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HomeMy WebLinkAbout2025-02-11_Planning MIN Planning CommissionMinutes Note: Anyone wishing to speak at any Planning Commission meeting is encouraged to do so. If you wish to speak, please rise and, after you have been recognized by the Chair, give your name and complete address for the record. You will then be allowed to speak. Please note the public testimony may be limited by the Chair. February 11, 2025 REGULAR MEETING Minutes I.CALL TO ORDER: Chair Verner called the meeting to order at 7:00 p.m. at the Civic Center Council Chambers, 1175 E. Main Street. Commissioner Perkinson attended the meeting via Zoom. Commissioners Present: Staff Present: Lisa Verner Brandon Goldman, Community Development Director Eric Herron Derek Severson, Planning Manager Gregory Perkinson Carmel Zahran, Assistant City Attorney Russell Phillips Michael Sullivan, Executive Assistant Susan MacCracken Jain Kerry KenCairn John Maher Absent Members: Council Liaison: Doug Knauer II.ANNOUNCEMENTS 1.Staff Announcements - None 2.Advisory Committee Liaison Reports – None III.CONSENT AGENDA 1. Approval of Minutes a. January 14, 2025, Regular Meeting Commissioners Phillips/KenCairn m/s to approve the Consent Agenda as presented. Voice Vote: All AYES. Motion passed 7-0. IV.PUBLIC FORUM – None V.INFINISHED BUSINESS Approval of Findings for PA-T1-2024-00254, Sutton Place TL 1600, The Oaks of Ashland Subdivision Page 1 of 7 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Planning CommissionMinutes Ex Parte Contact No ex parte contact was disclosed. Deliberations Chair Verner asked if Commissioner Maher had reviewed the January 14, 2025 Regular meeting recording, minutes, and materials in order to vote on the findings. Commissioner Maher confirmed that he had. Commissioners KenCairn/Herron m/s to approve the findings as presented. Roll Call Vote: All AYES. Motion passed 7-0. VI.TYPE II PUBLIC HEARING – CONTINUED A. PLANNING ACTION: PA-T1-2024-00255 SUBJECT PROPERTY: 110 Terrace St. OWNER: Shirley D Patton Trust APPLICANT: Rogue Planning & Development DESCRIPTION: This is a request for a formal interpretation of the Ashland Land Use Ordinance as it applies to how a Peer Respite Home (as defined at ORS 430.626) are regulated. The interpretation requests that the proposed Peer Respite Home in the existing residence at 110 Terrace Street be classified as a similar use to types of Group Living that are permitted in all residential zones, and that such interpretation would provide a reasonable accommodation consistent with the Fair Housing Act and Americans with Disability Act. COMPREHENSIVE PLAN DESIGNATION: Single-Family; ZONING: RR-.5; MAP: 39-1E-09-BC; TAX LOT: 8000 A. Settlement of the Record Chair Verner stated that the Public Hearing had been closed at the January 14, 2025 meeting but that the record had been left open at the request of the applicant to allow for additional comments to be submitted. The Public Record was left open such that only parties-of-record - defined as individuals or entities who have previously provided written or oral testimony on the matter – would be permitted to submit written testimony by 4:30 p.m. on January 22, 2025. Any party-of-record would have until 4:30 p.m. on January 30, 2025 to offer a rebuttal to those comments received by January 22. The applicant would have until 4:30 p.m. on February 7, 2025 to offer final arguments or comments on any materials submitted. Chair Verner asked the Commission to determine whether written testimony received by non- parties-of-record between January 15, 2025 and January 22, 2025 should be included in the record (see attachment #1). Page 2 of 7 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Planning CommissionMinutes Commissioners Phillips/Maher m/s to include written testimony received by non-parties-of- record between January 15, 2025 and January 22, 2025 in the record. Roll Call Vote: All AYES. Motion passed 7-0. Chair Verner asked the Commission to determine whether written testimony received by non- parties-of-record between January 23, 2025 and January 30, 2025, after the record was closed, should be included in the record (see attachment #2). Commissioners KenCairn/Phillips m/s to exclude written testimony received by non-parties-of- record between January 23, 2025 and January 30, 2025 from the record. Roll Call Vote: All AYES. Motion passed 7-0. Chair Verner stated that the applicant had submitted materials challenging four comments that had been submitted into the record and had requested that those comments be stricken or redacted from the record as they contained new evidence(see attachment #3). Commissioner Phillips noted that the Commission had received a request from Rob Patridge to extend the comment period to allow for additional testimony, and asked how an extension would affect the project’s application timeline (see attachment #4). Mr. Goldman explained that a further extension of the timeline could push the application past the 120-day deadline for the City to render a decision, which could result in the application automatically