ASHLAND PLANNING COMMISSION
CONTINUATION OF REGULAR MEETING
FEBRUARY 25, 2003
CALL TO ORDER
Chair Russ Chapman called the meeting to order at 7:05 p.m. Other Commissioners present were Ray Kistler, John Fields, Cameron Hanson, Marilyn Briggs, Dave Dotterrer, Mike Morris, and Colin Swales. Kerry KenCairn was absent. Staff present were John McLaughlin, Bill Molnar, Brandon Goldman and Sue Yates.
Briggs is very concerned using a Study Session for continuation of a hearing. In the past, hearings are continued to our Regular Meetings so the public is aware of what we do and when. She doesnít want to set a precedent. The public deserves to have the Planning Commission be consistent. Swales agreed.
Chapman is concerned about having unfinished business carried over to the regular meeting. It is nice to start the regular meetings with a clean slate.
Dotterrer believes a Study Session should be kept a study session.
Hanson does not have a problem continuing actions to the study session. He does not mind making a policy decision about what we are going to do, however, in this case it is only fair to continue the hearing tonight.
It was decided the discussion would continue under the study session process items. Everyone agreed to go ahead with the following action continuation.
TYPE II PUBLIC HEARING (CONTINUATION)
PLANNING ACTION 2003-006
CONDITIONAL USE PERMIT TO ALLOW UNRESTRICTED HOURS OF OPERATION.
340 OAK STREET
APPLICANT: A STREET MARKETPLACE LLC
Goldman said the Staff Report was given on February 11, 2003. The applicant has proposed to enclose and soundproof the pavilion space (already approved). After completion, they are asking for unrestricted hours of operation.
Dotterrer asked about the serving of alcohol. Goldman said the Council makes the determination whether a liquor license is approved. The application is for a mix of venue uses including nightclub/bar uses. It is his understanding that during some events alcohol would be served in the pavilion space and interior courtyard.
Swales had a call from Dave Hard regarding sprinkling. Goldman said once the outdoor pavilion is enclosed, there are additional fire code requirements that will have to be met when building permits are submitted. In light of the recent fire at the nightclub in Rhode Island, Dave Hard expressed some concern about the soundproofing. A Condition has been added "That all requirements of the Ashland Fire Department be met".
Swales said he talked with Hard about the capacity of the pavilion. It has a maximum capacity of 250, though the CUP granted limited it to 200. How does one make sure there are not more than 250 people present? Hard said it is complaint driven. Goldman said Hard would revise the plaque to 200 so there is no confusion since the Condition states a maximum of 200.
Swales said the applicant indicated Sandler would be renting the facility. Goldman said the rules are self-regulated and enforcement is complaint driven. If they donít stay within the bounds of the CUP, they would be subject to revocation.
Site Visits and Ex Parte Contacts
Dotterrer listened to the tapes of the previous meeting and read the draft minutes. He had trouble hearing what was on the tape. He is unbiased and will participate in the hearing.
Swales had conversation with Dave Hard and another site visit.
Fields said Brad Roupp wanted to talk about the project, stating it would be a positive thing for the community and that was the direction the neighborhood was moving.
ALLAN SANDLER said they are not asking for any change to the sound, lighting or parking ordinance. They are asking for removal of the 10 p.m. curfew on the CUP only when and if they enclose the pavilion (already approved). They are surrounded by commercial operations and railroad tracks 360 degrees around the pavilion. They are not impacting any residential sites. They want to give Ashland a mid-size performing arts venue that will be affordable for the artists of southern Oregon and Ashland. This will supply more jobs and a place for artists to do their work and make a living.
Swales asked if Sandler has considered using this venue for theater rather than as a bar/nightclub which puts the emphasis on alcohol. He is concerned with the conditional use passing to another owner.
Sandler said in most cases, they already have permission to serve alcohol. The only reason they put "bar" in the application is some instances where they may need to have it.
Hanson can appreciate the altruistic gesture of making a venue people can afford to use, but why doesnít he just make it a commercial space? Sandler thought it was time to give something back. Also, he thought it would bring attention to the neighborhood and attract people to the Marketplace and take some pressure off the downtown. He wants to help struggling artists.
Chapman said this has the feel of an "unconditional" conditional use permit that is kind of a back door zone change. Sandler said he canít run a theater or jazz festival closing at 10 p.m. or 2 p.m. He wants a realistic time frame allowing certain venues to function. Chapman said the purpose of E-1 states "having a minimal impact on surrounding uses". That doesnít square with having unlimited hours of operation. Sandler has said he doesnít want a one year trial period. Sandler is scared of the process. He canít afford to have the Commission limit his hours after a year. The concern seems to be what will happen when events are over. They are completely surrounded by commercial property. It is probably 200 feet to the nearest residence. If there were apartments, he could understand.
