HomeMy WebLinkAbout2025 - Findings - #PA-Appeal-2025-00021 THE CITY OF ASHLAND
BEFORE THE CITY COUNCIL
July 15, 2025
IN THE MATTER OF PLANNING ACTION#PA-APPEAL-2025-00021,AN )
APPEAL OF PLANNING ACTION#PA-T2-2024-00053,A PHYSICAL AND )
ENVIRONMENTAL (P&E) CONSTRAINTS REVIEW PERMIT FOR THE )
CONSTRUCTION OF A NEW SINGLE-FAMILY RESIDENTIAL HOME )
ON A VACANT PARCEL AT 231 GRANITE STREET. IN ADDITION TO )
THE P&E PERMIT, THE DEVELOPMENT REQUIRES A VARIANCE TO )
FLAG DRIVE STANDARDS OF AMC 18.5.3.060.F FOR BOTH MAXIMUM )
DRIVEWAY GRADE AND LENGTH, A TREE REMOVAL PERMIT FOR )
THE REMOVAL OF 74 TREES INCLUDING NINE SIGNIFICANT TREES, )
AND AN EXCEPTION TO THE DEVELOPMENT STANDARDS FOR )
HILLSIDE LANDS. )
FINDINGS,
OWNER: BRYAN& STEPHANIE DEBOER CONCLUSIONS,
APPLICANT: CARLOS DELGADO, AND ORDERS
ARCHITECT
APPLICANTS' REPRESENTATIVE: CHRIS HEARN
HEARN DAVIS HEARN
ANDERSON& SELVIG
APPELLANTS: LEONARD EISENBERG
KENT MCLAUGHLIN
PAMELA MCLAUGHLIN
APPELLANTS' PEPRESENTATIVE: ZACK P. MITTGE
HUTCHINSON COX
RECITALS:
1) The subject property is Tax Lot#1800 of Assessor's Map 39 lE 08 DA and has a site
address of 231 Granite Street. The property is zoned Rural Residential(RR-.5), a rural
residential zoning with a %Z-acre minimum lot size and is 2.182 acres.
2) The application is an appeal on the record of the Planning Commission's March 11, 2025
approval of a Physical&Environmental Constraints Review Permit,Variance to the Flag
Drive Standards of AMC 18.5.3.060.F for both maximum driveway grade and length, a
Tree Removal Permit to remove 74 trees including nine significant trees, and an
Exception to the Development Standards for Hillside Lands to allow the construction of a
new single family residence on the vacant property at 231 Granite Street.
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3) The relevant approval criteria include those for a Physical &Environmental Constraints
Review Permits as set out in AMC 18.3.10.050, an Exception to the Development
Standards for Hillside Lands as set out in AMC 18.3.10.090.H, a Variance as set out in
AMC 18.5.5.050, and for Tree Removal Permits at set out in AMC 18.5.7.040. These are
set out in full in the Planning Commission Findings, Conclusions &Orders referenced
above, and for parsimony are not repeated here.
4) The Planning Commission, following proper public notice,held a public hearing on
March 11,2025. The meeting was conducted in person and electronically via Zoom.
Public testimony was received, and exhibits were presented. Prior to the closing of the
public hearing,members of the public requested that the hearing be continued. As
provided under ORS 197.767.6.a-e,the Planning Commission voted to close the hearing
but leave the public record open to allow for new information from parties of record for
seven days (until March 18 at 4:30 p.m.),rebuttal from parties of record for the next
seven days (until March 25 at 4:30 p.m.), and for a final seven days, only the applicant
could provide their final legal arguments,but not new evidence, in response to all
previously submitted information(until April 1 at 4:30 p.m.). The Planning Commission
reconvened for deliberation on April 8,2025,at 7:00 p.m. The Chair provided her
summation of all conditions of approval recommended by the Staff Advisor and
Commissioners and through public comments contained within the whole record.
