Agendas and Minutes

Planning Commission (View All)

Special Meeting

Thursday, November 06, 2008

NOVEMBER 6, 2008

Commission Chair John Stromberg called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers, 1175 East Main Street.

Commissioners Present: - Staff Present:
John Stromberg, Chair Bill Molnar, Community Development Director
Michael Dawkins Maria Harris, Planning Manager
Mike Morris April Lucas, Administrative Assistant
Pam Marsh
Melanie Mindlin
Dave Dotterrer
Michael Church
Absent Members: Council Liaison:
Tom Dimitre Cate Hartzell
Debbie Miller

Community Development Director Bill Molnar reminded the Commission of their December 18, 2008 Study Session. He also announced the City Council Public Hearing on the Water Resource Protection Zones Ordinance has been tentatively scheduled for January 20, 2009.

No one came forward to speak.


A. Water Resource Protection Zones Ordinance
Staff noted the following items were submitted to the Commission at the beginning of the meeting:
Memo from Parks & Recreation Director Don Robertson which listed questions and concerns about the use of herbicides, equipment weight restrictions, vegetation replanting requirements, and annual reviews.
Email from Eric Bonetti questioning where the centerline would be measured for creeks with more than one channel.
Email from Councilor Hartzell regarding the herbicide issue.
Emails from Commissioner Miller.

Stromberg noted the discussion outline that was used at the last meeting and clarified they would pick up where they left off.

Enforcement & Penalties
Planning Manager Maria Harris stated language was added that references the General Penalties section of the Ashland Municipal Code, which outlines the procedure for citations and fines. This section also includes language requiring an owner to re-establish the natural condition when a water resource protection zone is illegally altered and language that allows the court to impose additional fees for enforcement costs incurred by the City.

Comment was made questioning how this would be enforced, and whether penalties for intentional violations would differ from accidental incidents. Suggestion was made that staff should attempt to work with the property owner to remedy the situation before issuing a citation.

Mr. Molnar clarified this ordinance would be enforced by the City's Code Compliance Officer. City Attorney Richard Appicello commented on the General Enforcement section of the Ashland Municipal Code and clarified the maximum fine that can be applied according to the City Charter is $500; however, the Commission could set a minimum fine for intentional activities if they desire.

The Commission discussed the proposed language. Concern was expressed with the requirement that regardless of the violation, the property owner is required to submit a mitigation plan prepared by a natural resource professional. Staff acknowledged the Commission's concerns and suggestion was made to modify Section 18.63.140(B) to read, "Within thirty days (30) of notification by the City of Ashland Planning Division of a violation of unauthorized alteration of native vegetation or disturbance of land, mitigation shall be required, and the staff advisor may require a mitigation plan prepared by a natural resource professional." The majority of the Commission indicated support for this section as modified.

Removal of Invasive Vegetation
Ms. Harris noted Ecologist Jeannine Rossa's testimony that it is safe to use glyphosate without surfactants in the riparian area, and Mr. Robertson's concerns that this ordinance might prohibit the Parks Department's use of herbicides. Staff indicated a compromise might be to allow use of this type of herbicide only if it is applied by a trained professional. Ms. Harris noted the report on Managing Himalayan Blackberries that was sent out to the Commission and clarified the findings indicate the most effective treatment for blackberries is mowing or cutting down the canes and then treating them with herbicide. She stated this report makes the case that it is better to remove blackberries in riparian areas and replant with native vegetation since blackberries do not provide significant shade, have shallow roots, and don't allow any new trees or shrubs to be established in the area where they have taken over.

Dawkins voiced his opposition to the use of herbicides and commented that DDT is a good example of a product that was suppose to be really good, but turned out to be harmful. He also disagreed with the proposed removal approach and stated in his experience, the most effective way to eradicate blackberries is to cut them down and dig out the roots. He also shared his concerns regarding bank instability once the blackberries are removed.

Stromberg noted the email submitted by Councilor Hartzell and asked if the Commission would allow Hartzell to share her input. Staff recommended the public hearing be re-opened if the Commission wants to allow her to speak.

Stromberg re-opened the public hearing at 7:44 p.m.

Councilor Hartzell noted the testimony from Rick Landt who told the Commission about successfully removing blackberries manually. She also noted a study that found that blackberries can come back after herbicide application. She clarified her email spoke about toxicity and how it affects waterways and noted the proposed ordinance is suppose to protect the water and habitat; blackberries should not be the main objective.

