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Planning Commission Minutes

Tuesday, June 13, 2006





JUNE 13, 2006


CALL TO ORDERVice Chair Michael Dawkins called the meeting to order at 7:05 p.m. at the Civic Center, 1175 E. Main Street, Ashland, OR.


Commissioners Present:


Council Liaison:

Michael Dawkins

Mike Morris

Olena Black


Kate Jackson (Council Liaison, does not attend Planning Commission meetings in order to avoid conflict of interest.)

Tom Dimitre



John Stromberg

Pam Marsh


Staff Present:

Bill Molnar, Interim Planning Director

Dave Dotterrer


Maria Harris, Senior Planner

Mike Morris


Sue Yates, Executive Secretary




Absent Members:



John Fields




PRESENTATION - Dawkins presented a certificate and gift of appreciation to Russ Chapman for his years of service and dedication while serving on the Planning Commission.


APPROVAL OF MINUTES AND FINDINGS - Marsh/Dotterrer m/s to approve the minutes of the Regular Planning Commission meeting of May 9, 2006.  Voice Vote:  Approved.


Stromberg read Condition 22 from the Methodist Church Findings to the Commissioners to make sure everyone understood what it meant.  Change “design” to “designed.”  Molnar thought the Commission meant the applicant could go six feet straight up or they could terrace it so there will still be six and one-half feet of vertical change from the top to the level of the play area.  Add the word “not” to Condition 21 - “Insure there is ‘not’ a way to move…”  Dotterrer/Marsh m/s to approve the Findings for PA2006-00453.  Voice Vote:  Approved.



ART BULLOCK, 791 Glendower, explained the Dolan case.  The U. S. Supreme Court articulated a rough proportionality test.  “No precise mathematical calculation is required but the city must make some form of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”   For example, if traffic or water is a problem, the Commission must mitigate that particular problem and it can’t be used as an excuse to get something else.  There must be a finding of damage to the public interest.  There must be a clear nexus from the damage to the remedy.  The remedy must be roughly proportional to the damage found.  Anything else violates property rights under the United States Constitution, Bill of Rights, Fifth Amendment.  Bullock said we need to protect public interest and we need to do it without violating private property rights.


Marsh thought in the future it should be made clear that the Public Forum is not to be used for people who are making an indirect but very clear comment on an item that is on the agenda as opposed to a public comment unrelated to the agenda.


BRENT THOMPSON, 582 Allison Street, said there will be a meeting on Wednesday, June 14th at 1:30 p.m. before the Jackson County Board of Commissioners (Auditorium) to discuss the remand for the Clear Springs Destination Resort.  He feels this proposal would offer Ashland nothing except traffic and water problems.  The development is 255 acres and 110 houses. 


Stromberg said he planned to attend and would leave from the Siskiyou Room at 12:50 p.m. if anyone would like a ride.


Molnar spoke to the County today.  LUBA remanded the plan back to the County.  The Board of Commissioners is going to evaluate eight issues of remand.  The County ordinance allows for a plan to be good for three years and after three years it can be revoked.  Molnar is looking at submitting comments from the City.


JOANIE KELLER HAND, 652 Faith Avenue and TOM KATSANTONES, 1052 Paradise Lane submitted written comments concerning a flag drive and partition.  Katsantones would like to have the Commission look at the flag lot interpretation handed down by the City Attorney and consider the options they have proposed with regard to the front property line. 


Molnar suggested Katsantones contact the Planning Department if they wish to pursue the interpretation of what the front yard is on a flag lot. 







Site Visits and Ex Parte Contacts – Morris had a site visit and saw a former planning commissioner but they did not discuss this action.  He spoke to his neighbor, Randall Hopkins and they talked about Bullock’s street improvement memo.   The other Commissioners had a site visit.



Harris said the revised proposal will be discussed at this meeting.  The applicant is requesting to subdivide the parent parcel into 20 lots (Outline Plan) and an Exception to the Street Standard for the sidewalk on both Otis and Randy Streets.  The revisions are outlined in the Staff Report. 


The issues brought forward from the March 14, 2006 meeting were as follows: 

1.                Hot Spring – Is there concurrence with the Commission that the springs is a natural feature?  Is it significant and should it be preserved in open space, common area or unbuildable area?