Following deliberations,the Planning Commission approved the application subject to a
number of modified conditions pertaining to the appropriate development of the site. On
April 22,2025,the Planning Commission adopted Findings, Conclusions and Orders
addressing the relevant approval criteria and conditions of approval.
5) On May 2,2025, an appeal of the Planning Commission's decision was timely filed by
Leonard Eisenberg and Kent and Pamela McLaughlin,represented by Attorney Zack P.
Mittge of Hutchinson Cox. The appeal challenges the Planning Commission's April 22,
2025, approval of Planning Action#PA-T2-2024-00053 and did not request that the
record be re-opened. The 25 grounds for appeal included in the appellants' Notice of
Appeal are detailed below:
a. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence in
approving a Physical Constraints Review Permit without addressing or
demonstrating compliance with the requirements of 18.3.10.050.A.
b. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence in
approving a Physical Constraints Review Permit without addressing or
demonstrating compliance with the requirements of 18.3.10.050.B.
C. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence in
approving a Physical Constraints Review Permit without addressing or
demonstrating compliance with the requirements of 18.3.10.050.C.
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d. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
approving development of unbuildable slopes greater than 35% in violation of
18.3.10.090.A.1 and 2.
e. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence in
concluding that the parcel has an inadequate buildable area less than or equal to
35%under 18.3. 10.090.A. La when much of the property is comprised of 25%to
30% slopes.
f. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
approving the proposed development within a partition without the geotechnical
study required by 18.3.10.090.A.4.
g. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
allowing terracing for purposes other than developing a building pad and
vehicular access including landscaping, a pool and spa, and an outdoor kitchen
and lounge contrary to 18.3.10.090.B.8.a.
h. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
allowing the applicant to develop a pad for a swimming pool and spa contrary to
18.3.10.090.A.8.c.
i. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
approving a building envelope which is not located and sized to preserve the
maximum number of trees on site as required by 18.3. 10.090.D.3.b.
j. The Planning Commission improperly construes applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
approving an exception to the wall height requirements at 18.3.10.090.E.2.c
without addressing or demonstrating compliance with the requirements of
18.3.10.090.H.
k. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
allowing the driveway grade for the new driveway to exceed 20%contrary to
18.4.3.080.D.8.
1. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
approving a variance to allow an average flag drive grade over 20%when 18%is
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the maximum grade allowed for flag drive variances by 18.5.3.060.F.
in. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
approving a variance that allows the applicant to exceed the 15%maximum grade
for a flag drive where the cumulative length of such variances exceeds 200 feet
contrary to 18.5.3.060.F.
n. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
allowing an overlength flag drive without the turnaround required by 18.5.3.060.J.
o. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence in
approving a variance to 18.5.3.060.F without addressing or demonstrating
compliance with the requirements of 18.5.5.050.
P. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence in
determining that the lot configuration,site topography and existing natural
features are unique circumstances warranting a variance under 18.5.5.050.A.1.
q. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence in
holding that the proposed variance is the minimum necessary variance under
18.5.5.050.A.2.
r. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
relying on determinations made by a former Ashland planning director in place of
the required findings under the variance provisions in section 18.5.5.050.
S. The Planning Commission improperly construes 18.5.5.050.A.3 and makes a
decision that is not supported by adequate findings or substantial evidence in
holding that the proposal's benefits are greater than the negative impacts and will
further the purpose and intent of the Ashland Land Use Ordinance and the
Comprehensive Plan of the City when in fact the opposite is true.
t. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
holding that the proposed variance under 18.5.5.050.A.4 was not the result of a
self-imposed hardship.
U. The Planning Commission improperly construes applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
approving a tree removal permit without addressing or demonstrating compliance
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with each of the criteria set forth in 18.5.7.040.
V. The Planning Commission improperly construes applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
failing to analyze the impact of tree removal within 200 feet of the property as
required by 18.5.7.040.B.2.c.
W. The Planning Commission improperly construes applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
failing to consider required tree protection measures as set forth under
18.4.5.030.C.1 and 18.4.5.030.C.6.
