it has a lot narrower area then the flood plain. If you extended those regulations into the flood plain you would be looking at regulating a lot bigger area. The map also showed that it's not making a lot more properties nonconforming and affecting the divisibility of lots.

Public Testimony
CYNDI DION, 897 Hillview Drive, spoke representing the Ashland Watershed Partnership. As a group that has long supported the City of Ashland in creating a carefully thought out Riparian Ordinance Ms. Dion said they would like to make recommendations. Those recommendations were given to the Planning Commissioners in written form and Ms. Dion read them.

JOHN WARD, 1525 Baldy Creek Road, with the Bear Creek Watershed Council congratulated the Commission for their patience and dedication to grapple with things that are not necessarily easy. The Watershed Council believes that the kind of work you are tying to do by establishing these wetland and Stream Corridor protections is probably the most important thing you can do, stated Mr. Ward. He commented that the situation in Ashland is unusual because you are living at the base of a mile of drainage area. The Watershed Council would like the opportunity to work with both the City and TID to benefit the streams and continue to meet irrigation requirements. Their web address is: www.bearcreek-watershed.org.

Dawkins/Mindlin m/s to extend the meeting until 10:30 p.m. Voice Vote: Approved.

Mindlin said a number of people made comments in the written information they received about concerns with pesticides, herbicides and chemical fertilizers. Mindlin said chemical problems can be a threat to the things they are trying to protect and suggested that they be included in this ordinance.

Morris asked if this is a protection ordinance instead of a bring it back to natural state Ordinance. Having a lot of creeks that are TID creeks with pumps, little drainages, ditches going across, gate valves, etc. what is being address about what you can do to a creek that you are actually pulling irrigation out of inquired Morris. Molnar said maintenance of existing irrigation lines and pumps is exempt. Molnar confirmed this is a protection ordinance and said it is the responsibility of all property owners regardless if they're going to do land development or divisions to maintain the resource to a certain level.

RICK LANDT commended the Commission for their work on the ordinance but believes for many reasons why it's not time for the Planning Commission to make a decision. Mr. Landt sees inconsistencies and believes changes need to occur. He would like to see this go back to a smaller group for recommendations.

Church read the letter dated May 11, 2008 from Dave Dotterrer who was absent due to work.

COMMISSIONERS' DELIBERATIONS AND DECISION

Marsh/Morris m/s to continue the meeting to the June 10, 2008 meeting.

Roll Call: The motion carried unanimously.

UNFINISHSED BUSINESS

OTHER

ADJOURNMENT - The meeting was adjourned at 10:30 P.M.

Respectfully submitted by,
Carolyn Schwendener, Account Clerk