Fields recalled that in the original application, Sandler planned to do an outdoor marketplace in the pavilion, not that he wanted to enclose it. Sandler said until he found out later that sound was a problem, he had not planned to enclose it.
Fields said he owns the property across the railroad tracks. His intent is to have at least 12 to 20 housing units. Hopefully there will be more residences in the area than there are now. He canít imagine the kind of housing that would be there where it would be a conflict. Fields noted Sachsí letter indicates people wonít want to live in the neighborhood anymore because of the transition.
McLaughlin noted that Fields stated he owns property nearby. In participating, does Fields have any conflict? Fields stated he would never be against the use because of future development. He was trying to clarify there would be more residential in the future. McLaughlin reminded the Commissioners that if anyone owns property nearby it should be declared as an ex parte contact. It is a potential conflict but not a bias.
PHILIP LANG, 758 B Street, said one of his houses is across the street from the A Street Marketplace. He thanked the Commission for raising the issue of continuing hearings at study sessions, and noted that the public is getting very concerned about the lack openness with regard public participation. He referred to his written comments from February 11, 2003. He objects to the proposal based on violation of noise ordinances and times for making noise in Section 18.104.050 C2, C4, C5, and C7. H submitted his written comments. A Variance should be given for only special exceptions. This proposal is not appropriate. The majority of citizens have a right to a quiet, peaceful, residential neighborhood.
CHRIS DEKKER said this is not a nightclub and bar. Kat Wok is an alcoholic specific venue. With this proposal, they are trying to create more of a community performing arts center. They donít want time restrictions because a lot of performances go very late. They may want to do 24 hour vigils. They will continue to do markets. This is not going to be a nightclub where 200 kids are going to be piling into the street. A lot of bands that would attract 250 people perform along the I-5 corridor and there is no place here to perform and this is a great space. The armory is too large. He likes the performing arts space connected with the marketplace. There is a level of consciousness in the mall that attracts him to that space. He has talked to the fire marshal and there will be no fire use during performances. He has talked with a lot of people in the community that really want this place, including Al Teitelbaum (an older citizen). Some of the events he noted are the Healing Arts Fair, Tudor Guild, and community theater.
Chapman said Britt closes at 10:30 p.m. and OSF is out by 11 p.m. It is an E-1 zone and having an entertainment venue with unlimited hours of operation in an E-1 zone is a stretch. If it is going to work, give the Planning Commission some help and put a trial period on it. McLaughlin said it is not uncommon to do a trial period. A CUP is not permanent. Just because there is a one year review, it isnít guaranteed. A one year review is usually to see if anything needs to be tweaked. If things are completely out of hand, that would be done independent of any scheduled review. In that case, Dekker canít see a problem with the one year review. He is concerned about frivolous complaints.
Swales would feel better if Sandler had a CUP for theater use, not bar/nightclub.
McLaughlin said it is a gray area. Dekker is saying there is going to be a band on stage, there will be alcohol sold and there will be dancing going on. It may not be a Kat Wok experience of a smaller more intense venue, but it is not theater in the sense there are people sitting and watching a performance. Dekker is describing more interaction. Is it a nightclub in that sense because alcohol is being sold, entertainment going on, or is it similar to a theater. What Dekker is laying out does not fall under McLaughlinís idea of a theater. For example, the Bowmer Theater has fixed seats and no dancing.
Sandler and Dekker explained they never planned to put in a fixed bar. Alcohol sales would be catered.
Goldman said the distinction in the code is that "bar" is primarily for the purpose of selling liquor. A bar wouldn't necessarily have an entertainment component. In a nightclub, the primary objective is entertainment, including sale of alcohol. The applicant did not limit their application to theater. They want the latitude to have a variety of uses. The Staff Report has focused on the higher intensity nightclub because of the greatest potential impact. How often that would happen is at the applicantís discretion.
JOANIE MCGOWAN, 138 North Second Street, listed some of the facilities in Ashland. There is the Dorothy Stoop Theater that is rarely available to anyone but SOU and a music theater has restricted use. Carpenter Hall and the Black Swan are both unavailable. The proposed space is a perfect size mid-size. Performers could make some money there. However, they are going to have to have flexibility. They are going to bring in some bands doing the I-5 corridor. Those bands will stop and you can get them for a lower price because they are on their way to Portland. Ashland lacks a flexible performance space for a reasonable price that is well-designed.
