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Planning CommissionMinutes
Note: Anyone wishing to speak at any PlanningCommission 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.
August 25, 2026
REGULAR MEETING
Minutes
I.CALL TO ORDER:
Chair Vernercalled the meeting to order at 7:00p.m.at theCivic Center Council Chambers, 1175 E.
Main Street.
Commissioners Present: Staff Present:
Lisa Verner Brandon Goldman, CommunityDevelopment Director
Jay Lininger Derek Severson, Planning Supervisor
Kerry KenCairn Michael Sullivan, Executive Assistant
Susan MacCracken Jain
John Maher
Eric Herron
Absent Members: Council Liaison:
Russell Phillips Jeff Dahle (via Zoom)
II.ANNOUNCEMENTS
1.Staff Announcements
Community Development Director Brandon Goldman made the following announcements:
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At its August 18meetingthe City Council approved first reading of Ordinance 3307 (Senate
Bill 974 / HB 4307 / HB 2138 compliance package), but did not adopt the Planning
Commission's prior recommendations regarding the 20-lot threshold or the tiered notice
area approach.
The Council directed Councilors Sherrell and Dahle to draft broader housing code
amendments covering 18 identified areas, with a Planning Commission hearing scheduled for
November 10th and Council consideration on November 17th.
2.Advisory Committee Liaison Reports–None
III.CONSENT AGENDA
Approval of Minutes
1.August 11, 2026 Regular Meeting
Commissioners Maher/Liningerm/s to approve the consent agenda as presented.Commissioner
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MacCracken Jain abstained due to her absence from the August 11meeting.Voice Vote:
Commissioners KenCairn, Maher, Lininger,Herron,and Verner:AYE. Motion Passed 5-0.
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IV.PUBLIC FORUM–None
V.LEGISLATIVE PUBLIC HEARING-CONTINUED
PLANNING ACTION:PA-L-2026-00020
APPLICANT: City of Ashland
ORDINANCE REFERENCES: AMC 18.5.3.060: Additional Preliminary Flag Lot Partition Plat Criteria
REQUEST: The proposal before the Planning Commission is a draft ordinance amending AMC
18.5.3.060 to establish a variance process for flag drive and driveway grades serving legal lots of
record created before the City adopted its Hillside Development Standards in 1997, and a request
to forward a recommendation to the City Council. The amendment was originally included in the
Senate Bill 974 implementation package (draft Ordinance No. 3307) and has been separated into
a standalone ordinance, draft Ordinance No. 3309, so that it can be considered on its own merits.
Chair Verner noted that a number of public comments had been submitted into the record after the
packet had been posted (see attachment #1), as well as a memo that had been provided by
Commissioner Lininger (see attachment #2).
Staff Presentation
Planning SupervisorDerek Severson summarized the revised draft ordinance language distributed in
the staff report. Key provisions included: a general 15% grade standard (F1); a variance up to 18% for
lots created after 1997 (F2); a variance potentially up to 25% for pre-1997 lots of record (F3, with the
upper limit presented as an option for Commission consideration); a 200-foot cumulative length
limitation on sections exceeding 15% (F4); fire code compliance requirements (F5); and tailored
variance criteria referencing engineer-stamped drawings and site-specific conditions (F6). Staff
also addressed the question of ownership triggers, recommending against tying relief to continuous
ownership since land use rights in Oregon customarily run with the land, not with a particularowner
(see attachment #3).
Questions of Staff
Commissioners asked clarifying questions regarding the variance process under AMC 18.5.5, fire
code review, the 200-foot length limit, and the scope of the 13 potentially affected lots. Staff
confirmed that variances would be application-specific, that thefire code official would provide a
recommendation in every case, and that the 200-foot standard was drawn from existing code. Staff
further noted that all prior variances exceeding 18% had been approved on the interpretation that
the flag drive standard applied only to newly created lots—an interpretation LUBA rejected in April
2026. CommissionerKenCairnnoted that she had personally processed three to four such variances
in the past under that prior interpretation.
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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).
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Commissioner Herron askedwhether the 13 lots were held by multiple different owners; staff
confirmed they were spread among individual owners, with some owned by neighboring property
owners.
Public Comments
The following speakers spoke in opposition to the ordinance:
Jay Reeckvia Zoom
Emil Sadofsky, representing Hutchinson Coxvia Zoom
Ronald Parker–Mr. Parker stated that his written submittal had not been included in the
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meeting packet materials. Note: Mr. Parker’s written comments were received on August 10
by staff and forwarded to the Planning Commissionthat same dayas a late addition tothe
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August 11Planning Commission meetingpacket.
Troy Brown
David Oursler
Chair Verner closed the Public Hearing and Public Record at 7:51pm.
Deliberations and Decision
Commissioner KenCairn expressed support for some form of variance procedure, asserting that pre-
1997 lots had been rendered effectively unbuildable by LUBA's ruling and that requiring a variance
process was not special treatment, but rather a recognition of a longstanding gap in the code.
Commissioner Maher delivered an extended statement urging rejection of the ordinance. He argued
that the amended language remained substantively the same as what the Commission
unanimously rejected on August 11th; that the proposed 25% cap and 200-foot length limit appeared
sized to fit a single known application; that seven of the thirteen lots had changed hands since 1997;
that these lots are not counted in the City's buildable lands inventory or needed to meet housing
capacity goals; that variance decisions on such lotswould largely be made administratively with no
public right of appeal; and that Ashland's prior experience with development on Granite Street
illustrated the community disruption such development could cause. He concluded that the
ordinance was unnecessary and contrary to the comprehensive plan, the Community Wildfire
Protection Plan, and the Housing Capacity Analysis.
Commissioner Liningerstatedthat some variance procedure was warranted to protect the City from a
plausible federal takings claim, since lots platted to abut a public road carry a common-law right of
access that cannot be extinguished without compensation. He also noted that the related Oregon
Court of Appeals case (Eisenberg) had oral argument two days prior to this meeting and remained
pending, suggesting the Commission allow time for that decision before finalizing a recommendation.
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
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He emphasized his preference for a variance procedure with a clear and objective cap consistent with
the Comprehensive Plan.
Commissioner Herron asked whether the City Attorney had weighed in on the taking question; staff
confirmed that the City Attorney's office, while not present at this special meeting, had advised that
grandfathered rights run with the land rather than with ownership, consistent with the staff report.
Commissioners Maher/KenCairn m/s to recommend to the City Council that no ordinance
amendment be made. Roll Call Vote: Commissioners KenCairn, Maher, and Verner: AYE.
Commissioners Lininger,Herron, andMacCracken Jain: NAY. Motion Failed3-3.
Commissioners Lininger/KenCairn m/storecommend that the City Council approve first reading
of draft Ordinance No. 3309 as amended in the August 25th staff report.
AMENDMENT #1:Commissioners KenCairn/Maher m/s to amend the motion to change the
upper grade cap in Section F3 from 25% to 20%with a variance.
DISCUSSION OF THE AMENDMENT: Commissioner MacCracken Jain requested clarification on
the reasoning for the 20% limit. Commissioner KenCairn responded that this is consistent with
the existing precedent and her own experience.
Roll Call Vote on Amendment #1: CommissionersLininger,KenCairn,and Verner: AYE.
Commissioners Herron, Maher, andMacCracken Jain: NAY. Motion Failed 3-3.
AMENDMENT #2: Commissioners Maher/Lininger m/s to reducethe cumulative length limit
in Section F4 from 200 feet to 100 feet.
DISCUSSION OF THE AMENDMENT: CommissionerHerron stated that the Commission should
exercise caution to avoid prejudice against any particular property. Commissioner Lininger
noted that this is a recommendation to Council, which will have its own deliberations, as will
the Oregon Appeals Court of the Eisenberg case.
Roll Call Vote on Amendment #2: CommissionersLininger andKenCairn. AYE.
Commissioners Herron, Maher, andMacCracken Jain ,and Verner: NAY. Motion Failed 2-4.
Roll Call Voteon Original motion: Commissioners MacCracken Jain, Lininger, and Verner: AYE.
Commissioners Herron,KenCairn, and Maher: NAY. Motion Failed 3-3.
Commissioners Lininger/Herron m/s to reopen the Public Record and to continue the Public
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Hearing to the September 8Planning Commission meeting.
DISCUSSION OF THE MOTION: Commissioner Maher expressed concern that reopening the record
would invite additional attorney correspondence, while Commissioner Lininger clarified that the
purpose was deliberative rather than to solicit new testimony. Staff confirmed that continuing
deliberation with the record closed was also an option, but noted that any input from the City
Attorney would technically constitute new information in the record if submitted in writingand
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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).
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necessitate the record being reopened in order to be submitted.Commissioner Lininger withdrew
the motion, but Commissioner Herron declined to withdraw his second and after further discussion
Commissioner Lininger reasserted his support for the motion.
Roll Call Vote: Commissioners MacCracken Jain, Lininger, KenCairn, Herron, and Verner: AYE.
Commissioner Maher: NAY. Motion Passed5-1.
The PublicRecordwas reopenedat 8:53pmand the Public Hearing was continued to the September
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8Planning Commission meeting.
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The Commission requested that a member of the City Attorney’s office attend the September 8
meeting or that a written response be provided. Mr. Goldman stated that a request could be made
but that both would be up to the discretion of the Legal Department.
Commissioner MacCracken Jain called attention to the large number of public comments that were
submitted prior to the meeting, stating that their late submittal gave little time for the Commission to
review them. Mr. Goldman notedthat public comments can be submitted right up to or during public
meetings.
VI.OPEN DISCUSSION-None
VII.ADJOURNMENT
Meeting adjourned at 8:55p.m.
Submitted by,
Michael Sullivan, Executive Assistant
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planning@ashland.or.us. Notification 72 hours prior to the meeting will enable the City to make reasonable arrangements to
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Planning Commission Meeting Agenda
ASHLAND PLANNING COMMISSION
MEETING AGENDA
Tuesday, Aug25, 2026
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.
