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HomeMy WebLinkAbout1994-018 Findings - JohnsonBEFORE THE ASHLAND CITY COUNCIL February 1, 1994 IN THE MA'I-FER OF PLANNING ACTION #93-128, ) AN APPEAL OF THE ISSUANCE OF A BUILDING ) PERMIT FOR THE CONSTRUCTION OF A SINGLE ) FAMILY RESIDENCE AT 635 THORTON WAY. ) APPEAL BASED ON SOLAR ACCESS ORDINANCE AND ) LOT WIDTH/DEPTH REQUIREMENTS. ) FINDINGS, CONCLUSIONS AND DECISION APPELLANT: MARALEE SULLIVAN APPLICANT: DON JOHNSON 1. RECITALS: 1.1. The applicant is requesting a building permit for the construction of a single family residence on Tax lot 1900 of 391E 05BD located at 635 Thorton Way. The property is located across the city limits line, with land inside the city limits under the jurisdiction of the City and land outside the city limits under the jurisdiction of Jackson County. The City portion is zoned R-l, Single Family Residential. The residence will be located on land within the City of Ashland. 1.2. The appellant is appealing the issuance of the building permit by the City of Ashland, claiming that the Planning Staff did not approve the permit under clear and objective standards, but rather used discretion, thereby making the decision a land use decision. The appellant further claims that the City erred in issuing the permit under the applicable standards and that the building permit should not be approved. 1.3. The Planning Commission, following proper public notice, held a public hearing on October 13, 1993, at which time testimony was received and exhibits were presented. The appellant appeared and participated in the hearing. The Planning Commission found that the Planning Staff did not make a land use decision in the approval of'the building permit, and that it was issued under clear and objective standards. The Planning Commission therefore denied the appeal. 1.4. The appellant appealed the decision of the Planning Commission to the City Council. The City Council, following proper public notice, held a public hearing on February 1, 1994 at which time testimony was received and exhibits were presented. 2. CRITERIA 2.1. The issuance of building permits is regulated by the Land Use Ordinance (Title 18 of the Ashland Municipal Code (AMC)) in chapter 18.112. Section 18.112.060 requires that no building permit may be issued by the building official unless the permit conforms to the Land Use Ordinance. See also section 15.04.090 which prohibits new PAGE 1-FINDINGS, CONCLUSION AND DECISION {p:planning~iohnson. Fin) construction until verification of the planning director that the construction complies with applicable planning and zoning regulations. 2.2. Single family dwellings are permitted in the R-l, Single Family Residential zone in section 18.20.020.A. 2.3. General regulations for the construction of a single family dwelling in the R- 1 zone are located in section 18.20.040 and consisting of a minimum lot areas and widths and depths; setback requirements and maximum building height and coverage. 2.4. The setback requirements of the general regulations require conformance with the Solar Access chapter, 18.70. 2.5. Any staff decision is subject to appeal under section 18.108.070.A.1 and is processed under section 18.108.070. "18.108.070 Appeals. A. Actions subject to appeal: 1. Staff decisi'ons and interpretations. The decision of the Planning Commission shall be the final decision of the City on appeals of Staff decisions and interpretations. B. Appeal Procedures: 1. Appeals of Staff decisions and interpretations shall be processed as Type II Planning Actions before the Planning Commission. The standard Appeal Fee shall be required as part of the application." 2.6. Appeals of Type II Planning Commission decisions are heard by the City Council pursuant to section 18.108.070.B.2: "Appeals of Type II Planning Commission decisions shall be heard and decided by the City Council, following the Type II procedure. The standard Appeal Fee shall be required as part of the application. 3. EXHIBITS. For the purposes of reference to these Findings, the attached index of exhibits, data, and testimony will be used. Staff Exhibits lettered with an "S" Proponent's Exhibits, lettered with a "P" Opponent's Exhibits, lettered with an "O" Hearing Minutes, Notices, Miscellaneous Exhibits lettered with an "M" All information presented to the City Council and included as exhibits are incorporated as part of this decision and made a part of the record for this action. PAGE 2-FINDINGS, CONCLUSION AND DECISION {p:planning~johnson. Fin) TESTIMONY, EVIDENCE, AND FINDINGS. 