2.                Laurel Street Sidewalk Improvements – The Local Improvement District is planned for the 2007-2008 year.  It is partially funded by the LID.  The Engineering Department is submitting a grant to fund the project.  The grant would cover 90 percent of the project and an LID would not be used.  A copy of a memo from the Beth Lori, Assistant City Attorney, was distributed to the Commissioners.  Her memo said the Subdivision ordinance does not require that the applicant to sign in favor of the Laurel Street LID or pay any upfront costs.  This does not mean the Planning Commission cannot look at necessary Laurel Street improvements as part of this subdivision. 

3.                Randy Street Sidewalk Improvements – Staff has suggested that a portion of the sidewalk be brought down to the curbside to preserve the existing home.  (Condition 8) 

4.                Driveway Access to Lots 13 and 14 – The current configuration shows a shared driveway that comes in front of Lot 13 and goes to Lot 14.  It eliminates the front yard to Lot 13.  Staff has suggested a different configuration (Condition 10)


Black wondered about extending the sidewalk to Drager Street.


Stromberg said there is no mention of the hot spring in the packet.  However, a whole packet has been handed out tonight.  He has not had a chance to study it.  Harris said Staff has not an opportunity to look at the information either.


Molnar said with regard to the wetland mitigation, the Commission can ask the applicant to retain the wetlands as is and work the development around them.  There are no local standards to guide in mitigation.  It is reviewed under the State fill and removal permit process.  The State is first looking to mitigate on-site.  Once approved, there is a monitoring requirement.



DEVIAN AGUIRRE, 570 Clover Lane, reviewed the proposal using a PowerPoint presentation.  They felt it was important to design the project in such a way so the spring box and pool house are joined together in perpetuity.  The existing house and pool along with its water source will remain and are not a part of the development in the sense there will be no active construction on that parcel but some landscape maintenance.  They agreed to a sidewalk along Randy and Otis Streets.  They have not asked for any water rights from the well. 


CHRIS HEARN, 515 East Main Street, the applicant’s legal counsel, apologized for the materials coming in late.  He submitted a letter from a water law expert, Steven Shropshire, Jordan Schrader, Attorney at Law in Portland responding to the idea of a conservation easement.  The well is probably a natural feature of the project as a whole.  It is part of the subdivision.  They have tried to identify the well as a natural feature.  They presented the idea of preserving the site with a conservation easement for the well and preserve the water source in perpetuity.  In the future, the well could be parlayed into something to benefit the City such as re-opening a bath house or making use of the geothermal resource. 


KERRY KENCAIRN, 545 A Street, Suite 3, said the Southern Oregon Land Conservancy discussed the possibility of a conservation easement and the Executive Director is investigating the possibility of preserving the hot spring.


What are the responsibilities and rights of the beneficiaries of the conservation easement, asked Marsh.  To what would they be entitled?   Marsh said the owners of Lot 18 hold the right to the water.  How would we move from having the water rights of Lot 18 to having the water rights as an asset of the subdivision?  Hearn said there are no documented water rights, though the conservation easement holder or property owner could apply for those rights.  Marsh said to get control of the resource would require agreement from the future owner.  The Conservancy would be protecting the water rights that belong to someone else.  Marsh asked if the applicants would consider a Condition as follows:  “At the point when Lot 18 is suggested to be redeveloped that control of the water rights be offered to the subdivision.”  The applicants responded that they are interested in protecting the resource in its current form. 


Black expressed a concern that the applicants do not have water rights to the well.  Are they authorized to use the water? Aguirre said the Water Master has said it is not a problem to obtain a water right for the well source.  She said there are two ditch swales (surface flow) flowing to the large wetland area but the large wetland area is fed by its own springs.  The water rights are intact.  No one really knows the source of some of the water on the property.  KenCairn said to mitigate a wetland, one does not need to have a water right.  It is transferring a wetland in place for a wetland in another place.  The wetland exists on its own.


Morris wondered if it would still be possible to use the geothermal if the hot spring has a conservation easement.  Aguirre said they reserve the rights for the subdivision to use the geothermal.  The well is between 750 and 1000 feet deep.  It is yet to be determined if they can get enough heat to provide geothermal heat.  It has been a documented well as far back as they can find.  They have no proof it is a spring. It’s always been called a hot well.  Hearn said the well has been identified as a significant feature of the site.  Therefore, it needs to be rendered unbuildable.


Marsh asked if the applicant had an objection to Staff’s recommendation for the driveway for Lot 14.  Aguirre said she does not want to see the old piping disturbed.  They don’t want to risk damaging the resource.  They will work with Staff to configure a driveway access.  KenCairn said they agree to do curbside sidewalk on Randy.