I.CALL TO ORDER
7:00 p.m., Civic Center Council Chambers, 1175 E. Main Street
II.ANNOUNCEMENTS
1.Staff Announcements
2.Advisory Committee Liaison Reports
III.CONSENT AGENDA
Approval of Minutes
1.August 11, 2026 Regular Meeting Minutes
IV.PUBLIC FORUM
Note: To speak to an agenda item in person you must fill out a speaker request form at the meeting
and will then be recognized by the Chair to provide your public testimony. Written testimony can be
submitted in advance or in person at the meeting. If you wish to discuss an agenda item
electronically, please contact PC-public-testimony@ashland.or.us by 10:00 a.m. on August 25,
2026 to register to participate via Zoom. If you are interested in watching the meeting via Zoom,
please utilize the following link: https://zoom.us/j/91234454016
V.LEGISLATIVE PUBLIC HEARING - CONTINUED
PLANNING ACTION: PA-L-2026-00020
APPLICANT: City of Ashland
ORDINANCE REFERENCES: AMC 18.5.3.060: Additional Preliminary Flag Lot Partition Plat
Criteria
REQUEST: The proposal before the Planning Commission is a draft ordinance amending AMC
18.5.3.060 to establish a variance process for flag drive and driveway grades serving legal lots of
record created before the City adopted its Hillside Development Standards in 1997, and a request
to forward a recommendation to the City Council. The amendment was originally included in the
Senate Bill 974 implementation package (draft Ordinance No. 3307) and has been separated into
a standalone ordinance, draft Ordinance No. 3309, so that it can be considered on its own merits.
VI.OPEN DISCUSSION
VII.ADJOURNMENT
Next Meeting Date: September 8, 2026
If you need special assistance to participate in this meeting, please contact Derek Severson at
planning@ashlandoregon.gov or 541.488.5305 (TTY phone number Notification at least three
business days before the meeting will enable the City to make reasonable arrangements to ensure accessibility
to the meeting in compliance with the Americans with Disabilities Act.
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Planning CommissionMinutes
Note: Anyone wishing to speak at any PlanningCommission 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.
August 11, 2026
REGULAR MEETING
DRAFT Minutes
I.CALL TO ORDER:
Chair Vernercalled the meeting to order at 7:00 p.m.at theCivic Center Council Chambers, 1175 E.
Main Street.Commissioner Maher attended the meeting via Zoom.
Commissioners Present: Staff Present:
Lisa Verner Brandon Goldman, CommunityDevelopment Director
Jay Lininger Carmel Zahran, Deputy City Attorney
Kerry KenCairn Derek Severson, Planning Supervisor
Russell Phillips Mark Shay, Deputy Fire & Life Safety Chief
John Maher Michael Sullivan, Executive Assistant
Absent Members: Council Liaison:
Eric Herron Jeff Dahle
Susan MacCracken Jain
II.ANNOUNCEMENTS
1.Staff Announcements – None
2.Advisory Committee Liaison Reports – None
III.CONSENT AGENDA
Approval of Minutes
1.July 14, 2026 Regular Meeting
Commissioners Lininger/Phillipsm/s to approve the consent agenda as presented.Voice Vote:
Commissioners KenCairn, Maher, Lininger, Phillips, and Verner: AYE. Motion Passed 5-0.
IV.PUBLIC FORUM
Chair Verner pointed toa lettersubmitted by Joseph Kauthon August 6, which requestedthata
comprehensive study on urban growth, climate change, and the urban heat island effectbe initiated
by the City(see attachment #1). The Commission directed staff to invite Mr. Kauth to present his
th
concerns in personat the August 25meeting.
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V.LEGISLATIVE PUBLIC HEARINGS
1.PLANNING ACTION:PA-L-2026-00020
APPLICANT: City of Ashland
ORDINANCE REFERENCES: AMC 18.5.3.060: Additional Preliminary Flag Lot Partition Plat Criteria
REQUEST: The proposal before the Planning Commission is a draft ordinance amending AMC
18.5.3.060 to establish a variance process for flag drive and driveway grades serving legal lots of
record created before the City adopted its Hillside Development Standards in 1997, and a request
to forward a recommendation to the City Council. The amendment was originally included in the
Senate Bill 974 implementation package (draft Ordinance No. 3307) and has been separated into
a standalone ordinance, draft Ordinance No. 3309, so that it can be considered on its own merits.
Chair Verner noted that a number of public comments had been submitted into the record after the
packet had been posted (see attachment #2).
Staff Presentation
Planning staff presentedthe amendment to AMC 18.5.3.060 to allow variance for driveway grades
over 18% for flag lots established before the 1997 Hillside Development Standards (Ordinance No.
2808). Mr. Severson explainedthat current rules allow up to 15% with an 18% variance, andLUBA's
2026 reversal of a City decision to exceed 18% led to this action. The amendment wouldn't sanction
specific projects or new lots with steeper driveways; applicants for pre-1997 lots must apply
individually, proving topographic restrictions and meeting AMC 18.5.5 criteria. GIS identified 13 lots
likely constrained by grade issues(see attachment #3). The Oregon Fire Code's access
requirements remain unchanged. Deputy Fire Chief Mark Shayaffirmed fire code reviews address
grade, surface, clearance, length, and parking. He mentioned that steep grades might require
residential sprinklers, better fuel management, or alternate access designs. Staff confirmed sending
the required 35-day DLCD notice.
Questions of Staff
The Commission raised concerns about the clarity of the ordinance language, noting that members
of the public appeared confused about whether the amendment would apply beyond the targeted
pre-1997 lots, and suggested restructuring the language to more explicitly limit its scope. The
Commission inquired whether the minimum deviation standard was explicitly embedded in this
section; staff confirmed it is covered by the general variance criteria chapter.
Chair Verner requested that any driveway approval require review by a licensed geotechnical
engineer. Staff confirmed that existing physical and environmental constraints permit requirements
already mandate such review for development on slopes exceeding 25 percent natural grade,
making a separate requirement within this section redundant.
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Commissioners asked Deputy Chief Shea about the practical maximum grade a fire apparatus
could navigate, the factors that would cause him to deny a proposed driveway, and what mitigation
measures would support steeper grades. Deputy Chief Shayexplained that the fire code sets a 10
percent grade guideline but that Ashland's topography routinely exceeds this, and that different
apparatus are deployed based on conditions. He statedthat if fire code requirements could not be
met through any available mitigation, he would recommend denial. He further confirmed that a
single home or flag lot serving two to three homes does not require a second access point under the
Oregon Fire Code.
Commissioner Lininger raised the question of what happens if a pre-1997 lot is found to be
undevelopable because no viable driveway alignment can satisfy both planning and fire
requirements. Deputy City AttorneyCarmel Zahrannoted that such a situation could give rise to a
takings claim, which would be analyzed on a fact-specific, case-by-case basis.
Commissioner Liningerasked whether the purchase date of a current lot owner relative to the 1997
standards adoption would be relevant to a potential takings analysis. Ms. Zahranacknowledged it
could be a relevant factor, though not necessarily dispositive, and that the question warranted
further research.
Commissioner Maherasked whether these variance decisions would come before the Planning
Commission or be decided administratively by staff. Staff noted that with changes in state law,
residential variances were trending toward administrative approval, with appeals available only to
the applicant under House Bill 4037.
Public Comments
The following speakers spoke in opposition to the ordinance:
Jay Reeck, representinghimself and Sarah Samehvia Zoom
Emil Sadofsky, representing Hutchinson Coxvia Zoom
Carey Mastain
Steve Rouse, representing Rogue Advocates
David Oursler had requested to speak via Zoomprior to the meetingbut was unavailable
Chair Verner closed the Public Hearing and Public Record at 8:08pm.
Deliberations and Decision
The Commission discussed the public’sconcerns about public safety, consistency with the
comprehensive plan, and the disproportionate benefit to a small number of lots. Commissioner
Lininger notedthat he would prefer staff to return with clearer and more objective language and
potentially to limit the variance's availability to lots whose current owners obtained possession
before the 1997 standards were adopted.
Page 3 of 7
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Commissioners Maher/Lininger m/s to reject the proposed code amendment to AMC 18.5.3.060
(draft Ordinance No. 3309). Roll Call Vote: Commissioners KenCairn, Maher, Lininger, Phillips, and
Verner: AYE. Motion Passed 5-0.
Following the vote, the Commission discussed options for next steps. After consultation with staff and
Ms. Zahran, it was clarified thatanynew language prepared for the Commission's consideration
would need to be made available for public comment, requiring the public hearing and record to be
reopened rather than merely continuing deliberations on a closed record.
Commissioners Lininger/Maher m/s to reopen the Public Record and to continue the Public
Hearing to the August 25, 2026 meeting, with staff directed to provide purchase/transfer date
information for the 13 identified lots and to develop revised ordinance language for Commission
consideration.Roll Call Vote: Commissioners KenCairn, Maher, Lininger, Phillips, and Verner: AYE.
Motion Passed 5-0.
th
The Public Record was reopened at 8:32pmand the Public Hearing was continued to the August 25
Planning Commission meeting.
2. PLANNING ACTION:PA-L-2026-00019
APPLICANT: City of Ashland
ORDINANCEAMC 18.2.2.030: Uses Allowed by Zone
AMC 18.2.5.090: Standards for Single-Family Dwellings and Duplexe
REFERENCES:
AMC 18.2.5.100: Single Room Occupancy (SRO)
AMC 18.3.4.040: Normal Neighborhood District
Uses Allowed by Zone
AMC 18.3.5.050: North Mountain Neighborhood
Uses Allowed by Zone
AMC 18.3.5.100: Site Development and Design Standards
(North Mountain Neighborhood)
AMC 18.3.9.040: Review Procedures and Criteria
(Performance Standards Option)
AMC 18.5.1.010: Summary of Approvals by Type of Review
Procedure
AMC 18.5.5.030: Review Procedure (Variances)
AMC 18.6.1.030: Definitions
REQUEST: The proposal before the Planning Commission includes draft ordinance amendments
to the Ashland Land Use Ordinance to implement Senate Bill 974 (2025) and a request to forward
Page 4 of 7
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a recommendation to the City Council. The draft ordinance amends AMC 18.2.5.090, AMC
18.3.5.100, AMC 18.3.9.040, Table 18.5.1.010, AMC 18.5.5.030, and AMC 18.6.1.030. Code
changes to comply with SB 974 are required to be in effect by July 1, 2026. Additional
amendments implementing House Bill 2138 (2025) requirements with regard to Single Room
Occupancies (SROs) are proposed for AMC 18.2.2.030, 18.2.5.100, 18.3.4.040, 18.3.5.050 and
18.6.1.030.D. These SRO requirements must be implemented by January 1, 2027; additional
code changes with regard to other sections of HB 2138 will be brought forward as a separate
package following further state rulemaking. Additional amendments implementing House Bill
4037(2026) are proposed for AMC 18.5.1.050 to establish a uniform review procedure for
applicationsfor housing subject only to clear and objective standards, consistent with
amendments to ORS197A.400 operative July 1, 2026. SB 974, HB 2138, and HB 4037 together revise
the stateframework for the review of residential development applications.