being approved. The Commission determined that the record should not be reopened. Commissioners Phillips/KenCairn m/s to exclude portions of the January 29, 2025 letter from Sydnee Dreyer, an attachment to a letter submitted on January 29, 2025 by Maylee Oddo and Brock Dumont, Exhibit C of a January 30, 2025 letter from Rob Patridge, and the January 30, 2025 memorandum from the City of Ashland Planning Staff. DISCUSSION: Commissioner MacCracken Jain requested clarification regarding Mr. Patridge’s January 30 submittal and his contention that it should be retained in the record. Mr. Goldman responded that Mr. Patridge had submitted a records request to the Oregon Health Authority seeking information regarding the applicant’s project, but had not received the requested information until January 24. Mr. Patridge argued in a February 11, 2025 letter to staff that the information he submitted on January 30th should be included in the record since the lateness of the submittal was outside of his control, and because the information contained within was already known to the applicant. Mr. Goldman pointed out that, while this information was known to the applicant, it was not known to the Commission, and thus constituted new information submitted into the record after the January 22 deadline had expired. Roll Call Vote: All AYES. Motion passed 7-0. Page 3 of 7 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Planning CommissionMinutes Ex Parte Contact No ex parte contact was disclosed. B. Deliberations Commissioner MacCracken Jain motioned that a Peer Respite Center most closely resembled a Group Living facility. The motion died for lack of a second. Commissioners KenCairn/Maher m/s that the application most similarly resembled a travelers accommodations, which is a short-term stay of less than 30 day and does not qualify as residential dwelling. DISCUSSION: Commissioner MacCracken Jain stated that the short-term duration is a singular disqualifier in terms of reasonable accommodation, and is overly harsh as there are additional aspects to it, including the collection of fees or whether food or services are provided. Roll Call Vote: Commissioners KenCairn, Maher, Phillips, Herron, Perkinson, and Verner: AYE. Commissioner MacCracken Jain: NAY. Motion passed 6-1. The Commission considered the applicant’s request for a reasonable accommodation. Regarding this issue, Commissioner KenCairn noted that cities are not required to disregard their own land use ordinances in order to grant reasonable accommodation requests and suggested that the application failed the two tests required for approval. Chair Verner stated that approving the proposal would alter RR.5 Zones, adding that the purpose of zones is to have orderly locations of uses after logical review and that allowing particular uses in zones where they would otherwise be unpermitted would alter the zone and require a code amendment process. Commissioners Perkinson/Phillips m/s to deny the application on the basis that a reasonable accommodation does not apply to traveler’s accommodations. DISCUSSION: Chair Verner requested clarification on why a reasonable accommodation would not apply. Commissioner Phillips responded that the facility would not be a residence. Roll Call Vote: All AYES. Motion passed 7-0. VII.TYPE III PUBLIC HEARING PLANNING ACTION: PA-T3-2024-00010 SUBJECT PROPERTY: 300 Clay St. OWNER: Bentella LLC APPLICANT: Rogue Development DESCRIPTION: A request for annexation and zone change for a 4.8-acre property, along with adjacent Right-of-Way (ROW), for the property located at 300 Clay Street. The application also includes a request for a 25-lot (37 dwelling unit) Outline Plan Approval for a Performance Standards Option (PSO) Subdivision, as well as a limited activities WRPZ permit. COMPREHENSIVE PLAN DESIGNATION: Suburban Residential; ZONING: County RR-5 (R-1-3.5 requested); MAP: 39-1E-11-CB Tax Lot 1100; TAX LOT: 1100 Page 4 of 7 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Planning CommissionMinutes Ex Parte Contact Commissioners Herron, Perkinson, Phillips, and Verner conducted site visits. No ex parte contact was disclosed. Staff Presentation Planning Manager Derek Severson outlined the application as including the following requests: an Annexation/Zone change for the 4.8-acre property and adjacent right-of-way (ROW), with eight units designated as affordable housing; Outline Plan approval for a Performance Standards Options (PSO) subdivision; a Limited Activities & Uses Permit for public utilities with the Water Resource Protection Zone (WRPZ); and a Tree Removal Permit to remove four non-hazard trees. The application also requested an Exception to AMC 18.5.8.050.G.3 which requires the affordable units to have a comparable mix of bedrooms to market-rate units. The applicant asserted that they are building the proposed townhomes as rental units, but that they cannot control future developments of attached single-family residential units (see attachment #5). Mr. Severson suggested that, if the Commission were to reject the Exception request, it could add a condition of