4. From the staff report and review of the record before the planning commission we find that the property which is the subject of this appeal is zoned R-l, Single Family Residential. The application for the building permit for the subject property is for a single family dwelling. The lot area for this property exceeds 7,500 square feet which is the minimum area for this property as it has been designated as R-1-7.5 (minimum lot size 7,500 square feet). 5. From the staff report we find that the lot in question was legally created by a minor land partition in September, 1975 approved by the City of Ashland as Planning Action MLP 251. We find that the lot consists of all that property encompassed by the lot lines irrespective of the city limits boundary which bisects the lot. Section 18.08.350 defines lot as a "unit of land created by a partition or a subdivision, or a unit or contiguous units of land under single ownership, which complies with all applicable laws at the time such lots were created." The fact that that the lot lies in both the city and county does not make it two lots. The city limits boundary is not a lot line and we specifically make such interpretation of the Land Use Ordinance. We find, and so interpret the ordinance, that the boundaries of the lot, whether in the city or county, are the lot lines used in all decisions associated with the issuance of a building permit. 6. The solar access requirements have been met. Staff determined and we so find: 6.1. That the slope of the property in a due north direction is 23.3% downhill. Northerly slopes are stated as negative figures, therefore it is -23.3%. The lot classification is determined, based upon a formula, tables, and the north-south lot dimension. Lot classification indicates the amount of shading allowed. Standard "A" allows for a 6'.high shadow to be cast at the north property line, while Standard "B" allows for a 16' high shadow. Standard "B" allows for a significantly higher structure. The lot classification is determined as indicated in section 18.70.020. 6.2. The north-south lot dimension (as defined in 18.70.020 E.) is the average distance in feet between the northern lot line to a line drawn east-west and intersecting the southernmost point of the lot. The northern lot line (as defined in 18.70.020 D.) is any lot line or lines less than 45 degrees southeast or southwest of a line drawn east- west and intersecting the northernmost point of the lot. In considering this parcel, that line is the line shown on the lot depicted below. Therefore, the north-south lot dimension is 411.30', or the distance between the defined northern lot line and the southernmost point of the lot. 6.3. Once the north-south dimension is determined, it is used with the slope to classify the parcel. Using Formula I in 18.70.030, the following calculation is made: 30' = 30' = 141.5 0.445 + (-.233) .212 PAGE 3-FINDINGS, CONCLUSION AND DECISION {p:planning~johnson. Fin) Under the ordinance, if the north-south lot dimension of the parcel is greater than 141.5', the parcel is classified as Standard "A", allowing for a 6' shadow at the northern property line. In this instance, 411.30' is clearly greater than 141.5', requiring Standard "A". The solar setback is calculated pursuant to section 18.70.040. Specifically, this section states the following: "A. Setback Standard A. This setback is designed to insure that shadows are no greater than six (6) feet at the north property line (emphasis added). Buildings on lots which are classified as Standard A, and zoned for residential uses, shall be set back from the northern lot line according to the following formula: SSB : H - 6' 0.445 + S Where: SSB = the minimum distance in feet that the tallest shadow producing point which creates the longest shadow onto the northerly property must be set back from the northern property line (emphas. is added). the height in feet of the highest shade producing point of the structure which casts the longest shadow beyond the northern property line. the slope of the lot, as defined in this Chapter. By this calculation, the structure must be located 61.4' back from the northern property line. We find that this distance is exceeded. We specifically find that the northern lot line, as defined in 18.70.020 D, is that lot line at the northernmost point of the lot or line BD depicted 15elow: PAGE 4-FINDINGS, CONCLUSION AND DECISION Ip:planning~iohnson.Fin) DIAGRAM "A" (depiction only, - not to scale) North · Jackson County City of Ashland ~ city limits B C D northern lot line t TUCKER STREET Sullivan Johnson property property A dwelling E F 411± feet site~ ~ ITHORTON WAY city limits We find that there is only one such northern lot line, and that the Staff used that line in the determination of the solar access calculations for the issuance of the building permit. 