Chair Verner noted that a public comment had been submitted by Steve Rouse on behalf of Rogue
Advocates after the packet had been posted (see attachment #4).
Staff Presentation
Planning Supervisor Derek Seversonprovided a brief presentation on draft Ordinance No. 3307, a
package of code amendments implementing three pieces of recent Oregon state legislation: Senate
Bill 974, House Bill 2138, and House Bill 4037. The Commission had previously reviewed this material at
study sessions in April and May 2026, and the City Council was briefed on June 1, 2026. The
amendments are collectively intended to streamline residential development review, expand
housing opportunities, and align local procedures with state law.
Senate Bill 974 requires that qualifying housing applications subject to clear and objective standards
be processed as Type 1 administrative decisions without a quasi-judicial public hearing. It reduces
the notice radius from 200 feet to 100 feet for such applications, retains a 14-day written comment
period, and allows planning commission hearings only on appeal of non-clear-and-objective
applications. The draft ordinance also raises the outline/final plan concurrent submission threshold
for Performance Standards Option (PSO) subdivisions to 20 lots and classifies qualifying variances
as Type 1 actions. Design standards may not be applied to developments of 20 or more units for
single- and two-family dwellings, with a sunset date of January 1, 2033 embeddedin the ordinance.
House Bill 2138 establishes Single Room Occupancy (SRO) standards, allowing up to 6 SRO units on
lots permitting detached single-family housing and permitting up to three times the maximum
density in multifamily zones for SRO developments. Staff also presented a clarifying amendment to
AMC 18.2.5.100(B)(5)(a) to remove an ambiguous phrase indicating that sanitary and food
preparation facilities "may be provided within the unit or as shared facilities," which could be read to
allow a unit to have both a private kitchen and private bathroom—making it a standard dwelling unit
Page 5 of 7
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rather than an SRO. The corrected language would end that sentence after "facilities" and rely on
subsections B and D to clarify that an SRO unit may have one or the other, but not both.
House Bill 4037 restricts the review of clear-and-objective housing applications to Type 1
administrative decisions, limits notice to 100 feet, and limits appeal rights exclusively to the
applicant—eliminating neighbor and third-party appeals at both the local level and before LUBA.
Staff noted that zone changes and annexations were not amended, as a conflict between SB 974's
administrative processing requirements and existing Oregon law requiring ordinance adoption via
public hearing remains unresolved.
Questions of Staff
Commissioner Lininger questioned the legal basis for delegating initial decision-making power for
housing applications solely to administrative staff. He cited ORS 197A.400(4)(c), ORS 197.195, and ORS
227.175(10) as possibly allowing local governments to reserve this authority for the Planning
Commission through a Type 1 non-hearing process. He suggested amending the ordinance to let the
Planning Commission decide on housing applications without public hearings. Staff warned this
would shift the current practice, where most Type 1 decisions are staff-handled, adding a new layer
to the code. Staffnoted the same standards apply regardless of whether staff or the Commission
decides, raising public expectations for hearings that aren’t possible. The Deputy City Attorney
agreed on the legal challenge, stating other Oregon cities were also figuring outcompliance and
needed more clarity.
Commissioners Phillips/Lininger m/s to extend the meeting by 30 minutes to 10:00pm. Voice Vote:
Commissioners Phillips, Maher, Lininger, and Verner: AYE. Commissioner KenCairn: NAY. Motion
passed 4-1.
Commissioner Maher asked what the repercussions could be for the City if it failed to approve the
state-mandated legislation. Mr. Goldman responded that if the City applied law that was
inconsistent with state law, then an applicant could appeal that decision to the Land use Board of
Appeals (LUBA) or potentially to the state circuit court. He added that the City must present its
adopted ordinance to the Department of Land Conservation and Development(DLCD), and that if
the adopted ordinancewas found to be inconsistent with state lawthentheDLCD would direct the
City to amend the ordinance to be in alignment.
Deliberations and Decision
Commissioner Maherexpressed supportstaff's recommendation, emphasizing the legislation's goal
to speed up housing approvals administratively.
Page 6 of 7
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Commissioner Phillips suggested keeping the 200-foot notice where possible and revising the PSO
threshold to 12 lots, rather than the 20 lots stated, consistent with prior discussions. Staff agreed
these adjustments could be included.
Commissioner Maher moved to approve the staff-recommended motion with two modifications:
retaining the 200-foot notice radius for applications where state law still permits it, and reducing
the PSO concurrent submission threshold from 20 to 12 lots.
DISCUSSION: Commissioners Lininger/Phillips m/sto amend the motion to modify AMC
18.5.1.050(C)(1) to allow the Planning Commission to make initial decisions on clear-and-
objective housing applications under a Type 1 non-hearing procedure, relying on the limited land
use decision procedures of ORS 197.195 and ORS 227.175(10).Roll Call Vote: Commissioners Lininger
and Verner: AYE. Commissioners KenCairn, Phillips, and Maher: NAY. Amendment Failed 2-3.
Roll Call Voteon original motion: Commissioners Phillips, Maher, KenCairn, Lininger, and Verner:
All AYES. Motion passed 5-0.
VI.OPEN DISCUSSION
th
The Commission reiterated its desire to have Mr. Rauth attend the August 25meeting to discuss his
public testimony in person.
VII.ADJOURNMENT
Meeting adjourned at 9:53p.m.
Submitted by,
Michael Sullivan, Executive Assistant
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_________________________________
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_________________________________
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ASHLAND PLANNING DIVISION
STAFF REPORT
August 25, 2026
PLANNING ACTION:PA-L-2026-00020
APPLICANT: City of Ashland
ORDINANCE REFERENCES: AMC 18.5.3.060: Additional Preliminary Flag Lot Partition
Plat Criteria
REQUEST: The proposal before the Planning Commission is a draft ordinance amending AMC
18.5.3.060 to establish a variance process for flag drive and driveway grades serving legal lots of
record created before the City adopted its Hillside Development Standards in 1997, and a request
to forward a recommendation to the City Council.
BACKGROUND
At the August 11, 2026 Planning Commission hearing on this matter, the Commission rejected the
initial language brought forth by staff and left the hearing and the record open. The hearing was
continued until 7:00 p.m. on Tuesday, August 25, 2026 to allow further consideration of the issues.
th
The materials presented here are intended to supplement the August 11 packet materials.
th
Key points in the August 11 discussion included:
Commissioners indicated that the ordinance language needed to better distinguish between
pre-Hillside Ordinance and post-Hillside Ordinance lots for clarity and readability.
Commissioners discussed whether to include an upper limit on driveway grade variances
for pre-Hillside Ordinance lots that cannot otherwise meet the standard.
Commissioners discussed clarifying the variance consideration in the standard, versus
relying on the variance criteria in AMC 18.5.5.
Whether relief from the driveway grade standards should be dependent on when the
property was purchased (and what the driveway grade standard was at the time of
purchase).
ORDINANCE AMENDMENT
A.Summary of the Proposed Amendments
Based on discussion at the August 11, 2026 hearing, staff have reworked the Flag Drive Grades
section (AMC 18.6.3.060) below with an eye to:
Clarity in addressing specific exceptions for pre-/post-1997 lots as detailed below in F.2
and F.3
Planning Action PA-L-2026-00020 Cont’d Hearing Ashland Planning Division Staff Report
Applicant: City of Ashland Page 1 of 4
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Providing a clear statement in F.5 and F.6 that a variance application would need to include
a recommendation from the Fire Code Official so that it would be available in the record
as part of the variance review process.
Finally, clarifying the variance criteria with some redundancy from the Variance Chapter
(i.e. “unique or unusual”) although the AMC 18.5.5 criteria will still apply. These changes
in F.6 aim to clarify that protecting natural areas could be a rationale for a steeper drive
through a variance, rather than a drive that met grade but involved greater disturbance of
natural areas.
The proposed new language is as follows:
F.Flag drive grades.
1.General standard. Flag drive grades shall not exceed a maximum grade of 15
percent.
2.Exception for lots created after the Hillside Development Standards. For
a flag drive serving a lot created on or after the effective date of the Hillside
Development Standards, Ordinance No. 2808, adopted December 3, 1997,
including a lot created through a flag lot partition, a variance may be granted
for a grade in excess of 15 percent but no greater than 18 percent.
3.Exception for lots of record predating the Hillside Development
Standards. For a flag drive serving a legal lot of record created before the
effective date of the Hillside Development Standards, Ordinance No. 2808,
adopted December 3, 1997, a variance may be granted for a grade in excess
of 15 percent \[ - option - , but no greater than 25 percent\].
4.Cumulative length limitation. The cumulative length of all sections of a flag
drive exceeding 15 percent grade approved through a variance under
subsection F.2 or F.3 shall not exceed 200 feet.
5.Fire Code compliance. A flag drive approved under a variance granted under
subsection F.2 or F.3 remains subject to the fire apparatus access
requirements of the Oregon Fire Code, including any approval required by the
Fire Code Official.