ANYA NEHER, 524 Drager Street, said she was dismayed to learn there might be a development on the property.  She believes the whole field is a significant natural resource.  She urged the Commission to take more time to make their decision. 


STEVE ARMITAGE, 205 Randy Street, said he has lived in his house across from the proposed development for 30 years and though he is neither for nor against the development but believes it meets all the applicable criteria.  He feels the Commissioners have everything they need to make their decision.  He would oppose returning the large structure to its original structure or to re-zone the property.


DR. MARGARET STAHLER, 1875 Hwy. 99 North, #2, formerly lived at 537 Drager Street, said she objects to the density of the project.  The ten houses across the street from where she used to live will have virtually no yard. Two of the proposed lots would fit into one lot across the street.  The hydrology on the land is unique.  It is mineral water and unlike other wetlands in the City.  The wetlands on the north will not be used by the public.  Wetlands are defined by soils, hydrology and plants, not by rainfall.  Stahler is concerned with traffic.  She noted that none of the tribes consulted about the land were local or Rogue Valley based.


DAVID CHASMAR, 468 N. Laurel Street, said he opposes the project as it stands.  He believes just to have a geothermal vent in his own neighborhood is significant enough to deserve special status.  Why did someone choose to hand dig a well unless they thought it was obvious the water source was as spring?  They can’t ignore the historic use of the site.  He read from the Comprehensive Plan, Section 129, Historic Preservation – “Many…sites...are of historic interest…  These resources represent a unique part of Ashland.  The…protection and preservation of these resources is critical in maintaining Ashland’s cultural integrity and attractiveness.”  He continued with Wetlands, Section 415 – “Wetlands are among our most valuable natural resources, yet are often…endangered.  Wetlands have numerous valuable functions which justify their preservation economically, socially, and environmentally.”  This is not a good place to build houses that are shoe-horned into a site. 


LIJA APPLEBURY, 704 Willow Street, read from a Water Resources Department guide stating all water is publicly owned with some exceptions.  Land owners with water flowing past, through or under their property do not automatically have a right to use that water without a permit from the Department.   


CINDI DION, 897 Hillview Drive, said now that there are further designations of wetlands, she is very concerned about the mitigation process of this significant natural feature.  The building envelopes need to be moved off the wetlands.  We don’t need to dig up the wetlands and move them.  The Commission needs to address the drainage of the sulfur springs – the drainage ditch runs over the curb into Randy Street.  Even installing a curbside sidewalk along Randy will require filling a portion of the wetlands.  Will there be mitigation?  If so, she is opposed.  How will the street trees grow in the wetland area?  She believes the public should be aware of all the materials presented prior to the time of the public hearing.


BRENT THOMPSON, 502 Allison Street and LANCE BISACCIA, 302 Cambridge, gave their time to Art Bullock.


ART BULLOCK, 791 Glendower, said there are significant documents that are not in the public record.  He has not seen them nor had access to them.  He objects based on the right to review and rebut.  The conservation easement came up yesterday and this is all hypothetical.  There is nothing in the documents about water rights.  He requested that be remedied. 


He gave the Commissioners a handout that is an update to the document dated June 8, 2006 (Some Proposed Findings And Conclusions For Helman Springs Development) and went over each item with the Commission.  The Commission needs to distinguish hot spring and cold spring.  He does not agree it is an artesian well.  The spring is a natural feature as is the water because of the high mineral content and because it is almost devoid of human contact.  Bullock showed slides of the area between Lot 18 and the street.


With regard to traffic affects, he said the code requires that all major means of access be improved.  It doesn’t require the developer to pay for it.  It is important the developer pay their fair share under the rough proportionality principle.


Staff Response

Molnar said the applicants have identified an additional wetland on the property next to the metal bath house building but have not discussed their plans for it.  He said one option would be to include it in the conservation easement area. 


Marsh said the code defines unbuildable area as all areas outside building envelopes and within an open space.  Open space is defined as a common area used for common use of the members of the homeowners’ association.  There can’t be an unbuildable area unless it is within the common open space, correct?  Molnar said he could not recall a time when Staff has encountered a natural feature (spring) that tends to move over time.  In the past, open space that is under control of the homeowners’ association has generally interacted passively or actively (a wooded area, a wetland, a grassed open space for play).  He is not sure what the interaction of the homeowners’ association would be with a well.  Harris said in past actions, the natural resources were above ground and didn’t move.  This is largely an underground resource and appears in past years it might have been above ground or moved around.  Molnar said, in other words, that it would have to be an open space that is a common area that is usually under the control of the homeowners’ association. 