approval addressing the Final Plan and requiring deed restrictions to meet the affordable bedroom maximum. Mr. Severson stated that the existing wetland area is significantly smaller than it appears in the City’s wetlands inventory, and therefore the applicant has proposed to treat the existing wetland area on the north end of the property as a possible wetland, with a delineating line and 20ft open space buffer. He stated that the Tree Management Advisory Committee recommended approval to remove the four trees requested. Staff recommended the Commission make a favorable recommendation to the City Council with the six conditions suggested in the staff report. Questions of Staff The Commission questioned if the proposed development would satisfy its affordable housing obligations. Commissioner MacCracken Jain questioned granting the applicant’s request for an Exception to AMC 18.5.8.050.G.3 due to their stated inability to control the future development of the subdivision. Applicant Presentation Applicant Amy Gunter outlined the proposed annexation and subdivision, stating that this project would provide needed housing, would allow for the future growth of Ashland as outlined in the City’s Comprehensive Plan, and would comply with the applicable ordinance AMC 18.5.8.050. She stated that the proposed development types include 21 lots for detached residential and attached residential (duplex and/or accessory residential units), and four lots that accommodate four, four- plex multi-family units, one on each lot for a total of 37 dwellings, and four open space parcels. She Page 5 of 7 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Planning CommissionMinutes noted that the trip generation assessment found that the proposed development is below the requirements for a complete Traffic Impact Analysis (TIA) to be conducted, but that a nearby bus- stop and multiple dispersal points via adjacent neighborhoods would help alleviate traffic. She stated that all required public infrastructure extensions for provisions of city water and electric service are proposed (see attachment #6). Questions of the Applicant The Commission requested clarification regarding the affordable housing townhomes proposed by the applicant. Ms. Gunter responded that all the 2-bedroom townhomes would likely be kept by the owner as rental units, though they could be sold. Public Comments Public speakers Fred Stapenhorst, Suzanne Marie, and Pauline Short all expressed concerns regarding traffic, fire evacuation access, and wetland protection. Applicant Rebuttal Ms. Gunter stated that the wetland was found to be smaller than earlier thought, which was codified in a wetland map adoption in 2022. She added that a water-dispersal trench could be installed to provide additional watering to the wetland areas. She noted that the wetland would not be bisected by the proposed street. She stated that the multi-family dwelling units would have fire suppression systems and fire- resistant exteriors, though she could not speak to fires in the valley. Chair Verner closed the Public Hearing and Public Record at 8:57 p.m. Deliberations Commissioner Phillips asked what the City’s responsibility is to man-made wetlands. Mr. Goldman responded that the applicant is required to delineate the current wetland and provide a 20ft buffer. Commissioners Perkinson/KenCairn m/s to accept staff’s recommendation and recommend that the City Council approve the annexation and approve the outline plan with conditions as proposed in the staff report, correcting a non-substantive error in the proposed conditions, and with the addition of a 7 condition stating “that the final plan submittal shall identify a mix of th bedrooms for the affordable units comparable to the bedroom mix of the market rate units and include necessary deed restrictions to ensure compliance.” DISCUSSION: Commissioner Phillips noted that the applicant had mentioned a financial benefit for all the duplexes to be two-bedroom, and expressed concern about creating additional restrictions to obtain financing for affordable housing. Commissioner KenCairn responded that deed restrictions would only affect future single- family homes and not the townhomes. Roll Call Vote: All AYES. Motion passed 7-0. Page 6 of 7 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Planning CommissionMinutes VIII.OTHER BUSINESS Ashland Modified Flood Zone along Hamilton Creek Staff requested that the Planning Commission initiate a planning action as allowed by AMC 18.5.8.040 to make an amendment to the officially adopted maps of the “Ashland Modified Floodplain.” The reason for this amendment is that it has come to Staff’s attention that the stretch of Hamilton Creek, while shown on the official maps, was adopted in error sometime between 2008 and 2010. Direction from the Commission would initiate an amendment as a city-initiated action to correct a mapping error effecting multiple properties along the full length of the mapped Ashland modified floodplain corridor for Hamilton Creek but would not alter the FEMA-regulated floodplain. If initiated, final approval would