Stromberg asked if anyone else wished to provide testimony and then closed the public hearing at 7:47 p.m.

The Commission continued their discussion on whether to permit herbicide use. Mindlin noted the ordinance requires a Type I application approval before herbicides can be used. She commented on trying to find a compromise to the issues raised and suggested the ordinance be modified to include the following: 1) only allow glyphosate without surfactants herbicides, 2) application of the herbicide could only be done by a certified professional, 3) include a limitation on the number of re-applications (herbicides may be applied for initial eradication, but should not be used as an ongoing maintenance plan), and 4) include language that encourages repeat mowing as a method for removal. Dawkins indicated he is against the use of herbicides, but is willing to compromise and is comfortable with Mindlin's suggested amendments. Staff clarified the Parks & Recreation Department would be required to file an application; however, it may cover a longer period of time. It was also clarified the cost for a Type I application is approximately $900. Dotterrer expressed concern with this cost. Marsh commented that this would discourage homeowners to use herbicides to remove a minimal amount of blackberries, but would allow herbicide use in the more extreme situations. Comment was made questioning how the Parks Department applies herbicides and some concern was expressed with spraying rather than dabbing on the product. Mr. Molnar commented on the expenses associated with a Type I approval process, including the noticing requirements and the staff time spent responding to citizens. He also noted there is a provision in the ordinance that allows the fee to be reduced for restoration enhancement activities. Ms. Harris re-stated the four proposed amendments outlined by Commissioner Mindlin and the majority of the group indicated support for this section as amended.

Hardship Variance
Ms. Harris indicated the ordinance is required to include a hardship variance. It was clarified this would be a Type II action and would come before the Planning Commission for approval.

Creeks with More than One Channel
Staff was asked to respond to Mr. Bonetti's email questioning where the centerline would be measured for braided creeks. Staff indicated the ordinance is currently silent on this issue, but they could include language if the Commission desires. Mr. Molnar commented on how other communities address this issue and stated in these instances measurement is typically taken from the center of the braid. Support was voiced for clarifying this in the ordinance. Mr. Molnar noted there are situations were there is a dominant channel, and there may be a need for judgment in some cases. Suggestion was made to include language that indicates where there is an unusual creek bed, staff will visit and evaluate the site. The Commission voiced support for including language to this effect in the ordinance.

Setback Issues
Stromberg reviewed the setback issues listed in the discussion outline. Staff clarified the reduction provision associated with 18.63.080 states up to 50% and only the minimum amount needed would be granted. Comment was made questioning whether staff would be allowed to take the size of a house into consideration when determining the appropriate reduction. Mr. Molnar clarified staff generally does not take into account the size of the house, but evaluates the size of the buildable area outside the protection zone. He added the ordinance states any adjustment to the protection zone would only be the minimum amount necessary to accommodate the use. Ms. Harris commented on the Top of Bank issue and clarified the ordinance was amended to include physical characteristics to help identify top of bank.

Activities Issues
Stromberg reviewed the activities issues listed in the discussion outline. Ms. Harris clarified the replanting standards were changed to indicated a minimum plant size of 4 inches for ground cover, the in. caliper for tree size was removed, and the requirement to identify the plant sources and suppliers was removed. She added staff did not make any changes addressing the canopy tree planting configuration. Recommendation was made to include language that provides staff the ability to approve a different configuration so long as the canopy issue is addressed. Ms. Harris noted the previous language that was inserted into the ordinance and suggested they reinsert the following statement, "Canopy trees shall be planted at 20 ft. intervals or such other interval as required to install materials required for tree mitigation " Support was voiced for replacing this language as suggested by staff.

Council Liaison Hartzell left the meeting at 8:50 p.m.

Comment was made questioning the ability for backyard food production in the riparian zone. Staff clarified this would be permitted in the 50/50 zone. It was also questioned if a property owner would be permitted to protect this area with fencing. Mr. Molnar commented on the floodplain regulations and stated solid fences are restricted within 20 ft. of the floodplain. It was questioned if other types of fencing might be acceptable in riparian areas. Ms. Harris stated the idea is for fencing to be generally prohibited, but they could make an exception for deer fencing in specific cases. The Commission discussed what type of fencing might be acceptable and where it could be located. Comment was made that this issue also pertains to people who might want to install fencing for other reasons besides garden protection in the riparian zone. There was agreement among the Commission to prohibit solid wood fencing and Staff was directed to develop ordinance language that would permit open fencing in the 50/50 use area.