X. The Planning Commission errs by adopting conclusory findings that do not
address the relevant criteria or explain how the facts found demonstrate
compliance with those criteria, and which improperly incorporates by reference
materials which do not support the decision of approval and are internally
inconsistent.
Y. The Planning Commission improperly construes the applicable law and makes a
decision that is not supported by adequate findings or substantial evidence by
imposing a condition requiring future development to conform to the
requirements of the Ashland Fire Department where the applicant has not
demonstrated such a condition to be feasible.
6) In accordance with Ashland Municipal Code(AMC) 18.5.1.060.I,the City Council's
review of a Type 2 decision on appeal is confined to the record of the proceeding before
the Planning Commission. As detailed in AMC 18.5.1.060.I.6,the record includes: the
notice of appeal,written and oral arguments submitted by the parties to the appeal; copies
of all required notices and any correspondence sent or received by the city; all materials
considered by the hearings body including the application and all materials submitted
with it; documentary evidence, exhibits and materials submitted during the hearing or at
other times when the record before the Planning Commission was open;recorded
testimony; all materials submitted by the Staff Advisor to the hearings body regarding the
application including the Staff Report dated March 11,2025; the minutes of the hearing,
and the final written decision of the Commission including the Findings,Conclusions and
Orders which were dated April 22,2025. By their reference these are hereby incorporated
herein as if set out in full. As required by the Ashland Municipal Code,the City Council
is to consider the specific grounds of appeal as outlined in the appellants' submittal and
detailed below and make a decision following the public hearing. The Council's review is
limited to determining whether there is substantial evidence in the record to support the
Planning Commission's findings or whether the Commission committed procedural or
legal error in its decision.
7) The City Council,following proper public notice,held a public hearing on June 17,2025,
at which time oral testimony was received from staff, the appellant, and the applicant.
The appellant and the applicant were each provided ten minutes for oral arguments,
which were to be confined to the substance of timely-submitted written arguments as
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provided in AMC 18.5.1.060.I.5.a. No new evidence was accepted into the record.
Following the close of the public hearing, the City Council determined that there was
substantial evidence in the record to support the decision of the Planning Commission
with regard to each of the 25 grounds for appeal, and that no procedural or legal errors
had been made. The Council affirmed the decision of the Planning Commission and
rejected the appeal, however at the applicants' request the action was remanded back to
the Planning Commission to revisit their findings.
EXHIBITS
For the purposes of reference to these Findings, the attached index of exhibits, data, and
testimony will be used.
Staff Exhibits lettered with an "S"
Proponent's Exhibits, lettered with a "P"
Opponent's Exhibits, lettered with an "O"
Hearing Minutes,Notices,Miscellaneous Exhibits lettered with an "M"
CONCLUSIONS OF LAW
1) The City Council finds that pursuant to AMC 18.5.1.060.I.5 written and oral arguments
by all parties of record on the appeal shall be limited to those issues clearly and distinctly
set forth in the Notice of Appeal, and written arguments shall be provided no less than
days prior to the appeal hearing. Oral argument shall be confined to the substance of
timely-provided written argument.
2) The City Council notes that with regard to oral arguments,AMC 18.5.1.060.I.5.a
provides that:
Oral Aryiment. Oral argument on the appeal shall be permitted before the Council.
Oral argument shall be limited to ten minutes for the applicant, ten for the
appellant, if different, and three minutes for any other party who participated
below. A party shall not be permitted oral argument if written arguments have not
been timely submitted Written arguments shall be submitted no less than ten days
prior to the Council consideration of the appeal. Written and oral arguments on
the appeal shall be limited to those issues clearly and distinctly set forth in the
notice of appeal; similarly, oral argument shall be confined to the substance of the
written argument.
The City Council finds that parties are defined as the applicant,persons who participated
in the public hearing orally or in writing,or persons who were entitled to receive notice
of the action but did not receive notice due to an error. As such,the applicants and the
appellants are parties of record pursuant to AMC 18.5.1.060.