6.Variance criteria. A variance under subsection F.2 or F.3 shall meet the
criteria for approval in chapter 18.5.5, Variances. Circumstances supporting a
variance under this subsection include, but are not limited to, a demonstration,
based on a stamped engineer’s drawings, that no alignment meeting the
general 15 percent grade standard of this subsection can provide vehicular
access to a buildable area of the lot, or that a steeper alignment would better
avoid or reduce impacts to natural or physical features of the site, such as
water resource protection zones, trees, rock outcroppings, or areas best left in
an undisturbed natural state. In evaluating a variance under this subsection,
the approval authority may consider unique or unusual site conditions,
including topographic constraints, access limitations, and the avoidance or
reduction of impacts to natural and physical features, in determining whether
the requested grade is the minimum necessary to reasonably develop the lot
while minimizing site disturbance. The Fire Code Official shall make a
Planning Action PA-L-2026-00020 Cont’d Hearing Ashland Planning Division Staff Report
Applicant: City of Ashland Page 2 of 4
Total Page Number: 16Total Page Number: 82
recommendation on each variance application regarding fire apparatus access
and fir and life safety, and the recommendation shall be considered by the
approval authority.
B. Ownership Trigger
th
At the August 11meeting, Planning Commissioners also discussed the possibility of limiting a
steep-grade exception only to lots that have remained under the same ownership since the Hillside
Ordinance took effect in 1997. In staff research into Jackson County records, seven of the 13 lots
identified as potential candidates for driveway grade variances have changed hands since the
ordinance change in 1997.
In staff’s assessment, the problem with such an approach is that land use rights and limits in Oregon
almost always run with the land, not with a particular owner. Grandfathered and nonconforming
use rights transfer to new owners for exactly that reason, and there is no real tradition in municipal
codes of tying a development standard like a driveway grade to unbroken ownership. Owner-based
eligibility does typically show up in the farm and forest dwelling statutes, and even there the
legislature had to spell it out expressly, the courts read it narrowly, and the entitlement generally
still transfers once approved.
Were relief from the driveway grade standard to be conditioned upon continuous ownership, a lot
that its 1997 owner could build on today would become unbuildable the day it is sold or inherited,
which recreates the same no-relief problem the exception is meant to fix and pushes it onto buyers
and heirs who had nothing to do with when the lot was created. This would raise the city’s takings
exposure rather than lowering it, and it would be difficult to administer since staff would need to
track chain of title as an eligibility question, with the pool of qualifying lots shrinking over time
until none were left.
Staff would note that Measure 37 tried to do something similar by making relief turn on when an
owner acquired their property. It was essentially an ownership-date entitlement, and it created
enough legal and administrative problems that the voters had to pass Measure 49 a few years later
to rein it in and put the focus back on the land and clear standards. For staff, that history is a useful
caution to keep in mind. The fairness argument for favoring longtime owners over someone who
bought a steep lot knowing its limits is a real point the Commission can weigh, but it runs against
the overwhelming practice in Oregon land use, and staff's recommendation is that the entitlement
should run with the land so we are not creating unbuildable lots with no path to relief for future
owners.
II. Procedural
18.5.9.020 Applicability and Review Procedure
Applications for Plan Amendments and Zone Changes are as follows:
B. Type III. It may be necessary from time to time to make legislative
amendments in order to conform with the Comprehensive Plan or to meet other
changes in circumstances or conditions. The Type III procedure applies to the
creation, revision, or large-scale implementation of public policy requiring City
Planning Action PA-L-2026-00020 Cont’d Hearing Ashland Planning Division Staff Report
Applicant: City of Ashland Page 3 of 4
Total Page Number: 17Total Page Number: 83
Council approval and enactment of an ordinance; this includes adoption of
regulations, zone changes for large areas, zone changes requiring
comprehensive plan amendment, comprehensive plan map or text amendment,
annexations (see chapter 18.5.8 for annexation information), and urban growth
boundary amendments. The following planning actions shall be subject to the
Type III procedure.
1. Zone changes or amendments to the Zoning Map or other official maps,
except where minor amendments or corrections may be processed through
the Type II procedure pursuant to subsection 18.5.9.020.A, above.
2. Comprehensive Plan changes, including text and map changes or changes
to other official maps.
3. Land Use Ordinance amendments.
4. Urban Growth Boundary amendments.
C. Conclusions and Recommendations
th
In staff’s opinion, the revisions above respond to the issues raised on August 11 and continue to
provide a uniform, criteria-based relief mechanism for a defined set of lawfully created lots while
preserving the protective purpose of the Hillside Development Standards and the independence of
Fire Code review.
Staff recommend that the Planning Commission recommend approval of these proposed
amendments to the City Council. The proposed ordinance is scheduled for a public hearing and
first reading at the City Council on September 15, 2026.
D. Suggested Motion
“I move that the Planning Commission recommend that the City Council approve first reading
of Ordinance No. 3309, titled AN ORDINANCE RELATING TO VARIANCES FOR FLAG
DRIVE AND DRIVEWAY GRADES SERVING LEGAL LOTS OF RECORD CREATED
PRIOR TO THE ADOPTION OF THEHILLSIDE DEVELOPMENT STANDARDS;
th
AMENDING AMC 18.5.3.060, as amended in the August 25 staff report.”
Planning Action PA-L-2026-00020 Cont’d Hearing Ashland Planning Division Staff Report
Applicant: City of Ashland Page 4 of 4
Total Page Number: 18Total Page Number: 84
ORDINANCE NO. 3309
AN ORDINANCE AMENDING AMC 18.5.3.060 RELATING TO VARIANCES FOR
FLAG DRIVE AND DRIVEWAY GRADES SERVING LEGAL LOTS OF RECORD
CREATED PRIOR TO THE ADOPTION OF THE HILLSIDE DEVELOPMENT
STANDARDS
Annotated to show deletions and additions to the Ashland Municipal Code sections being
modified. Deletions are bold lined through, and additions are bold underlined, and
WHEREAS, Article 2. Section 1 of the Ashland City Charter provides:
unchanged text that is omitted for brevity is indicated by “. . .”
WHEREAS, Article 2. Section 1 of the Ashland City Charter provides:
Powers of the City. The City shall have all powers which the constitutions, statutes, and
common law of the United States and of this State expressly or impliedly grant or allow
municipalities, as fully as though this Charter specifically enumerated each of those
powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto,
shall possess all powers hereinafter specifically granted. All the authority thereof shall
have perpetual succession.
WHEREAS, the City of Ashland adopted the Hillside Development Standards through
Ordinance No. 2808 on December 3, 1997, establishing development standards for hillside lands,
including maximum grade standards for flag drives and driveways; and
WHEREAS, subsection 18.5.3.060.F of the Ashland Municipal Code limits flag drive grades to
a maximum of 15 percent and allows variances up to 18 percent for a limited cumulative length,
but does not provide a variance pathway for legal lots of record created before the effective date
of the Hillside Development Standards where topographic constraints prevent any driveway
alignment from meeting the maximum grade standards; and
WHEREAS,a review of the City’s buildable lands inventory and Geographic Information
System data identified 74 legal lots of record within the City of Ashland that were created before
the effective date of the Hillside Development Standard, of which 13 lots are potentially subject
to the Flag Drive standards to obtain compliant driveway access due to topographic constraints,
demonstrating that the amendment addresses a circumstance of citywide applicability rather than
an individual property; and
WHEREAS, land use decisions of the City, including decisions on variance applications, are
subject to review by the Oregon Land Use Board of Appeals (LUBA), and establishing clear and
objective approval criteria for driveway grade variances serving legal lots of record created
before the Hillside Development Standards provides an adequate factual base and reviewable
standards for such decisions; and
WHEREAS, in April 2026 the Land Use Board of Appeals remanded a City decision approving
a driveway grade variance, concluding that subsection 18.5.3.060.F as currently written does not
authorize a variance for a grade in excess of 18 percent under any circumstance; and
ORDINANCE NO. 3309 Page 1 of 4
Total Page Number: 19Total Page Number: 85
WHEREAS, a variance process for flag drive grades serving legal lots of record created before
the effective date of the Hillside Development Standards, Ordinance No. 2808 (adopted
December 3, 1997), where topographic constraints prevent compliance with maximum grade
standards, allows development of existing lots while preserving fire apparatus access
requirements under the Oregon Fire Code; and
WHEREAS, the Planning Commission of the City of Ashland considered the proposed
amendments at a duly advertised public hearing on August 11, 2026, which was continued to
August 25, 2026, where, following deliberations, the Commission recommended approval of the
amendments; and
WHEREAS, the City Council of the City of Ashland conducted a duly advertised public hearing
on the proposed amendments on September 15, 2026; and
WHEREAS, the City Council of the City of Ashland, following the close of the public hearing
and record, deliberated and conducted first and second readings approving adoption of the
Ordinance in accordance with Article 10 of the Ashland City Charter; and
WHEREAS, in order to protect and benefit the health, safety, and welfare of existing and future
residents of the City, it is necessary to amend the Ashland Municipal Code and Land Use
Ordinance in the manner proposed, an adequate factual base exists for the amendment, the
amendment is consistent with the Comprehensive Plan, and the amendment is fully supported by
the record of this proceeding.
THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS:
SECTION 1. Subsection 18.5.3.060.F \[Additional Preliminary Flag Lot Partition Plat Criteria\]
of the Ashland Municipal Code is hereby amended to read as follows, and the remainder of
section 18.5.3.060 remains unchanged:
18.5.3.060 Additional Preliminary Flag Lot Partition Plat Criteria
. ..
F. Flag drive grades shall not exceed a maximum grade of 15 percent. Variances may
be granted for flag drives for grades in excess of 15 percent but no greater than 18
percent; provided, that the cumulative length of such variances across multiple
sections of the flag drive does not exceed 200 feet. Such variances shall be required
to meet all of the criteria for approval in chapter 18.5.5, Variances..
F. Flag drive grades.
1. General standard. Flag drive grades shall not exceed a maximum grade
of 15 percent.
2. Exception for lots created after the Hillside Development Standards. For
a flag drive serving a lot created on or after the effective date of the
Hillside Development Standards, Ordinance No. 2808, adopted December
3, 1997, including a lot created through a flag lot partition, a variance
ORDINANCE NO. 3309 Page 2 of 4
Total Page Number: 20Total Page Number: 86
may be granted for a grade in excess of 15 percent but no greater than 18
percent.
3. Exception for lots of record predating the Hillside Development
Standards.For a flag drive serving a legal lot of record created before the
effective date of the Hillside Development Standards, Ordinance No.
2808, adopted December 3, 1997, a variance may be granted for a grade
in excess of 15 percent.
4. Cumulative length limitation. The cumulative length of all sections of a
flag drive exceeding 15 percent grade approved through a variance under
subsection F.2 or F.3 shall not exceed 200 feet.