Based on public testimony, Black understands all water is publicly owned, the applicant needs a permit and the water feature (hot well) is a public amenity, not private.  They don’t have water rights and that seems like a significant change to the whole application because they want to mitigate something for which they don’t have rights.  Molnar said the water is public in that water is considered water of the State.   


Molnar said just today he came across a City of Ashland Geothermal Study from 1983.  It talks about the Helman Baths site and springs (near the area identified) close to the surface level, but they don’t talk about it spreading over the surface. The applicants have agreed this is a natural feature. 


In response to public testimony, Harris said the yard dimensions shown on the building envelopes on the site plans are the standard setbacks for this zoning district.  The density of the parcel is 19.53 units and using the Conservation Density brings it up to 22 units. They are proposing 18.


Rebuttal – Aguirre explained that yesterday they asked for a legal determination from the City regarding the existing feature.  Molnar said the Legal Department has not yet put anything in writing. 


SCOTT ENGLISH, Northwest Biological, 324 Terrace Street, noted the State will not accept mitigation if it doesn’t meet their requirements.  The source of the irrigation water comes from the Helman Ditch and mineral springs on the property. 


ROBERT COFFIN, Senior Hydrologist, Cascade Earth Sciences, 225 S. Holly Street, Medford, said the information provided to the Commission tonight is a preliminary assessment based on a site visit and review of a nearby well log.  He concluded, based on this information, it is unlikely the real estate development at the surface will have a significant impact on the cool or hot springs. However, there is some potential for the springs to impact the development.  The springs are there and they will continue be there.  The springs may be a potential resource.  With regard to the water quality, he doesn’t have data, but just because a spring is hot, doesn’t mean it has a particular mineral content. 


CHRIS HEARN said the applicants have proposed protecting the resource and still meet the family’s legacy concern with a conservation easement.  There would be no development on the source, there could be a potential for future use or development of the well itself for a bath house or geothermal, but that would be monitored by someone like the Southern Oregon Land Conservancy and the homeowners’ association.  Hearn explained that the applicant’s concern is what the homeowners’ association would do if it was a public resource. 


Stromberg wondered about having the wellhead on common open space, making the beneficiaries of the conservation easement the existing owners of Lot 18.  The homeowners’ association could do anything they want with it as long as it didn’t infringe on the rights of the property owner.  Hearn said there are liability concerns.  Hearn said it would be acceptable to the applicant if the well was in a common area and just the owner had the easement right to use the water. 


Molnar asked what the applicants plan to do with the wetland on Lot 18.  English said if the sidewalk is installed, and they want it done immediately, the wetland will have to be mitigated.  If the sidewalk is not installed immediately, the wetland still exists.  Part of it is on the City right-of-way.  When there is a mitigated wetland it is protected by a deed restriction.  That is the protective mechanism. The hot well would be considered Waters of the State.  If there is no impact, there is no permit (mitigation) required.  The water flows into the pool, it is not pumped.  It overflows the pool into the storm drain and into Bear Creek.


Coffin said you can take the heat from the water without even touching the water resource.  


Black/Dotterrer m/s to extend the meeting beyond 10:30 p.m.  Voice Vote:  Approved.



Stromberg/Dotterrer m/s to approve this application with the added Condition that the applicants incorporate the wellhead in an open space area with access to all members of the homeowners’ association and that the homeowners’ association give a conservation easement to the owners of Parcel 18 that allows them to have the existing uses that they currently enjoy. 


Stromberg thought the conservation would be considered in perpetuity.


Morris asked if this is under ownership of the homeowners’ association, who pays to maintain it and who is liable.  It seems complicated to split the ownership yet the usage of it goes someplace else.  If they find the source for geothermal, it seems more complicated, ambiguous and undefined.


Molnar suggested the Commission look at the points provided in the letter from Shropshire.  Stromberg thought Staff could work out the details.  Molnar said not only would the Commission want the current property owner to have use of the well but also maintain the water resource.  If the owners decided they didn’t want to use it anymore, the homeowners’ association could just cap it off.  Stromberg said the goal is that the well is going to be permanently in some way beneficial to the entire homeowners’ association while ensuring the existing rights of the owners of Parcel 18.


Molnar said when they met with the applicants, they did not feel it was a good idea to write a conservation easement at the Commission level but try to find out what the Commission would want to be included in an easement and the City Attorney would write the final easement and it would be part of Final Plan.  Final Plan is heard as a Type I. 


Dawkins said when the easement is written, he would like to see the source go into common ownership, protecting and continuing the historic use. 