MARK URSETTA, 302 W. Nevada Street, said he would be head of production. He is very safety conscious. When "bar and nightclub" came up, he almost vomited. He is involved in the arts. This is a performing arts center. Where do young kids in the community go? It is for all ages. He works for Chris Dekker and is associated with Allan Sandler.
Sandler is concerned with the trial period. What if someone comes in and files a lawsuit and ties it up for years? He does not mind removing the word "bar". He is willing to make the use of alcohol clear in the CUP.
Kistler asked what hours the applicants could live within. Dekker said 4 a.m. and Sandler said 2 a.m.
The Teitelbaum and Sachs letters were in the packet.
COMMISSIONERSí DISCUSSION AND MOTION
Briggs said she is concerned about the unrestricted hours. She would be opposed to anything unrestricted. It means there are no restrictions.
McLaughlin said Dennyís is open 24 hours a day. Croman used to have unrestricted hours. There are different types of uses. The Commission needs to look at the impacts.
Briggs said she is opposed to the application because of the negative letters and her own concerns.
Fields said the Conditional Use Permit is given to the space. We are sending it off to whoever is doing it. He hears what is being said about it being affordable. There is a wide range of what could go on there. If it is really a performance space, by 11 p.m. it should be done. The uses Fields envisions after 11:30 p.m. probably with alcohol and partying will have an impact on the neighborhood. There will be people outside smoking and yelling and screaming and having fun. The police could deal with it. This is still a small town. Unrestricted use is basically trusting people, skills and their ability to manage. He would be willing to consider 12 nights a year with later hours.
Dotterrer suggested approving this use with restrictions. He understands there are some venues where alcohol will be served.
Briggs said we are going by what the applicant brought to us. He brought a package. There is a need, but it is not at this space.
Kistler said this is an E-1 zone with a residential overlay. In any zone in the city there is going to be an adjoining zoning district. This looks like it is fairly well buried in the middle of the employment use. If it doesnít go there, where would it go? It sounds like it is community performing arts center not a bar.
Swales said there are special permitted uses in an E-1 zone that already place restrictions. It is only fair that the residential overlay is taken into account. He believes there is room for a compromise. The big problem is with the bar/nightclub (alcohol use) in such close proximity to the residential neighborhoods. The Staff Report does not give any information showing that the extended hours would have any more impact than the previous application. He believes there is more impact.
Dotterrer asked if there was an issue with noise from the parking lot and patrons outside the pavilion.
Chapman wondered how much restricting is the Planning Commissionís responsibility.
Swales is not sold on a one year trial period. He would like a Condition that is dependent on the enclosure. If it is enclosed he could see extending the hours until midnight and take out the bar use.
Dotterrer agreed with the restrictions. He agreed to later hours (12 to 2 a.m.).
Morris would like to see the bar go away. His concern is the evolution of the railroad district. He would like to see some type of performance venue but with acceptable defined hours.
Briggs still feels it is up to the applicant to repackage this and come back.
Fields suggested 10:30 to 11 p.m. on weeknights and midnight on Friday and Saturday.
Hanson would be agreeable to midnight seven days a week.
The applicant indicated he wants a decision.
Swales said the way they draft this will set a precedent for other people that might be waiting in the wings.
Briggs moved to deny Planning Action 2003-006. There was no second to the motion and the motion failed.
Chapman moved to approve Planning Action 2003-006 with the following Conditions. That performances on Friday and Saturday to end at midnight and Sunday through Thursday, the performances can go no later than 10:30 p.m. Six times a year they can apply to have a performance end at 2 a.m.
Briggs feels that is confusing. Dotterrer agreed it should be as clean as possible. Drop the "bar" use. He believes it should state the pavilion will be enclosed. Chapman withdrew the "six times a year". Dotterrer seconded the motion.
Goldmanís wording reads: That upon enclosure of the pavilion space, that no Conditional Use of the pavilion space shall be permitted past 10:30 p.m. Sunday through Thursday and 12 a.m. Friday and Saturday. An additional Condition to read: In no case shall the pavilion space be utilized as a bar independent of entertainment uses. The last Condition: That all requirements of the Ashland Fire Department, including but not limited to installation of a fire sprinkler system within the enclosed pavilion be approved prior to issuance of a Certificate of Occupancy. McLaughlin clarified it is not just the Fire Department they have to comply with but the Building Department too. The Fire Department cannot require sprinklers unless the code requires them. Chapman removed the one year review. He amended the motion to remove Condition 3. Dotterrer seconded the amendment. The motion carried with Morris and Briggs voting "no".
ADJOURMENT- The meeting was adjourned at 8:55 p.m.