5. Fire Code compliance. A flag drive approved under a variance granted
under subsection F.2 or F.3 remains subject to the fire apparatus access
requirements of the Oregon Fire Code, including any approval required
by the Fire Code Official.
6. Variance criteria. A variance under subsection F.2 or F.3 shall meet the
criteria for approval in chapter 18.5.5, Variances. Circumstances
supporting a variance under this subsection include, but are not limited
to, a demonstration based on stamped engineer’s drawings that no
alignment meeting the general 15 percent grade standard of this
subsection can provide vehicular access to a buildable area of the lot, or
that a steeper alignment would better avoid or reduce impacts to natural
or physical features of the site, such as water resource protection zones,
trees, rock outcroppings, or areas best left in an undisturbed natural
state. In evaluating a variance under this subsection, the approval
authority may consider unique or unusual site conditions, including
topographic constraints, access limitations, and the avoidance or
reduction of impacts to natural and physical features, in determining
whether the requested grade is the minimum necessary to reasonably
develop the lot while minimizing site disturbance. The Fire Code Official
shall make a recommendation on each variance application regarding fire
apparatus access and fir and life safety, and the recommendation shall be
considered by the approval authority.
SECTION 2. Severability. Each section of this ordinance, and any part thereof, is severable,
and if any part of this ordinance is held invalid by a court of competent jurisdiction, the
remainder of this ordinance shall remain in full force and effect.
SECTION 3. Codification. Provisions of this Ordinance shall be incorporated in the City Code
and the word “ordinance” may be changed to “code”, “article”, “section”, “chapter” or another
word, and the sections of this Ordinance may be renumbered, or re-lettered, provided however
that any Whereas clauses and boilerplate provisions (i.e. Sections 2 and 3) need not be codified
and the City Recorder is authorized to correct any cross-references and any typographical errors.
ORDINANCE NO. 3309 Page 3 of 4
Total Page Number: 21Total Page Number: 87
The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C)
of the City Charter on the _______day of____________________, 2026, and duly PASSED and
ADOPTED this _______day of____________________, 2026.
SIGNED and APPROVED this ________ day of __________________________, 2026.
ATTEST:
__________________________________
__________________________________Tonya Graham, Mayor
Alissa Kolodzinski, City Recorder
Reviewed as to form:
___________________________________
Johan Pietila, City Attorney
ORDINANCE NO. 3309 Page 4 of 4
Total Page Number: 22Total Page Number: 88
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Total Page Number: 93
“
”
Councilor Dahle and Councilor Sherrell have presented a requestto Council to direct
. These code
amendments are external to the current workplan of the department.
C
The Community Development Department has an establishedworkplanbased onpriorities
set by Counciland mandated by the State. This includes developing and implementing
strategies from the Housing Production Strategy, participating in the development of the
Transportation System Plan, preparing for code amendments related to the Community
n Plan, and implementing a number of state-mandate
changes. Moving forward with these newly code amendments will likely remove
or delay one or more of these priorities and thus should be considered in the context of the
Department’s full workplan.
Over thchanges that
shift a number of planning actions from legislative to administrative processes.
These changes include preparing new forms, new notices, new templates, ,
updating the website, etc. S’s capacity to prepare “code amendment concepts” for the
eighteen proposed amendments will be limited.
th
October 20with a project list of all ongoing
city-requested planning projects, so that Council can consider Councilor Dahle’s and
Councilor Sherrell’s proposal in the context of the department’s already established
workload.
Total Page Number: 94
William H. Sherlock • Attorney • Partner Dawn A. Furtado • Senior Paralegal
lsherlock@eugenelaw.com dfurtado@eugenelaw.com
Zack P. Mittge • Attorney
zmittge@eugenelaw.com
Emil J. Sadofsky • Attorney
esadofsky@eugenelaw.com
, 2025
Via E-mail: PC-public-testimony@ashland.or.us & derek.severson@ashlandoregon.gov
Ashland City Council
c/o Ashland Planning Department
Community Development and Engineering Services Building
51 Winburn Way
Ashland, OR 97520
RE: PA-L-2026-00020; Ordinance #3309
City File No. PA-L-2026-00020
Our Clients: Len and Karen Eisenberg, Kent and Pamela McLaughlin
DearPlanning Commission:
On behalf of our clients, Len and Karen Eisenberg, and Kent and Pamela McLaughlin, we hereby
provide comments in opposition to the proposed amendment to flag drive standards in the proposed
amendments to the City of Ashland Municipal Code. Please include this letter in the record of these
proceedings and provide copies of all future notices associated with the proposed amendments to our
office.
Our
office submitted a letter, dated August 10, 2026, in opposition to the original proposed language
of PA-L-2026-00020, and attorney Emil Sadofsky appeared at the August 11, 2026, Planning
Commission hearing to provide a statement summarizing our objections to the proposed ordinance
amending Ashland Municipal Code 18.5.3.060 (the “Ordinance”). Planning Commission staff’s
changes to the language of the Ordinance do not address the objections we raised, the concerns of
Ashland residents, or the Planning Commission’s reasoning for rejecting the Ordinance.
The proposed changes to the language of the Ordinance do not materially change the substance of the
Ordinance as originally drafted. The new language changes the paragraph structure and wording of
the Ordinance and may serve to make the Ordinance clearer. The new language also makes express
reference to variance criteria that were already applicable to the original ordinance. Nothing in the
Total Page Number: 95
Ashland City Council
August 25, 2026
Page 2 of 4
___________________________________________
new language addresses any of the concerns raised in our letter of August 10, 2026. A brief summary
of those arguments follows: (1) the proposed changes are contrary to state law; (2) the proposed
changes are contrary to the City of Ashland’s Comprehensive Plan; (3) the proposed changes are
contrary to the City of Ashland’s 2025 Community Wildfire Protection Plan; (4) the proposed changes
negatively impact environmental and geological public interest; (5) the proposed changes will make
Ashland an extreme outlier among Oregon municipalities with respect to the driveway grades it
allows; and (6) the proposed changes lack a reasonable relationship to legitimate development needs.
Our August 10, 2026, letter also noted that there was no indication that, underAMC 18.5.3.060.I,
Planning Commission staff consulted with the Fire Department. After testimony from the Fire
Department at the August 11, 2026, public hearing, we are convinced that the Fire Department was
consulted. However, the Fire Department representative’s failure to articulate objective standards for
when the Fire Department would deny a variance in excess of 18% does nothing to eliminate concerns
over subjective and ad hoc standards for approval of dangerously steep driveways. For a full treatment
of these issues, refer to our letter of August 10, 2026, which we have attached to this letter as Exhibit
1.
A. The City of Ashland’s Exposure to Inverse Condemnation Liability Based on the 1997 Hillside
Development Standards is Minimal.
Government action that deprives an owner of all economically viable uses of their land can constitute
a taking and entitle the owner to a claim for compensation against the government actor. Article I,
section 18, of the Oregon Constitution. An owner may also bring a federal claim under the Fifth
Amendment to the United States Constitution. Knick v. Twp. of Scott, 588 U.S. 180, 185 (2019). The
standard under Oregon law is that a regulation constitutes a taking only when it deprives the owner of
“any economically viable use of the property.” Coast Range Conifers, LLC v. State, 339 Ore. 136, 150
(2005). Oregon statutory law allowsownersto seek compensation for certain regulations that reduce
the value of their property. ORS 185.305. However, the statutory remedy is never available when the
regulation was passed for the protection of public health and safety. The Ordinance proposes to amend
the language of the Ashland Land Use Ordinance (“ALUO”) that expressly states its purpose to
“promote public health \[and\] safety…” AMC 18.5.3.010(D). Thus, the avenue for an owner of a
hillside lot to seek compensation from the City of Ashland for denial of a development permit based
on the city’s driveway grade is barred as a statutory claim.
Both Oregon and federal constitutional law require claimants alleging a regulatory taking show that
the challenged regulation deprived their property of all economically valuable uses. Regulations that
make a lot difficult to develop for the owners intended use do not give rise to a claimforcompensation
from the regulator. The burden is on the owner to show that no economically viable use is possible
given the regulatory framework. The City of Ashland’s exposure to a claim for compensation from
owners affected by the hillside development standardsisminimal because those owners must show
that the regulations render the parcel entirely unbuildable and unsuitable for any other use, including
sale to adjacent property owners. To makethis showing, the landowner must demonstrate that no
development plan or other use is available under the current regulatory framework.
Total Page Number: 96
Ashland City Council
August 25, 2026
Page 3 of 4
___________________________________________
B.The Proposed Changes Do Nothing to Insulate the City of Ashland Against Inverse Condemnation
Liability.
Under very limited circumstances, an owner canmake a federalclaim for compensation based on a
regulation reducing the value of the owner’s land; however, an owner’s knowledge of the regulation
at the time of purchase generally defeats such a claim. Where a regulation effects a reduction in value
of land the court considers: (1) the economic impact of the regulation on the claimant; (2) the extent
to which the regulation has interfered with investment-backed expectations; and(3) the character of
the governmental actions. Bridge Aina Le'a, LLC v. State Land Use Comm'n, 950 F.3d 610, 617
(2020). Where owners purchased land with constructive knowledge of pending land use regulations
that would reduce the land’s value, the court held that the owner had no reasonable investment backed
expectations of using the land in a manner that did not conform with the pending regulations. Dodd v.
Hood River County, 317 Ore. 172, 185 (1993). The existence of Ashland’s already adopted hillside
development standards is an even stronger argument against investment backed expectationsthan in
Dodd because the regulations in Dodd had not been fully adopted at the time the landowners took
possession. Any owners seeking compensation under federal law for the reduction in value of their
land based on the hillside development standards will need to demonstrate thattheir possession of the
land occurred prior to their notice of the Ashland hillside development standards.
C. The Planning Commission Has Already Rejected the Ordinance for Good Reason.
The proposed changes to the Ordinance do nothing to ameliorate the concerns of residents or the
potential risks to public safety and health. At the August 11, 2026, public hearing, the Planning
Commission voted unanimously to reject the Ordinance. Commissioner Maher’s motion was based on
the importance of considering the safety and legality of driveway slopes and whether increasing the
variance served the public good. He questioned the benefit to the public of making an exception for
such a small number of lots. Commissioner Maher’s concerns are well founded. Passing the Ordinance
caters to the desires of a small group of elite landowners and disregards the needs and safety of the
vast majority of Ashland residents.