go back before the Commission and Council for adoption. Commissioners Phillips/Herron m/s for staff to prepare an amendment officially adopting maps removing the Ashland modified floodplain from the subject portion of Hamilton Creek. Voice Vote: all AYES. Motion passed 7-0. IX.OPEN DISCUSSION The Commission discussed the recent Commission and Committee Handbook updates and how those effect term limits and members attending meetings virtually. X.ADJOURNMENT Meeting adjourned at 9:12 p.m. Submitted by, Michael Sullivan, Executive Assistant Page 7 of 7 In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please email planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to the meeting (28 CFR 35.102-35.104 ADA Title 1). Jennifer M. Bragar 121 SW Morrison Street, Suite 1850 AttorneyPortland, Oregon 97204 Admittedin Oregon, Washington,Tel503-894-9900 and CaliforniaFax 971-544-7236 jbragar@tomasilegal.comwww.tomasilegal.com February 3, 2025 BY EMAIL City of Ashland Planning Commission 20 E Main Street Ashland, OR 97520 Re:Applicant's Objection and Request to Reject New EvidenceImproperly Submitted–City File No. PA-T1-2024-00255 DearCommissioners: As you know, this office represents Stabbin' Wagon ("Applicant"), in the above-referenced application for a reasonable accommodation and code interpretation to operate a respite home at property located at 110 Terrace Street, Ashland, Oregon (the "Mountain Beaver House"). This letter is submittedas Applicant's objection and request that the Planning Commissionreject new evidence improperly submitted by project opponentsand by planning staffduring the rebuttal period.Please include this letter in the record, as Applicant is required to raise procedural errors to preserve the issue for appeal.Brown v. City of Portland, 33 Or LUBA 700, 704 (1997), and Frewingv. City of Tigard, 47 Or LUBA 331 (2004) (citing the due process protections under Fasano). When a local government receives new evidence after the evidentiary record is closed, even from City staff, the local government must either: (1) reject the new evidence as untimely; or (2) reopen the record to allow other participants an opportunity torespond to the new evidence. Ploeg v. Tillamook County, 50 Or LUBA 608, 617-618(2005).To do otherwise constitutes a procedural error. J4J Misc PAC v. City of Jefferson, 75 Or LUBA 120, 142-143 (2017). Pursuant toORS 197.797(6)(c) andALUO 18.5.1.060(D)(6),Applicant's express request at theJanuary 14, 2025hearing,and the Planning Commission's grant of that request, all new evidence in this matter was required to be submittedinto the recordby January 22, 2025, at which point the evidentiary record was closed.Therefore, the appropriate time for project opponents and planning staff to submit new evidence related to issues raised at the hearing or already in the record was on or before January 22, 2025. However, between January 23, 2025 and January 30, 2025, project opponents and planning staff impermissibly submitted several pieces of new evidence that could have and should have been submitted duringthe open record period.Although these parties had the right to respond to new issues raised, there was no continuing right toinclude new evidence between January 23, 2025and January 30, 2025. To extend that rightwould lead to a never-endingopen record period, STABBI-LU1\\00802657.005 TBDB OMASI RAGAR UAY February 3, 2025 Page 2 which would inordinately delay and prolongthe land use reviewperiod beyond allowable timelines and increase the burden to the Applicant who is requesting a reasonable accommodation. In all cases, the project opponents and planning staff were well aware of the content of the application and all the issuestargeted by the new evidencewere aired either in written materials before the Planning Commission at the hearing on January 14, 2025, or raised during the hearing. The improper submittals betweenJanuary 23, 2025and 30, 2025 could all have been made by January 22, 2025. The specific objections set forthbelowdescribe where duringthe hearing or in the Applicant's (or record) materials the issues were on recordduring the open record period between January 14, 2025and January 22, 2025. Importantly,Applicant hasnotbeen provided with anadequateopportunity to respondto this new evidence, prejudicing Applicant's substantial rights. Applicant's substantial rights have been prejudiced because, should the new evidence been submitted at the appropriate time, Applicantcould have and would have provided a response duringthe open record period to any such evidence. The PlanningCommission should resolve this procedural errorcommitted by project opponents andplanning staff and reject thefollowingimproperly submitted evidenceas part of the Commission'sdeliberative processat its meeting on February 11, 2025, prior to making its decision on the merits of the application: 1 Portions of January 29,2025 Letter from Sydnee Dreyer(pp. 1-17) Exhibit Ais new evidence improperly submitted and should be rejected; and the link to the September 2022 Peer Run RFPG Information Session ("RFPG Information Session") on page 3 is an attempt