7. Opponents have raised several issues which will be addressed here. 7.1. Opponents argue that whether the portion of the lot in question that lies outside the city limits can be considered is a land use decision. We disagree. Citing ORS 197.015(10)(b)(B), opponents maintain that the permit was not approved "under clear and objective land use standards." As explained below, the standards used by staff left no room for discretion and they were clear and objective. Even if a land use decision was made, no error has been made in this case. Opponents have had two evidentiary hearings, one before the planning commission and one before this council, to argue their points and present their evidence. Thus the procedural protection afforded by statute and the Land Use Ordinance for land use decisions has been utilized. 7.2. The opponents maintain that the definition of "lot" in section 18.08.350(1) does not state that a unit of land, wherever it lies, is the "lot" that is defined in 18.08.350. They argue that since the ordinance in question is a City of Ashland ordinance, it is just as likely, if not more so, that the definition applies only to lots lying within the City. We disagree. The definition of lot in section 18.08.350 does not require the lot to be wholly within the city any more than it requires a lot to be .created only after it is annexed to the city. The application of this definition by staff was correct. To the extent that someone may read the definition differently, as opponents PAGE 5-FINDINGS, CONCLUSION AND DECISION (p:planning~johnson. Fin} have, we interpret the definition to include a lot lying wholly or partially within the city limits of Ashland. 7.3. The opponents maintain that the northern lot line as determined by staff was incorrect. They ask whether it is the northern lot line of property lying within the City or is it the northern lot line of the applicant's lot lying outside of the City? We find that staff made a correct determination. The line in question as we understand from the opponents is line BCD in diagram A. Opponents contend that line BC (the line outside the city limits) cannot be the northern lot line. We have previously determined that it was correct for the staff to include line BC as part of the northern lot line. Even if line BC is excluded, the northern lot line within the city, line CD, is still the northern lot line and the same calculations flow. 7.4. Opponents argue that the purpose and intent of the solar access chapter as recited in section 18.70.010 was ignored when staff decided to use the northern lot line falling in the county. It makes more sense, opponents would argue, to use line EF in the above diagram. Again, we find that staff made a correct determination. As explained above, it does not matter whether that part of the lot line in the county is used or just the northernmost line in the city. By any determination, using that part of the line within or without the city results in the same calculations. We interpret the ordinance to not allow any discretion in the determination of the the the northern lot line. Line EF or any other line than the one staff determined to be correct cannot be the northern lot line applying the clear and objective standards of the ordinance. Even if excluding that portion of the lot line outside the city resulted in a different calculation, the intent and purpose of the solar access chapter as expressed in section 18.70.010 does not amend the unambiguous provisions of that chapter. This section provides: "The purpose of the Solar Access Chapter is to provide protection of a reasonable amount of sunlight from shade from structures and vegetation whenever feasible to all parcels in the City to preserve the economic value of solar radiation falling on structures, investments in solar energy systems, and the options for future uses of solar energy." The calculation of solar setbacks in chapter 18.70 is subject to specific, clear, objective and unambiguous standards. The purpose sections of the various chapters of the Land Use Ordinance are not standards in and of themselves, rather they are guidelines to interpretation of the ordinance where the requirements of the ordinance are too general or unclear, subjective, ambiguous or vague. To the extent that it is not apparent that the purpose sections in the ordinance are guidelines only, we so make such interpretation of the ordinance. We find that the section followed by staff in determination of the northern lot line is not general, unclear, subjective, ambiguous or vague. If a reviewing body determines that such ambiguity or vagueness, etc. exists then we specifically interpret the solar access ordinance in the manner staff did. PAGE 6-FINDINGS, CONCLUSION AND DECISION Cp:.