After the Planning Commission passed the motion to deny the Ordinance, the Planning Commission
passed another motion to continue the hearing with amended language. The stated reasoning for the
second motions was to: (1) create a more clear and objective standard; (2) to include language that
limits application of the variance exception to owners who had purchased the lot after adoption of the
city hillside standards. The proposed new language of the Ordinance does nothing to address the
Planning Commission’s requests. The new language does not create a more clear and objective
standard. Instead, it references directly the standards that would already have been applied to a
variance request. The proposed new language does not limit the application of the variance exception
to legacy owners, failing to provide the City of Ashland with additional protections against inverse
condemnation exposure.
Total Page Number: 97
Ashland City Council
August 25, 2026
Page 4 of 4
___________________________________________
D.Conclusion
The new language of the Ordinance is substantively indistinguishable from the original language. The
Planning Commission has already rejected this proposal for good reason. The Ordinance endangers
the public for the benefit of the small group of wealthy landowners. We urge the Planning Commission
to remain consistent in their rejection of the Ordinance.
Very truly yours,
H UTCHINSON C OX
William H. Sherlock
Zack P. Mittge
EmilJ. Sadofsky
EJS/df
Total Page Number: 98
EXHIBIT 1
William H. Sherlock • Attorney • Partner Dawn A. Furtado • Senior Paralegal
lsherlock@eugenelaw.com dfurtado@eugenelaw.com
Zack P. Mittge • Attorney
zmittge@eugenelaw.com
August 10, 2026
Via E-mail PC-public-testimony@ashlandoregon.gov and derek.severson@ashlandoregon.gov
Ashland Planning Commission
c/o Planning Supervisor Derek Severson
Ashland Planning Department
20 East Main Street
Ashland, OR 97520
RE: PA-L-2026-00020; Ordinance #3309
City File No.: PA-L-2026-00020
Our Clients: Len and Karen Eisenberg, Kent and Pamela McLaughlin
Dear Planning Commissioners:
On behalf of our clients, Len and Karen Eisenberg, and Kent and Pamela McLaughlin, we hereby
provide comments in opposition to the proposed legislative amendment (Ordinance #3309) to flag
drive standards in the proposed amendments to the City of Ashland Municipal Code. Please include
this letter in the record of these proceedings and provide copies of all future notices associated with
the proposed amendments to our office.
A.The Proposed Changes are Contrary to State Law.
Although the City staff initially packaged the flag driveway amendments with the legislative
amendments for Oregon Senate Bill (SB) 974 (2025), the proposed amendments to the flag drive
standards at Ashland Land Use Ordinances (ALUO) 18.5.3.060.F are both contrary to state law and
not legislatively required.
Oregon municipalities exercise planning and zoning responsibilities in accordance with state
comprehensive land use planning requirements. ORS 197.175 mandates that cities and counties
prepare, adopt, amend, and revise comprehensive plans in compliance with goals approved by the
Land Conservation and Development Commission and enact land use regulations to implement those
comprehensive plans. ORS § 197.175. The Oregon Legislative Assembly has found that
uncoordinated land use threatens the orderly development, environment, health, safety, order,
convenience, prosperity, and welfare of the people of Oregon. ORS § 197.005.
Total Page Number: 99
EXHIBIT 1
Ashland City Council
August 10, 2026
Page 2 of 10
___________________________________________
Pursuant to ORS 197.180, state agencies and local governments must carry out planning duties and
take actions affecting land use in compliance with adopted goals and in a manner compatible with
acknowledged comprehensive plans and land use regulations. ORS § 197.180. Due to the statewide
concern relating to the availability of safe housing, local governments must ensure that development
standards do not discourage needed housing through unreasonable cost or delay. ORS
197.307. However, local governments must maintain clear and objective standards for safety through
the authorized issuance of land use regulations that restrict or prohibit activities for the protection of
public health and safety. ORS § 195.305(3)(b).
While SB 974 was adopted in June of 2025 to streamline certain residential development processes, it
is very careful not to impact residential design standards that protect the public from natural hazards,
and particularly the risk of fire. Indeed, the Senate Bill’s streamlining expressly “does not apply to
land use regulations or requirements that are related to…accessibility, fire ingress or egress, public
health or safety…or that implement statewide planning goals relating to….natural hazards.” SB 974,
§ 8(2).
However, staff are still trying to boot-strap amendments to section 18.5.3.060.F, which would
adversely impact accessibility, fire ingress and egress, public health and safety, and the City’s attempts
to protect the public from natural hazards.
The specific provision at issue, section 18.5.3.060.F, establishes the maximum grade for driveways
that serve flag lots. Under the land use standards currently in effect, the maximum grade for a flag
1
drive is 15%, but the City may permit variances which allow driveway grades up to 18%.
As the Oregon Land Use Board of Appeals (LUBA), recently determined “\[t\]he plain terms of ALUO
18.5.3.060.F do not allow a variance of over 18 percent grade.” Eisenberg et al. v. City of Ashland, Or.
LUBA (LUBA No. 2025-053; April 29, 2026) (slip op at 15).
The proposed amendments would eliminate that 18% maximum grade cap for flag drives serving legal
lots of record that were created before the effective date of the Hillside Development Standards,
Ordinance #2808 (adopted December 3, 1997). Under the terms of the proposed amendments, the
18% cap on flag drive grades does not apply to these existing lots and would only expressly apply to
2
new flag drives after the date of the amendment.
1
“Flag drive grades shall not exceed a maximum grade of 15 percent. Variances may be granted for flag drives for grades
in excess of 15 percent but no greater than 18 percent; provided, that the cumulative length of such variances across
multiple sections of the flag drive does not exceed 200 feet. Such variances shall be required to meet all of the criteria for
approval in chapter 18.5.5, Variances.”
2
“Flag drive grades shall not exceed a maximum grade of 15 percent. Variances may be granted for flag drives serving
newly created lots for grades in excess of 15 percent but no greater than 18 percent; provided that the cumulative length
of such variances across multiple sections of the flag drive does not exceed 200 feet. Variances may also be approved for
grades in excess of 18 percent for driveways serving pre-existing legal lots of record which would otherwise be
inaccessible. Such variances shall be required to meet all of the criteria for approval in chapter 18.5.5, Variances.”
Total Page Number: 100
EXHIBIT 1
Ashland City Council
August 10, 2026
Page 3 of 10
___________________________________________
The Oregon State Fire Code establishes minimum standards for the protection of life and property
against fire, based on applicable standards prescribed from time to time by the National Fire
Protections Association. ORS § 476.120; OAR 837-039-0006(1). To establish uniform protections
throughout the state, the Oregon state legislature charged local jurisdictions with adopting either the
state fire code or a local fire code that is equal to or more stringent than the protections in the state fire
code standards. OAR 837-039-0006(2).
In this case, the proposed amendment is contrary to state law, as it would allow development that is
inconsistent with the slope requirements of the fire code. In particular, Appendix D, section D103.2
of the Oregon Fire Code, adopted and unmodified by the City of Ashland, specifies that “Fire apparatus
34
access roads shall not exceed 10% in grade.”
Or. Fire Code app. D, § D103.2 (2025).
As mentioned, SB 974 does not require the City to adopt variance standards to its fire ingress or egress
standards. Additionally, the proposed amendments are contrary to the minimum standards imposed
by the Oregon Fire Code. Therefore, we respectfully request that the Planning Commission
recommend removal of the proposed amendments to ALUO 18.5.3.060.F.
B. The proposed change is contrary to the City of Ashland’s Comprehensive Plan.
The proposed amendments to ALUO 18.5.3.060.F are also inconsistent with the City’s comprehensive
plan and specifically the City’s wildfire hazard provisions. The City’s comprehensive plan emphasizes
the heightened risk and significant adverse impacts posed by wildfire in the community and
particularly the risks of fire in the wildland/urban interface stating:
Wildfire hazard presents an unusually high threat to very important area environmental
resources in Ashland, particularly in the forested area south of town. A wildfire in that
area would adversely affect soils and slope stability and lead to increased erosion. If
wildfire reached the Ashland watershed, resulting erosion would affect drinking water
quality. Vegetation loss during a wildfire would increase precipitation runoff, thereby
increasing flood potential. It would reduce shade and increase stream temperatures –
a condition that would adversely affect fish resources. Air quality would suffer during
the wildfire burn, especially if the valley was experiencing an air inversion – a frequent
event during the local wildfire season.
* * * *
During the past decade many people have declared their intention to ‘get back to
nature.’ Many people are leaving metropolitan areas, building houses in forested
natural settings, and leaving vegetation right up to the sides of their dwelling. Although
3
The provision of Appendix D is specifically adopted into the requirements of the Oregon Fire Code by section 101.2.1.
4
ORC app. D, §103.2 was adopted by the City of Ashland in its Municipal Code under Section 15.28.010 and left
unmodified by Section 15.28.070.
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EXHIBIT 1
Ashland City Council
August 10, 2026
Page 4 of 10
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no guarantee can protect a house in such a setting from wildfire, preventative measures
can be taken to reduce the hazard.Recent land use policies have put added
development pressure on hillsides and valley lands are not being preserved for
agricultural purposes. The Ashland city limits abut National Forest land in these
hillside areas which lead immediately into the Ashland Watershed.
City of Ashland, Or., Comprehensive Plan § 4.25, at 29–30 (July 2005). \[hereinafter Comprehensive
Plan\]. To protect “life, property and environmental resources in Ashland’s suburban/wildland
interface area from the devastating effects of wildfire” and to decrease the risks of wildfire “spreading
to the Ashland watershed from the urban/wildland interface area” the City makes a special provision
for fire access. Id. at 31. Specifically, Policy 49 of the Comprehensive Plan requires “more than one
ingress/egress route or road widths wide enough to accommodate incoming fire apparatus and
evacuating residents simultaneously in an emergency situation.” Comprehensive Plan § 4.25, Policy
49, at 31 (July 2005).
