HomeMy WebLinkAbout1975-1007 SCANNELL FINDINGS2
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BEFORE THE CITY COUNCIL OF
In the Matter of the Appeal
on the Variance and
Minor Land Partition
of
Gerald J. Scannell, Jr.
THE CITY OF ASHLAND
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FINDINGS OF FACT
10 These findings of fact are written pursuant to the Council over-
I1 ruling a recommendation of the Planning Commission concerning a minor
12 land partition applied for by Gerald J. Scannell, Jr., said meeting
13 being held on July 15, 1975. Those present were councilmen,
14 McCannon, Craig Hoffarth, Don Laws and Marjorie McDowell.
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A public hearing being had and statements being made by the
undersigned and Murray Gardiner concerning the application and state-
ments opposing the application being made by Vaughan Bornett, Mr. and
Mrs. Joe Fader, Mr. and Mrs. A1 Carver, and others. It appearing
that the minor land partition was applied for by Mr. Scannell and
that there is a section in the ordinance which requires that if a
lot is deeper than 150 feet in a B8 R1 district, that the lot must
be 100 feet wide; further that if the lot is 150 feet in depth or
less the lot cannot be wider than 80 feet.
There was much discussion and many questions put to the staff,
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Mr. Dale Himes and Mr. Karl Mawson, both of whom recommended that
the variance be granted in their staff report. The city attorney
rendered the opinion that in order for the variance to be allowed
as to the width of the lots, the request had to meet three criteria
pursuant to section 18:64.020. The council having before it the
application, the result of the hearing before the planning commission,
the pictures presented by Mr. Himes for the staff, and a rather long
petition which Mr. Almquist read to the council stating that he had
just received it prior to the meeting. The applicant was not aware
that there was any such petition until he arrived at the meeting.
However, since that time, the applicant has received calls from
neighbors in the area who indicated that they were approached two
days before and were told that the application was presented to the
meeting the night before or the day of the meeting. This is not
perhaps germain to the findings of fact but it would seem that the
applicant should have access to such a petition in future cases
prior to the meeting so that he may be prepared to answer the things
that arise pursuant to said petition.
There was a vote held and three of the council members voted to
over-rule said denial by the planning commission and one, Dr. Laws,
found that it did not meet the three requirements that the city
attorney stated were necessary. There was further testimony that
the land did not slope to the Northwest, except in about the last
25 feet of the property.
After the public hearing was held and Dr. Laws questioned the
Findings of Fact - 2
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applicant extensively concerning the requirements as he saw them,
and he felt that they were not met and voted No; the other 3
council members after the public hearing felt that they were met
and voted Aye.
There being evidence presented by the applicant that the property
had been up for sale for some time; that this was the first offer
made on said property; that the lots in the area ranged from the
9 size which will exist in the new land as partitioned, a copy of
10 said plat being attached hereto and made a part hereof as though
11 fully incorporated herein; that there had been some 19 applications
12 for such a variance in past months and this was the first time that
13 a variance of this nature was denied; that there had been an
14 application approved on Granite Street which allowed a variance of
the lot width of 80 feet to a depth of 203 feet, on a very steep
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grade, the majority of the lot in question being unusable. It
appearing to the council that all of the subject property would be
usable. The council feeling that the extraordinary circumstances
and conditions were that the lots as they would be partitioned were
in excess of the 8,000 square foot minimum required in this particular
zone and that the land was therefore too expensive to purchase by a
home builder and unsaleable, that there was in fact an easement
as shown for sewer to Holly Street on the property below belonging
to a Mr. Jarvis who also testified before the council. That the
majority of the council after the hearing feeling that the
granting of the application was necessary to the preservation and
enjoyment of substantial property rights of the petitioner, which
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is
Hoffarth
the land,
that the
fairly evident from the evidence and commented upon by Mr. Craig
that it was a hardship if the applicant could not use
that it had been up for sale for some three years and
denial of said application would be a deprivation of
substantial property rights of the owner since he could not sell it
or use it. The requirement that there be extraordinary circumstances
would be that each and every piece of property is used by an owner
to the best advantage to him, makes each individual piece of
property a special, exceptional and extraordinary use as to the
property owner and in this case the applicant, who frankly admitted
he had a sale conditioned upon the granting of said partition.
13 It is obvious from the exhibit that the granting of such an
14 application would not be outweighed by the adverse effects upon
15 the health and safety of the persons residing or working in the
neighborhood.
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There was a great deal of misinformation and I must submit
that this subjective in the petition circulated by Dr. Bornett that
this was contrary to law and that the partition did not meet the
laws in existence at the time of the petition. This is completely
contrary to the fact as to the zoning requirements, sub-division
requirements, the only condition being a rather arbitrary statement
that if the lots exceeds 150 feet in depth, it would have to be 100
feet wide, whereas, generally speaking, the general rule of
thumb is that the lot
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should be 2½ times the depth of the property, which
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this particular lot does meet.
There are two lots the council was told within a block of this
property which had the same type of variance allowed on the opposite
side of Terrace Street. There was much testimony concerning the
overloading of the roads and the fact that there was supposed to be
a street through the sub ject property, all of which was denied by
the city staff and which the applicant stated he had no knowledge of
any such extension of road but that he had been approached by
one of the objectors, Mr. Fader, when applicant first purchased
the property,to put an easement out to Terrace Street from said
property line of Mr. Fader to Terrace Street. Mr. Fader testifying
that the breaking up of these particular parcels of land would
overload the roads. However, if said property had a road through
it, it certainly would allow for a greater utilization of the
properties in the general area and would not therefore be materially
detrimental and add to tax revenues to the city.
In any event, since the council acted as a quasi judicial body,
had a public hearing, determined that the application should be
allowed to partition the land and having so voted, they apparently
then asked the applicant to file his findings of fact, which he is
doing by this document and which he feels personally, puts an undue
burden on the applicant since the so-called famous Fasano decision
states that since the council and planning commission acts as a
judicial body they have to file findings of fact. It would be
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rather incongruous if the applicant files a findings of fact and
then is forced to defend them in the event it is appealed to the
Circuit Court.
In any event it is my belief that the above findings substantially
cover what occurred at the public hearing on July 15, 1975 and that
the vote of 3 to 1 was to over-rule the planning commission and allow
the minor land partition.
10 I assume that there will be no further public hearing but it
11 is possible that there will be minor variations in the findings since
12 this is only one person's recollection as to what occurred. I have
13 listened to the tape of the hearing and have attempted to be
14 accurate in these findings and I thank the council for their
15 consideration. I assume that Dr. Law's vote was that he found
2 of the 3 criteria were met pursuant to the city attorney's
recommendation as the application of said ordinances, and the
other 3 council members found that the application met all three
qualifications.
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Findings of Fact
The council also found that the minor land partition meets
allowable variances in the zoning ordinances and also is not in
conflict with the comprehensive plan for the city of Ashland
since the question was asked by Mr. Gardiner of the city attorney
and he so stated that the use was not in conflict with the zoning
ordinances and comprehensive plan and complied fully with the recent
holding of the Supreme Court in the Baker case.
Respectfully submitted,
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