~...~.g~ioh.so..Fi.~ 7.5. Oppone. nts argue that staff disregarded the lot width and depth requirements of R-1 zone and that this lot does not comply with the minimum and maximums required in section 18.08.470. The argument is that if the front yard is located on Thorton Way, the back yard must be on the north side and the re'quired length has not been met. We find that staff correctly determined that the standards in this section have been met. Specifically we find that the side yards to be 11 feet and 130 feet and the rear yard to be 350.feet. We interpret requirements for yards in 18.20.040. D to be minimum requirements. The front yard is ten feet. We find that the front yard area has an average steepness exceeding 53% which exceeds one foot rise in two feet horizontal distance. In such case, the front yard may be reduced ten feet from the required 20 feet. See section 18.68.110.C. Opponents also argue that the lot depth exceeds the maximum 150' permitted in 18.20.040.C. We disagree that the maximum applies in this case. This section requires that all "lots shall have a minimum depth of eighty (80) feet, and a maximum depth of one hundred fifty (150) feet unless lot configuration prevents further development of the back of the lot. Maximum lot depth requirements shall not apply to lots created by a minor land partition. No lot shall have a width greater than its depth, and no lot shall exceed one hundred fifty (150) feet in width." (Emphasis added.) As noted in paragraph 5, the lot in question was created by a minor land partition. Even if this lot was not created from a minor land partition and the maximum depth is exceeded, we do not-interpret this section as prohibiting a single family residential dwelling on the property. Lot dimensions are necessary for the determination of compliance when new lots are created, to ensure minimum area and dimensions. We interpret the ordinance to allow development on existing lots if minimum setbacks can be met. Under opponent's argument, any non-conforming lot would be unbuildable, even if the proposed home complied with all setback requirements. We interpret the ordinance to mean that an owner does not have to further divide a lot to meet the maximum width or depth requirements of the general regulations in order to put an outr..ight permitted use on an existing lot. We also interpret section 18.20.040.C to mean that if tl~e maximum depth exceeds 150 feet because the lot depth.requirements no longer apply to lots created by a minor land partition, as in this case, the restriction on lot width no longer applies. In other words, a lot may exceed 150 feet in width if its depth may exceed 150 feet. 7.6. Opponents have also argued that if the city boundary is used as a lot line then setbacks are violated. As explained above, the city boundary is not a line recognized for purposes of setbacks. Further lot line is defined in the ordinance as "the property line bounding a lot." Section 18.08.410. The city boundary line is not a property line. If that is not evident from the ordinance then we so interpret the ordinance in that manner. 7.7. The opponents argue that the city cannot use its zoning regulations in the county. That the urban gro'wth boundary agreement with Jackson County specifically provides that the county land use regulations apply within the urban growth boundary. We agree. There is nothing in this decision that says otherwise. 8. DECISION. 8.1. All requirements have been met by the applicant for approval of the building permit. Staff correctly followed the procedure for determination of solar acces~ as outlined in Chapter 18.70 of the Land Use Ordinance which contains clear and objective standards. PAGE 7-FINDINGS, CONCLUSION AND DECISION (p:plannlng~johnson.l:inl 8.2. The approval of the permit did not involve making a land use decision as all criteria were clear and objective. Even if this is considered to be a land use decision, the opponents fully participated in two public land use hearings regarding the matter. If a land use decision, then we find that all criteria have been fulfilled for issuance of the permit. The appeal is denied and the approval of the permit is upheld. Approved and adopted by the city council on February 15, 1994. Mayor ' Attest-City Recorder PAGE 8-FINDINGS, CONCLUSION AND DECISION (p:planning~johnson. Fin)