The Commission continued their discussion of the activities issues and whether the ordinance should restrict a property owner from rebuilding a structure in the same location if it has been damaged by a flood for the second time.

Comment was made that such a provision is not necessary and if someone's house is washed away twice, they are not going to want to put it back in the same place if they can avoid it. Dawkins noted that he can't remember a single case since 1955 where this has been a problem.

Apply Proposed Ordinance to Specific Sites
Staff commented on two sites the Commission visited during their site visits. In regards to Mr. Brambacher's property on Tolman Creek Rd, he will be able to continue to manage his property as is. However if he wishes to make changes to the channel, that would trigger the requirements of the proposed ordinance. And in regards to the Duncan's property, this ordinance is not going to affect the landscaping work they have already completed. They will be able to leave their landscaping in place and maintain it.

General Issues with the Ordinance as a Whole
Stromberg read the issues listed on the discussion outline aloud. Staff provided clarification that the concerns raised by the Public Works and Parks Departments have already been addressed in the ordinance. Mr. Molnar added the Planning staff will continue to keep these departments abreast as this ordinance moves forward. The Commission briefly reviewed the remaining issues and no changes to the ordinance were proposed.

Commissioners Morris/Dotterrer m/s to extend meeting to 9:45 p.m. Voice Vote: all AYES. Motion passed.

Recommended Additional Programs or Actions
Mindlin provided an explanation of the stormwater infiltration and rainwater catchment issues and read aloud her proposed recommendation which was submitted to the Commission at their last meeting. Comment was made that this language may be too specific and recommending the Commission make a more general recommendation to the Council instead. Marsh suggested they include a note to the Council explaining this issue came up and the Commission agreed that while this issue is much broader than the scope of the ordinance, it should be placed on the City's agenda. Mindlin felt this language was too vague and voiced her preference to use the language she drafted instead. Suggestion was made to take Mindlin's language and add Marsh's proposed statement to the end. The Commission voiced their support for this combination.

Mindlin commented on her second recommendation which addressed the need for ongoing assessment of the native plant requirement. She recommended the City conduct an on-site review of the projects permitted under this ordinance every three years to determine how well the native plants are performing. Church commented that they may want to recommend that the entire ordinance be reviewed, not just the plantings. Dotterrer noted the Stream & Enhancement Guide (which includes the native plant list) will likely be evaluated and updated periodically, and questioned if they could use this instead of a mandatory site visit by staff. Dawkins questioned if there was a way to bring the Parks Department into this since they have the immediate expertise and may be able to help evaluate. Mindlin clarified she is not attached to the methodology of how this is completed, but does believe this needs to be reviewed. Stromberg summarized the intent of this recommendation is to review not only the native plants list, but also the usability of it in actual situations, and somehow involve the Parks Department with this process. Church suggested an additional recommendation that states, "Three years from the effective date of the ordinance, staff will field check all projects that have been subject to the ordinance and report to the Commission on the effectiveness of the provisions." Suggestion was made to incorporate both of these concepts into one recommendation. Church suggested the language, "Three years from the effective date of the ordinance, staff will field check projects that have been subject to the ordinance and report to the Commission on the effectiveness of the ordinance, including review and usability of the native plants list."

Commissioners Dotterrer/Marsh m/s to extend meeting to 10:00 p.m. Voice Vote: all AYES. Motion passed.

Commissioners Marsh/Morris m/s to recommend approval to the City Council of adoption of the ordinance adding Chapter 18.63 Water Resource Protection Zones to and modifying Chapter 18.62 Physical and Environmental Constraints of the Ashland Land Use Ordinance with the amendments and changes as delineated in the meeting minutes and noted by staff. DISCUSSION: Dotterrer provided an explanation of why he will be voting no on this ordinance. He expressed his concerns with the way this ordinance was developed and felt citizens will find the ordinance confusing and difficult to implement. He voiced his support for staff's efforts, but does not think this is a model for how they should be doing business. He felt the Commission failed to define what the problem was and wished they would have established water quality baselines so that it would have been possible to determine whether or not this ordinance improves the City's water quality. Roll Call Vote: Commissioners Marsh, Mindlin, Morris, Church, and Stromberg, YES. Commissioners Dotterrer and Dawkins, NO. Motion passed 5-2.

Meeting adjourned at 9:55 p.m.

Respectfully submitted by,
April Lucas, Administrative Assistant


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