Molnar said a Condition could be added that before signature of a final survey plat, that the water rights are obtained. 


Marsh, with regard to the conservation easement, asked if this well or spring is a natural or existing feature. It has to be included in the Performance Standards.  What is the natural or existing feature?  She does not feel it is connected to the bath house.  She is comfortable defining the natural feature as that area around the spring box as the source of the resource.  The feature is not the spring box but the resource that comes out of the spring box.  The advantages of controlling that resource are geothermal energy and the actual water.  If we give the water rights in perpetuity to Lot 18, the significant resource that is available at the spring box, there is no guarantee they will ever be available to the other 17 lots, yet those people are going to be responsible for a tiny plot of land with a box in the middle of it.  Someone will have to mow it and trim around the well.  What is the advantage to those living there unless they have, on the long term, some opportunity to actually acquire access to the resource?  She suggested pairing the conservation easement with some sort of suggestion that at the time that Lot 18 is developed, that members of the actual development will have the opportunity to gain access to the resources that come from the spring box. 


Stromberg said there may be some rights that the whole homeowners’ association could use right away such as the geothermal.  The homeowners would have to figure that out and prove that it did not take away the water used by the current owners of Lot 18.


Marsh would like to ask the applicants to work out the language for a conservation easement with language that shows how members of the development can have potentially some opportunity to control the resource. 


Morris suggested adding to Condition 32 that if anything changes regarding the well, the homeowners have some input.  The water shouldn’t be the issue.  The ordinance says open space cannot be modified except for recreation purposes.  If the well area is designated as open space, is it legal to modify the well to put in a heat extraction system? 


Stromberg suggested that all the rights belong to the homeowners association except for the specific things that are currently enjoyed by the existing owners.  Then the homeowners’ association can figure out what to do with it as long as it doesn’t impinge on the specific right that has been granted.


Harris understood Stromberg to say that Condition 33 would state:  That the applicant shall incorporate the wellhead in an open space area accessible to which all homeowners’ association members have access and the homeowners’ association give the conservation easement to the owners of Parcel 18 that allow current uses to continue in perpetuity.  And that the wellhead not be in open space but when Lot 18 is developed the homeowners’ association shall have use of the water resources from the spring at the wellhead. 


Marsh said without the possibility of water rights, she does not support making the homeowners responsible for a parcel of land that has nothing but a wellhead on it.  If Stromberg agrees and we incorporate a long-term option of getting the water rights so having the responsibility for the well means something, she could agree.


Stromberg is thinking there is a lot more water going through the system than is needed for the pool.  For some reason, the current owners cool the water.  The water rights could go to the homeowners’ association and we just extract from that the specific things the current owners are enjoying and want to continue enjoying in perpetuity. 


Harris is getting confused with “incorporate the wellhead in an open space area accessible to which all homeowners have access” as it is not the same as having water rights.  She said everyone seems to be going in the direction that the homeowners’ association should have water rights and Lot 18 should maintain what they have.  Is there agreement on whether the wellhead should be physically located on a separate open space parcel?  Stromberg affirmed.


Marsh said the applicants have been very clear that they want to maintain all the water rights.   


Dimitre believes there is a lack of information.  The Commission is not sure what the property owner will accept as a condition.  He would like Staff to look at this and give the public a right to comment.  He has concerns about the wetland mitigation.  Wetlands are disappearing across the U.S. at a rapid rate.


Black/Stromberg m/s to continue the meeting past 11:00 p.m.  Voice Vote:  Approved.


Black said she is reluctant to accept the site plan and lot layout.  There might be a better way to lay out the lots considering where the wetlands are located.


Marsh suggested Staff and the applicants re-work the conservation easement.


Stromberg withdrew his motion.


Marsh suggested a continuance.  She likes the site plan, lot layout, alleys, minimization of the curb cuts and the pathways. 


Dotterrer/Marsh m/s to continue this action in two weeks at the study session (June 27th) and have Staff and the applicant come back with a detailed description of what the conservation easement would entail or equivalent condition that would describe what the conservation easement would be. 


Dawkins re-opened the public hearing.  He announced PA2006-00078 will be continued in two weeks on June 27, 2006 at 7:00 p.m. at the Council Chambers, limiting the discussion to clarification of the conservation easement.  Dawkins closed the public hearing.


Roll Call:  The vote was unanimous.


ADJOURNMENT The meeting was adjourned at 11:20 p.m.


Respectfully submitted by

Sue Yates, Executive Secretary


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