to improperly submit new evidenceand should be rejected.Therefore,the paragraph on page 3 of the letter beginning with "The proposed use"includesarguments that incorporate and rely on Exhibit Aandshouldbe rejected.The application materials addressed Applicant's proposed use,and any comments regarding the Applicant's operations could have been correctly raised, and any new evidence related to those comments could have been correctly submitted during the open record period that ended January 22, 2025. Exhibit Bis new evidence improperly submittedand should be rejected.Therefore, the paragraph beginning with "The applicant indicates" includesarguments that incorporateand relyon Exhibit Band should be rejected.At the hearing, Applicant explainedthat a request for a reasonable accommodationis intended to be a dialogue between the party seeking the accommodation and the governmental body responsible for considering the request. At the same time, the Applicant raised the issuethat the City has not engaged in dialogue with the Applicant.Planning Commission Hearing, January 14, 2025, minutes 31:04-32:25.If the project opponentsrepresented by Sydnee Dreyer wanted to question whether a reasonable 1 The new evidence is incorporated into comments shared with the Applicant by the City on January 30, 2025 as a PDF entitled "110 Terrace St -Public Comment Rebuttals Received by 01/30/25." Page numbers identifying specific comments herein correspond to the page numbers of the PDFand should be rejected. TBDB OMASI RAGAR UAY February 3, 2025 Page 3 accommodation dialogue had occurred, they could have presented the evidence byJanuary 22, 2025. The January 29, 2025 Letter from Sydnee Dreyer shouldbe rejected,or a redacted version of the letter that omits the improperly submitted materialsshould be considered by the Planning Commission. Such redacted letter is attached here as Attachment 1. AttachmenttoJanuary 29, 2025 Letter from Maylee Oddo and Brock Dumont(pp. 20-39) Theaforementioned letter from Sydnee Dreyeris included as an attachment to this letter. The same portionsof that letter asdiscussed above should be rejectedhere, too. The January 29, 2025 Letter from Maylee Oddo and Brock Dumont should be rejected, or a redacted version of the letter that omits the improperly submitted materials should be considered by the Planning Commission.Such redacted letter is attached here as Attachment 2. Portions January 30, 2025 Letter from RobPatridge(pp. 43-68) Exhibit B is new evidence improperly submittedand should be rejected.Under item3), on page 3(Mr. Patridge's page numbering),theparagraph beginning with "While I would not recommend it,"includes arguments thatimproperlyincorporateand relyon Exhibit Band should be rejected.Applicant's proposednumber of residents and staffing requirements under the grant were discussed at length during the hearing on January 14, 2025. Planning Commission Hearing, January 14, 2025, minutes43:58 –45:12.This project opponent could have submitted thenew evidence contained inExhibit B during the open record period ending on January 22, 2025, just as he didwith his earlier submittal of Exhibit A,which is a repeat submittal in this letter. Exhibit Cis new evidence improperly submittedand should be rejected.Under item3),on page 4,the paragraph beginning with "Before you try to draw"includes arguments that improperly incorporate and relyon Exhibit Candshould be rejected.During the January 14, 2025 hearing, Planning Commissioners asked about Applicant's site selection process. Planning Commission Hearing, January 14, 2025, minutes49:20 –49:35. If this project opponent had evidence he wanted to submit about site selection, he could have done so during the open record period ending January 22, 2025. The January 30, 2025 Letter from Rob Patridgeshould be rejected, or a redacted version of the letter that omits the improperly submitted materials should be considered by the Planning Commission.Such redacted letter is attached here as Attachment 3. January 30, 2025Memorandum ofCity of Ashland Planning Staff(pp. 69-70) The list of past code enforcement casesand other new factual informationon page 1(planning staff's page numbering)is new evidence improperly submitted. On page 1, theparagraph beginning with"The City of Ashland Code Compliance Division regularly enforces" and TBDB OMASI RAGAR UAY February 3, 2025 Page 4 ending with "Traveler's Accommodations are not permitted in single family neighborhoods" includes arguments that improperlyincorporate and relyonthe list of past code enforcement casesand should berejected.On page2,theparagraph beginning with "Concerns regarding potential disparate enforcement,"alsoimproperlyincludes arguments that relyon thelistof past code enforcement cases and should be rejected.Applicantraised the issue that the City does not monitorthe length of occupancy by guestsor lessees of owners ofsingle-family dwellings in the City's residential zonesduring and prior to the January 14, 2024 hearing. Planning Commission Hearing, January 14, 2025, minutes 47:20 –47:44;andJanuary 14, 2025,Applicant Letter, p. 7.Planning staff