In essence, this policy requires that at least one access point must be sufficient to accommodate fire
apparatus and emergency response access. Because ALUO 18.5.3.060.I designates all flag drives as
Fire Apparatus Access Roads subject to the Oregon Fire Code requirements and because flag drives
typically are the sole access point to properties on flag lots, the proposed elimination of the maximum
variance grade of 18% is contrary to Ashland policy and would insufficiently accommodate flag lot
access to fire apparatus and emergency response vehicles.
The 10% grade selected for the Oregon Fire Code recognizes the limitations of fire and emergency
vehicles. A fire truck when fully loaded can weigh in excess of 30,000 to 80,000 pounds. Grades of
fire apparatus access routes can severely impact the ability of these vehicles to access a fire, as a
driveway that has an angle of approach that it too steep for the vehicle will be inaccessible. Moreover,
steep grades pose significant risks for these vehicles that can stall on steep grades or lose traction and
braking ability (particularly during adverse weather conditions such as rain, snow or ice).
As the proposed amendment would make the sole fire apparatus access for flag lots insufficient to
accommodate fire apparatus and emergency response vehicles, it poses an unacceptable risk to
dwellings with the wildland/urban interface as well as a heightened community-wide risk of fire,
erosion, flooding, and impact to the City’s drinking water. Accordingly, we respectfully request that
the Planning Commission recommend denial of this aspect of the proposed amendment.
C. The proposed change is inconsistent with the City of Ashland’s 2025 Community Wildfire
Protection Plan.
In October of 2025, partially in response to the 2020 Almeda Fire which ignited within the Ashland
City limits and “devastated neighboring communities and claimed three lives,” the City proactively
adopted its Community Wildfire Protection Plan (CWPP). The CWPP is a comprehensive blueprint to
protect Ashland from wildfires designed around a series of specific initiatives. City of Ashland, 2025
Ashland Community Wildfire Protection Plan 20, 23 (June 24, 2025) \[hereinafter Ashland CWPP\].
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EXHIBIT 1
Ashland City Council
August 10, 2026
Page 5 of 10
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As with the comprehensive plan, the CWPP emphasizes the difficulties posed by development within
the wildland/urban interface, and specifically the risks posed by limited evacuation routes:
It is not a question of if, but when, another major wildfire will affect Ashland. How and
where that fire (and subsequent fires) burns could profoundly shape the city’s future.
While we may be fortunate once again, there is also the risk of a worse-case scenario.
Assessments show that Ashland and nearby communities face high wildfire risk, driven
by natural conditions and human influences. The growing built environment, including
homes, infrastructure, and cultural landmarks is increasingly vulnerable due to
expansion into fire-prone areas and limited evacuation routes (Federal Emergency
Management Agency \[FEMA\], 2023).
Ashland CWPP, at 68 (emphasis added). The CWPP identifies evacuation as the top concern amongst
Ashland residents. Id.at 90.Driveway length and width were also evaluated as “they play a crucial
role in allowing first responders to reach properties safely and ensuring a smooth evacuation for
occupants.” Id. at 91. The CWPP requires that the City “\[a\]ssess wildfire hazards on primary
evacuation routes and possible refuge areas and mitigate.” Id. at 102, HS-2.1.
The proposed amendment contradicts this initiative. Steeper flag drives would allow the creation of
additional residential development in the wildland/urban interface which would be inaccessible to first
5
responders attempting to reach the property, and on slopes that are prone to rapid and intense fires.
Moreover, allowing lots of record to merely opt out of necessary fire access via the City’s variance
process runs directly counter to the City’s commitment to “Bolster wildfire resilience requirements for
city development through consistent planning and zoning.” Ashland CWPP, at 196, CO-1.2
(emphasis added).
Wildfire risks are a citywide concern and require consistent application of current standards to ensure
citywide protection. As the proposed amendments to ALUO 18.5.3.060.F constitute abject favoritism
to allow a single property to jeopardize the fire safety for the entire community based on a special
variance carve-out in the code, the amendments are wholly inconsistent with the CWPP and should
not be incorporated with the proposed amendments.
5
As pointed out in the comprehensive plan:
“Steep slopes intensify wildfire in two ways. They increase precipitation runoff, decrease soil moisture and create dry
vegetation. Vegetation moisture stress was particularly evident in the summer of 1981 when Fall seemed to come
early to the hills south of town. This leaf color change was not ‘fall color,’ but drying caused by a lack of
moisture. Wildfire also burns more intensely and faster on a steep slope by pre-heating the vegetation ahead of the
actual fire front. Narrow, steep canyons act very much like a chimney during a wildfire, funneling heat and fire
upward.” Comprehensive Plan, § 4.25, at 30.
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EXHIBIT 1
Ashland City Council
August 10, 2026
Page 6 of 10
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D.The Proposed Amendments to ALUO 18.5.3.060.F Negatively Impact Environmental and
Geological Public Interest.
Beyond wildfire prevention, the City of Ashland’s existing regulations explicitly recognize that
development on steep slopes creates environmental and geological hazards including soil erosion,
sedimentation of lower slopes, and slope failure. Comprehensive Plan § 4.11, at 10-12 (July 2005).
The current regulatory framework aims to protect natural and topographic character, environmental
resources, aesthetic qualities, and restorative value of lands. Comprehensive Plan § 4.11, Policy 5,
Policy 13, at 11-12 (July 2005). Increasing permissible grades for flag drives would directly undermine
these protective purposes by authorizing more intensive disturbance of steep terrain.
The proposed amendment would increase the cumulative length and steepness of grading permitted
for flag drive construction, thereby expanding the area of hillside disturbance and intensifying erosion
potential. Steeper grades accelerate stormwater runoff velocity, increasing erosive force and sediment
transport to lower slopes. Construction of driveways on grades exceeding current variance limits
would require more extensive cut-and-fill operations, resulting in the destabilization of natural slope
profiles and increasing landslide risk.
Multiple Oregon jurisdictions require geotechnical reports prepared by registered engineering
geologists or geotechnical engineers for development on slopes of 15% or greater, recognizing that
professional analysis of site geology, soil strength, slope stability, and erosion potential is essential to
protect public safety and environmental resources. Lebanon, Or., Municipal Code § 16.11.040 (2026).
These reports must demonstrate that proposed development will result in suitable, stable building sites
and must provide recommendations for grading procedures, corrective measures, and methods to
maintain slope stability while minimizing erosion and environmental variance from natural conditions.
Lebanon Municipal Code § 16.11.040. The necessity for such professional analysis underscores the
significant geological risks associated with steep slope development. Increasing permissible flag drive
variance grades would only exacerbate these risks.
E. The Proposed Amendments to ALUO 18.5.3.060.F Would Allow Flag Driveway Grades
Far Steeper Than Any Other Jurisdiction in Oregon.
A search through multiple county and city codes throughout counties or towns in Oregon demonstrate
that no other jurisdiction would allow flag lot driveways with a 24% grade, which is the grade of the
above referenced DeBoer property that is clearly the subject of this proposed and ill-advised code
amendment. This consistent recognition that steep grading poses heightened safety risks that require
strict and consistent regulation is only furthered by the county and city codes’ shared common
purposes: ensuring public health, safety, and general welfare; addressing potential risks from steeply
sloped sites and geologic hazard areas; minimizing hazards from fire, water, and unstable soils;
ensuring slope stability and environmental resource protection; and reducing risks of hillside erosion,
sedimentation, landslide damage, loss of vehicular control, impediments to emergency access, and
infrastructure failures.
Total Page Number: 104
EXHIBIT 1
Ashland City Council
August 10, 2026
Page 7 of 10
___________________________________________
Jackson County, Oregon
Jackson County’s Land Development Ordinance 9.9.5.A.5 states that, “\[w\]hen the road grade exceeds
10%, the fire district or, if not within a fire district, the County fire safety inspector or Department of
Forestry shall be consulted to determine whether additional fire safety measures are necessary to allow
for a maximum finished grade of 15%. A grade of up to 18% may be allowed for intervals of up to 100
feet provided there are no more than three (3) 100-foot sections of over 15% grade per 1,000 feet. The
approach from a public road or private road cannot exceed 10% grade for a distance of 40 feet.”
Oregon City, Oregon
In Oregon City, “\[n\]o driveway with a slope of greater than fifteen percent shall be permitted without
approval of the city engineer.” Oregon City, Or., Municipal Code § 16.12.035.K.3. Additionally, the
city engineer is authorized to deny driveway access if a proposed driveway would cause a significant
traffic safety hazard. Oregon City, Or., Municipal Code § 16.12.035.L.
Portland, Oregon
Portland allows driveway grades up to 15%. Additionally, Portland permits grades up to 18% with
sprinklers, if approved by the fire official. Portland, Or., City Code tit. 17, § 17.28.110 (2026).
Lake Oswego, Oregon
Lake Oswego strictly follows the Oregon Fire Code for grading maximums. Consequently, Lake
Oswego’s maximum driveway grade is set at 10%, with exceptions upon approval up to 15% as grades
greater than 15% add additional hazards and create the possibility of hazardous conditions for
firefighting and medical responses.
Roseburg, Oregon
Roseburg’s development regulations require that a driveway used to access parking must have a
maximum grade of 15% at any point. Roseburg, Or., Municipal Code § 12.06.030(Q)(4) (2026).
Additionally, with the approval of the Fire Chief, driveways that are greater than 12% grade and 100
feet in length may have intermittent sections of grades up to a maximum of 20% provided that: (i) The
100-foot distance back from the structure maintains the 15% grade described herein; (ii) Travel widths,
turnouts, and level pad areas are provided as determined necessary for fire protection and emergency
access purposes; and (iii) An approved fire apparatus turnaround area having a grade no greater than
10% is provided. Roseburg Municipal Code § 12.04.100(D)(8)(e).
Furthermore, Roseburg's hillside development overlay regulations apply to areas with slopes greater
than 12% and require that development ensure public health, safety, and general welfare while
addressing risks from steeply sloped sites and geologic hazard areas. Roseburg Municipal Code §
12.04.100(A), (C). The regulations aim to minimize hazards from fire, water, and unstable soils, ensure
Total Page Number: 105
EXHIBIT 1
Ashland City Council
August 10, 2026
Page 8 of 10
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slope stability, protect environmental resources, and reduce risks of erosion, sedimentation, and
landslide damage. Roseburg Municipal Code § 12.04.100(A). The City has authority to issue stop
work orders and require restoration when development alters hillside areas in violation of code
provisions, as such development constitutes a public nuisance posing risks to public health, safety, and
welfare. Roseburg Municipal Code § 12.04.100.