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The City Council further fmds that on June 6, 2025,the city received the applicants'
written arguments for appeal from their attorney Chris Hearn, dated June 6, 2025. This
submittal was received prior to the published deadline of 4:30 p.m. on June 6,2025, as
specified in the city's public notice and in AMC 18.5.1.060.I.5. The City Council fords
that the June 6, 2025, submittal from Chris Hearn, applicants' attorney,was timely filed
in accordance with AMC 18.5.1.060.I.5.
On June 13, 2025,the city received an appeal hearing statement from attorneys Zack P.
Mittge and William H. Sherlock, dated June 12,2025. This submittal was received after
the published deadline of 4:30 p.m. on June 6,2025, as specified both in the city's public
notice and AMC 18.5.1.060.I.5. The City Council finds that the written Appeal Hearing
Statement submittal from Hutchinson Cox was not timely filed in accordance with AMC
18.5.1.060.I.5.
In this instance, the public hearing on the appeal was scheduled for June 17,2025, and
the public notice of the hearing to the parties including the appellants cited a clear
deadline for the submission of written arguments no later than 4:30 p.m. on Friday,June
6,2025. The appellants provided written arguments on Friday,June 13,2025, at 4:45
p.m., fully one week after the noticed deadline and only four days prior to the appeal
hearing.
The Council specifically interprets the provisions of AMC 18.5.1.060.I.5.a to provide that
the"no less than ten days prior to the Council consideration of the appeal"deadline
strictly applies to all parties to the appeal. Appellants' counsel asserted that the intended
purpose of the written argument deadline was to prevent other members of the public
who had participated in the Planning Commission hearing process from also participating
in oral argument at the Council appeal unless they had timely submitted written
arguments, and that the"no-less-than-ten-days-prior"deadline was not intended to apply
to the named appellants who had actually filed the Notice of Appeal. The Council rejects
this assertion, finding that the deadline from AMC 18.5.1.060.I.5.a is intended to apply to
all parties in order to provide adequate time to fully consider the arguments provided in
light of the whole record of the original decision. On that basis, and consistent with due
process and the fairness of the proceedings,the Council rejects the appellants' written
argument submittal of June 13, 2025, in its entirety as having not been timely submitted
as required in AMC 18.5.1.060.I.5.a. This submittal is excluded from the record and thus
may not be considered in the settlement of the record or in reaching a decision on the
appeal.
3) The Council fords that while the appellants identified 25 alleged errors,none rise to the
level of reversible error, nor do they undermine the substantial evidence supporting the
Commission's decision.
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4) The City Council finds that the Planning Commission's decision was supported by
substantial evidence in the record and did not involve legal or procedural errors.
5) The City Council concurs with the Planning Commission's findings, conclusions, and
conditions of approval as adopted on April 22, 2025. However,the Council directs that
the matter be remanded to the Planning Commission solely for the purpose of preparing
more specific detailed findings,rather than conclusory statements, in support of the
Planning Commission's approval as allowed in AMC 18.5.1.060.I.5.c.
Now,therefore, the City Council of the City of Ashland finds and concludes as follows:
DECISION
Based on the record of the Public Hearings on this matter,the City Council excludes the
appellants' Appeal Hearing Statement dated June 12,2025 from the record due to its untimely
submittal, affirms the April 22, 2025 decision of the Planning Commission approving PA-T2-
2024-00053 and rejects the appeal as that there is substantial evidence contained within the
whole record to support the Planning Commission's decision. The City Council further finds that
the Planning Commission did not commit any errors of law. The City Council remands the
action to the Planning Commission solely for the preparation of specific findings in support of
the Commission's decision; as provided in AMC 18.5.1.060.I.5.c,where the Council elects to
remand a decision to the Planning Commission,the Planning Commission decision shall be the
final decision of the City,unless the Council calls the matter up pursuant to AMC 18.5.1.060.J.
1, A"-L-
July 15, 2025
City Coun it Approval Date
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