could have submitted evidence intended to counter these concerns by January 22, 2025. The January 30, 2025 Memorandumof Planning Staffshould be rejected, or a redacted version of the letter that omits the improperly submitted materials should be considered by the Planning Commission.Such redacted letter is attached here as Attachment 4. Applicant requests that the Planning Commission reject the foregoing new evidence improperly submittedby project opponents and Planning Staffafter the close of the evidentiary record in order to avoid prejudicing Applicant's substantial rights.The original versions should be rejected, and the redacted versions in Attachments 1-4could be accepted instead. Alternately, Applicantrequests that the Planning Commission reopen the record to allow Applicant to respond to the new evidence submitted.However, the Applicant cautions the Commission that an unreasonable delay in granting arequest for areasonable accommodation has been interpreted by some courts as ashow of bad faith in the interactive processof negotiating an accommodation, or even an outright failure to provide anaccommodation. See, e.g, Beck v. Univ. th of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7Cir. 1996) (stating that "\[a\] party that obstructs or delays the interactive process is not acting in good faith"); Valle-Arce v. P.R. Ports Auth., 651 F.3d st 190, 200-201 (1Cir. 2011)(stating that "unreasonable delay may amount to a failure to provide reasonable accommodations); see also guidance in the record attached to the January 22, 2025, Assistance City Attorney Memo stating that local governments should review reasonable accommodation requests through mechanisms "that operate promptly and efficiently, without imposing significant costs or delays."Reopening the record at this time will prolong review and cause undue delay to Applicant's request for reasonable accommodation to provide housing and peer respite service to members of the Ashland community experiencing mental illness, which is a recognized disability under the FHA and ADA. Further, ORS 197.797(6)(c)and ALUO 18.5.1.060(D)(6) provide a particular format and timeline which the Planning Commissionshould adhere to.No reason has been given for re- opening the record or deviating from the established protocol in this case. To the extent the Planning Commission gives special indulgence and extra opportunity for objectors to the present application that it does not routinely extend to developments not involving people with disabilities, that effort to expand the record appears to be discriminatory.The ADA and the FHAprohibit requiring one procedurefor people with disabilities "but notof other people," nor may the Planning Commissionapply a "procedure, neutral on its face . . . in a discriminatory manner." United States v. Vill. of Palatine, Ill., 37 F.3d 1230, 1234 (7th Cir. 1994). 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Bragar 121 SW Morrison Street, Suite 1850 AttorneyPortland, Oregon 97204 Admittedin Oregon, Washington,Tel503-894-9900 and CaliforniaFax 971-544-7236 jbragar@tomasilegal.comwww.tomasilegal.com February 3, 2025 BY EMAIL City of Ashland Planning Commission 20 E Main Street Ashland, OR 97520 Re:Applicant's Objection and Request to Reject New EvidenceImproperly Submitted–City File No. PA-T1-2024-00255 DearCommissioners: As you know, this office represents Stabbin' Wagon ("Applicant"), in the above-referenced application for a reasonable accommodation and code interpretation to operate a respite home at property located at 110 Terrace Street, Ashland, Oregon (the "Mountain Beaver House"). This letter is submittedas Applicant's objection and request that the Planning Commissionreject new evidence improperly submitted by project opponentsand by planning staffduring the rebuttal period.Please include this letter in the record, as Applicant is required to raise procedural errors to preserve the issue for appeal.Brown v. City of Portland, 33 Or LUBA 700, 704 (1997), and Frewingv. City of Tigard, 47 Or LUBA 331 (2004) (citing the due process protections under Fasano). When a local government receives new evidence after the evidentiary record is closed, even from City staff, the local government must either: (1) reject the new evidence as untimely; or (2) reopen the record to allow other participants an opportunity torespond to the new evidence. Ploeg v. Tillamook County, 50 Or LUBA 608, 617-618(2005).To do otherwise constitutes a procedural error. J4J Misc PAC v. City of Jefferson, 75 Or LUBA 120, 142-143 (2017). Pursuant toORS 197.797(6)(c) andALUO 18.5.1.060(D)(6),Applicant's express request at theJanuary 14, 2025hearing,and the Planning Commission's grant of that request, all new evidence in this matter was required to be submittedinto the recordby January 22, 2025, at which point the evidentiary record was closed.Therefore, the appropriate time for project opponents and planning staff to submit new evidence related to issues raised at the hearing or already in the record was on or before January 22, 2025. However, between January 23, 2025 and January 30, 2025, project