Lebanon, Oregon
Lebanon's steep slope development overlay zone applies to residential areas with slopes of 15% or
greater to provide for adequate access for emergency services, protect public health and safety, and
minimize the potential for earth movement and resultant hazards to life and property, among other key
purposes. Lebanon Municipal Code § 16.11.040(A). Except for lots, parcels and roads created prior to
the adoption of Lebanon’s 1980 Comprehensive Plan and its 1980 Zoning Ordinance, Lebanon’s code
does not permit new driveways where street grades exceed 15%. Lebanon Municipal Code §
16.11.040(E)(2)(b)(i).
Sheridan, Oregon
Sheridan’s hillside development overlay applies to properties with slopes of 10% or greater. Sheridan,
Or., Municipal Code § 16.290.020 (2025). Sheridan’s code requires that grades and alignments of
driveways in hillside areas must provide maximum safety and convenience, with maximum
intermittent grades of 15% for maximum distances of 200 feet and maximum sustained grades of 10%.
Sheridan Municipal Code § 16.290.090. Grading performed within hillside development areas must
account for environmental characteristics including geological features, stream beds, drainageways,
and tree cover, and must utilize best engineering practices to avoid erosion, slides, and flooding while
having minimal environmental effect. Sheridan Municipal Code § 16.290.100(A).
Phoenix, Oregon
Phoenix strongly discourages flag lots within its boundaries, but where proposed, flag lot grading may
not exceed 12% with allowances for residential streets to have segments with grades up to 15% for
distances no greater than 250ft. Phoenix, Or., Land Dev. Code § 3.5.2(I)(3) (2026).
F. The Proposed Amendments to ALUO 18.5.3.060.F Do Not Appear to Comply with ORS
§ 368.039(3).
Under AMC 18.5.3.060.I: “Flag drives and fire work areas shall be deemed Fire Apparatus Access
Roads under the Oregon Fire Code and subject to all requirements thereof.” Accordingly, flag drives
are deemed Fire Apparatus Access Roads and are therefore subject to ORS 368.039, which states, in
relevant part:
3. Before adopting or amending any comprehensive plan, land use regulation or
ordinance that establishes specifications and standards for roads and streets, a
Total Page Number: 106
EXHIBIT 1
Ashland City Council
August 10, 2026
Page 9 of 10
___________________________________________
governing body of a county or city shall consult with the municipal fire department or
other local firefighting agency concerning the proposed specifications and standards.
The county or city governing body shall consider the needs of the fire department or
firefighting agency when adopting the final specifications and standards. \[1997 c.409
§1\]
ORS § 368.039. It does not appear from the material provided to the public thus far that the City has
consulted the local Fire Marshal or Fire Department as to the advisability of allowing the development
of a flag lot that has only a single access driveway in excess of 200 feet with a 24% grade.
G.The Proposed Amendments to ALUO 18.5.3.060.F Lack a Reasonable Relationship to
Legitimate Development Needs.
Oregon law requires that land use regulations imposing conditions or restrictions on development bear
a reasonable relationship or nexus to the impacts created by the proposed use. Dolan v. City of Tigard,
512 U.S. 374, 387 (1994). A regulatory requirement must be roughly proportional to the use of the
property rather than serving as a pretextual excuse for imposing conditions when a landowner seeks
permits. Id. at 391. Conversely, an amendment that relaxes protective standards of variances must
demonstrate that the relaxed standards adequately protect legitimate public interests and that special
circumstances relating to a specific piece of land make compliance with applicable zoning provisions
“an undue or unnecessary hardship.” Id. at 380.
The proposed amendment seeks to accommodate a specific development proposal requiring driveway
grades exceeding current variance limits. However, the fact that a particular parcel's topography is
incompatible with existing safety and environmental standards further evidences that increased or
eliminated grading maximums are unreasonable and unsafe. Oregon municipalities consistently
maintain that slopes of certain steepness present inherent unsuitability for development regardless of
individual landowner preferences. The proposed amendment would move regulatory policy away from
this protective framework without evidence of safely accommodated increased grades or adequately
protecting legitimate public interests including public health and safety and mitigation of
environmental and geological impacts.
Oregon's statewide land use planning framework emphasizes coordination to protect health, safety,
and environmental quality. ORS § 197.005. The overarching principles guiding Oregon's land use
program include providing a healthy environment, ensuring a desirable quality of life, and equitably
allocating benefits and burdens of land use planning ORS § 197.010. Relaxing hillside development
standards to accommodate individual development preferences would shift safety and environmental
burdens onto the broader community while concentrating development benefits to individual
landowners, contrary to these equitable allocation principles.
Total Page Number: 107
EXHIBIT 1
Ashland City Council
August 10, 2026
Page 10 of 10
___________________________________________
Conclusion
Oregon law expressly authorizes municipalities to enact land use regulations that restrict or prohibit
activities for protection of public health and safety. ORS § 195.305. The current 18% variance limit
for flag drives represents a carefully calibrated balance between development opportunityand public
health and safety protection. Eliminating this threshold would move Ashland's standards in the
opposite direction from the protective approach reflected in Ashland’s existing regulations and
comparable Oregon jurisdictions and would undermine the foundational public health and safety
purposes of the municipal code.
Neither Oregon law nor SB 974 requires the proposed amendment ALUO 18.5.3.060.F. The proposed
amendment is not only contrary to fire protections in state law, the Ashland Comprehensive Plan, and
the 2025 Ashland Community Wildfire Protection Plan, but arealso contrary to other critical
environmental and geological concerns.
Oregon law authorizes municipalities to restrict development to protect public health, safety, and
environmental resources, and courts recognize that property access rights are subordinate to legitimate
governmental interests in regulating steep slope development. The proposed amendment lacks
reasonable justification, as the unsuitability of certain parcels for development under existing
standards does not establish that Ashland should weaken those standards. Maintaining current grade
limitations protectsthe public health, safety, environmental quality, and long-term community welfare
that Ashland's code regulations already aim to secure.
Thus, we respectfully request that the Planning Commission recommend rejection of the proposed
variance amendment.
Respectfully submitted,
H UTCHINSON C OX
William H. Sherlock
Zack P. Mittge
WHS/df
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August 25, 2026
MEMORANDUM
TO: Ashland Planning Commission
FR: Jay Lininger
RE: Proposed O (PA-L-2026-00020
I believe the proposed ordinance amending the Ashland land use code is necessary because
leaving the code as-is would create a new level of certainty that none of the 13 lots at issue will
have reasonable access by private vehicles——even though the lots
1
a public street. The certainty of no access is new because, since 1997,
the city granted variances to the current grade standardreasoning that prior
2
th
Amendment in
Leaving the land use codeunchanged could ripen a taking claim under the 14
two scenarios: (1) if total loss of viable economic use as in Lucas; or else(2) if
3
use remains, as in Penn Central. Each
scenario is fact-dependent, and neither one is a slam-dunk, but a Lucas scenario would be
unfavorable to the city, and I believe we have a duty to sidestep that landmine.
Wnow realizethat a variance procedure must treat all of the
3, 1997, the same regardless of the vintage of
1
See State ex. rel. Dept. Transp. v. Alderwoods
appurtenant for limited purpose of fee real estate property
2
PA-L-2026-00020, Aug. 11, 2026, p. 1.
3
See Lucas v. So. Carolina Coastal Council
causing total loss of viable economic use); Penn Central v. City of New York, 438 U.S. 104 (1978) (taking
claim of diminished property value, without total loss of economic use, subject to three-factor test);
Palazzolo v. Rhode Island, 533 U.S. 606, 620 (2001) (“landowner may not establish a taking
before a land-use authority has the opportunity, using its own reasonable procedures, to decide and
).
The “Nollan/Dolan at the August 11, 2026, business
proposed Ordinance 3309 because the ordinance would not interfere with
the property right of exclusive use by e.g., easement for access or
infrastructure) in exchange for approval of a development permit See Dolan v. City of
Tigard, 512 U.S. 374 (1994); Nollan v. Cal. Coastal Com’n, 483 U.S. 825 (1987); also see Tahoe-Sierra
, 302, 323-physical
takings from regulatory takings); Lingle v. Chevron USA, 544 U.S. 528 (2005) ( four scenarios
- 1 of 2 -
estate on each lot. The common law of property in Oregon establishes a right of reasonable
access to any lot road in the form of an easement appurtenant that runs with
4
may development of the easement
.
5
for community welfare, but it cannot the easement without liability for taking.
Moreover, dthe lots at issue by establishment of current estate would not protect
the city from taking claims because the U.S. Supreme Court held that one state’s
remedy for government
taking of property would be available property owners with the passage
6
7
for someof the reasons stated in the report, and for the reasons statedabove.
before December 3, 1997, in order to protect taxpayers from liability for taking private property,
what should the approval criteria include?
AMC 18.5.5.050
apply the limit of 100-new driveway on slopes greater than 35 percent
stated in AMC 18.3.10.090.A.3.b. If the variance approval criteria do not apply that limit on
driveway grade, then I will move to amend the proposed ordinance to clarify in
that the limit stated in AMC 18.3.10.090.A.3.b will apply to the lots described in .
for Hillside Lands will
4
Alderwoods, 358 Or. at 511-13.
5
Id., 522; accord Palazzolo, 533 U.S. at 627 (“The right to improve property … is subject to the
reasonable exercise of state authority, including the enforcement of valid zoning and land-use
.
6
Id., 627-28 (“
accord U.S. v Dickinson, 331 U.S. 745, 748-49 (1947) (
taking claim of owner whose estate post-government intent to drown property).
7
PA-L-2026-00020, Aug. 25, 2026, p. 3.
that landowners of newer vintage knew, or should have known, about the
a facially plausible argument to apply ORS 195.305 to
the proposed ordinance. However, the argument probably would not survive judicial review of a taking
claim subject to the Palazzolo and Dickinson precedents cited above.
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