opponents and planning staff impermissibly submitted several pieces of new evidence that could have and should have been submitted duringthe open record period.Although these parties had the right to respond to new issues raised, there was no continuing right toinclude new evidence between January 23, 2025and January 30, 2025. To extend that rightwould lead to a never-endingopen record period, STABBI-LU1\\00802657.005 TBDB OMASI RAGAR UAY February 3, 2025 Page 2 which would inordinately delay and prolongthe land use reviewperiod beyond allowable timelines and increase the burden to the Applicant who is requesting a reasonable accommodation. In all cases, the project opponents and planning staff were well aware of the content of the application and all the issuestargeted by the new evidencewere aired either in written materials before the Planning Commission at the hearing on January 14, 2025, or raised during the hearing. The improper submittals betweenJanuary 23, 2025and 30, 2025 could all have been made by January 22, 2025. The specific objections set forthbelowdescribe where duringthe hearing or in the Applicant's (or record) materials the issues were on recordduring the open record period between January 14, 2025and January 22, 2025. Importantly,Applicant hasnotbeen provided with anadequateopportunity to respondto this new evidence, prejudicing Applicant's substantial rights. Applicant's substantial rights have been prejudiced because, should the new evidence been submitted at the appropriate time, Applicantcould have and would have provided a response duringthe open record period to any such evidence. The PlanningCommission should resolve this procedural errorcommitted by project opponents andplanning staff and reject thefollowingimproperly submitted evidenceas part of the Commission'sdeliberative processat its meeting on February 11, 2025, prior to making its decision on the merits of the application: 1 Portions of January 29,2025 Letter from Sydnee Dreyer(pp. 1-17) Exhibit Ais new evidence improperly submitted and should be rejected; and the link to the September 2022 Peer Run RFPG Information Session ("RFPG Information Session") on page 3 is an attempt to improperly submit new evidenceand should be rejected.Therefore,the paragraph on page 3 of the letter beginning with "The proposed use"includesarguments that incorporate and rely on Exhibit Aandshouldbe rejected.The application materials addressed Applicant's proposed use,and any comments regarding the Applicant's operations could have been correctly raised, and any new evidence related to those comments could have been correctly submitted during the open record period that ended January 22, 2025. Exhibit Bis new evidence improperly submittedand should be rejected.Therefore, the paragraph beginning with "The applicant indicates" includesarguments that incorporateand relyon Exhibit Band should be rejected.At the hearing, Applicant explainedthat a request for a reasonable accommodationis intended to be a dialogue between the party seeking the accommodation and the governmental body responsible for considering the request. At the same time, the Applicant raised the issuethat the City has not engaged in dialogue with the Applicant.Planning Commission Hearing, January 14, 2025, minutes 31:04-32:25.If the project opponentsrepresented by Sydnee Dreyer wanted to question whether a reasonable 1 The new evidence is incorporated into comments shared with the Applicant by the City on January 30, 2025 as a PDF entitled "110 Terrace St -Public Comment Rebuttals Received by 01/30/25." Page numbers identifying specific comments herein correspond to the page numbers of the PDFand should be rejected. TBDB OMASI RAGAR UAY February 3, 2025 Page 3 accommodation dialogue had occurred, they could have presented the evidence byJanuary 22, 2025. The January 29, 2025 Letter from Sydnee Dreyer shouldbe rejected,or a redacted version of the letter that omits the improperly submitted materialsshould be considered by the Planning Commission. Such redacted letter is attached here as Attachment 1. AttachmenttoJanuary 29, 2025 Letter from Maylee Oddo and Brock Dumont(pp. 20-39) Theaforementioned letter from Sydnee Dreyeris included as an attachment to this letter. The same portionsof that letter asdiscussed above should be rejectedhere, too. The January 29, 2025 Letter from Maylee Oddo and Brock Dumont should be rejected, or a redacted version of the letter that omits the improperly submitted materials should be considered by the Planning Commission.Such redacted letter is attached here as Attachment 2. Portions January 30, 2025 Letter from RobPatridge(pp. 43-68) Exhibit B is new evidence improperly submittedand should be rejected.Under item3), on page 3(Mr. Patridge's page numbering),theparagraph beginning with "While I would not recommend it,"includes arguments thatimproperlyincorporateand relyon Exhibit Band should be rejected.Applicant's proposednumber of residents and staffing requirements under the grant were discussed at length during the hearing on January 14, 2025. Planning Commission Hearing, January 14, 2025, minutes43:58 –45:12.This project opponent could have submitted thenew evidence contained inExhibit B during the open record period ending on January 22, 2025, just as he didwith his earlier submittal of Exhibit A,which is a repeat submittal in this letter. Exhibit Cis new evidence improperly submittedand should be rejected.Under item3),on page 4,the paragraph beginning with "Before you try to draw"includes arguments that improperly incorporate and relyon Exhibit Candshould be rejected.During the January 14, 2025 hearing, Planning Commissioners asked about Applicant's site selection process. Planning Commission Hearing, January 14, 2025, minutes49:20 –49:35. If this project opponent had evidence he wanted to submit about site selection, he could have done so during the open record period ending January 22, 2025. The January 30, 2025 Letter from Rob Patridgeshould be rejected, or a redacted version of the letter that omits the improperly submitted materials should be considered by the Planning Commission.Such redacted letter is attached here as Attachment 3. January 30, 2025Memorandum ofCity of Ashland Planning Staff(pp. 69-70) The list of past code enforcement casesand other new factual informationon page 1(planning staff's page numbering)is new evidence improperly submitted. On page 1, theparagraph beginning with"The City of Ashland Code Compliance Division regularly enforces" and TBDB OMASI RAGAR UAY February 3, 2025 Page 4 ending with "Traveler's Accommodations are not permitted in single family neighborhoods" includes arguments that improperlyincorporate and relyonthe list of past code enforcement casesand should berejected.On page2,theparagraph beginning with "Concerns regarding potential disparate enforcement,"alsoimproperlyincludes arguments that relyon thelistof past code enforcement cases and should be rejected.Applicantraised the issue that the City does not monitorthe length of occupancy by guestsor lessees of owners ofsingle-family dwellings in the City's residential zonesduring and prior to the January 14, 2024 hearing. Planning Commission Hearing, January 14, 2025, minutes 47:20 –47:44;andJanuary 14, 2025,Applicant Letter, p. 7.Planning staff could have submitted evidence intended to counter these concerns by January 22, 2025. The January 30, 2025 Memorandumof Planning Staffshould be rejected, or a redacted version of the letter that omits the improperly submitted materials should be considered by the Planning Commission.Such redacted letter is attached here as Attachment 4. Applicant requests that the Planning Commission reject the foregoing new evidence improperly submittedby project opponents and Planning Staffafter the close of the evidentiary record in order to avoid prejudicing Applicant's substantial rights.The original versions should be rejected, and the redacted versions in Attachments 1-4could be accepted instead. Alternately, Applicantrequests that the Planning Commission reopen the record to allow Applicant to respond to the new evidence submitted.However, the Applicant cautions the Commission that an unreasonable delay in granting arequest for areasonable accommodation has been interpreted by some courts as ashow of bad faith in the interactive processof negotiating an accommodation, or even an outright failure to provide anaccommodation. See, e.g, Beck v. Univ. th of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7Cir. 1996) (stating that "\[a\] party that obstructs or delays the interactive process is not acting in good faith"); Valle-Arce v. P.R. Ports Auth., 651 F.3d st 190, 200-201 (1Cir. 2011)(stating that "unreasonable delay may amount to a failure to provide reasonable accommodations); see also guidance in the record attached to the January 22, 2025, Assistance City Attorney Memo stating that local governments should review reasonable accommodation requests through mechanisms "that operate promptly and efficiently, without imposing significant costs or delays."Reopening the record at this time will prolong review and cause undue delay to Applicant's request for reasonable accommodation to provide housing and peer respite service to members of the Ashland community experiencing mental illness, which is a recognized disability under the FHA and ADA. Further, ORS 197.797(6)(c)and ALUO 18.5.1.060(D)(6) provide a particular format and timeline which the Planning Commissionshould adhere to.No reason has been given for re- opening the record or deviating from the established protocol in this case. To the extent the Planning Commission gives special indulgence and extra opportunity for objectors to the present application that it does not routinely extend to developments not involving people with disabilities, that effort to expand the record appears to be discriminatory.The ADA and the FHAprohibit requiring one procedurefor people with disabilities "but notof other people," nor may the Planning Commissionapply a "procedure, neutral on its face . . . in a discriminatory manner." United States v. Vill. of Palatine, Ill., 37 F.3d 1230, 1234 (7th Cir. 1994). 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