HomeMy WebLinkAbout1991-006 Findings - Fred CoxBEFORE THE ASHLAND CITY COUNCIL
February 5, 1991
IN THE MATTER OF PLANNING ACTION #90-182, REQUEST FOR )
FINAL PLAN APPROVAL FOR A 17-LOT SUBDIVISION UNDER THE )
PERFORMANCE STANDARDS OPTION FOR THE PROPERTY LOCATED AT)
766 ROCA STREET. )
APPLICANT: FRED COX CONSTRUCTION )
)
FINDINGS,
CONCLUSIONS
AND ORDERS
RECITALS:
1) Tax lot 1200 of 391E15BC is located at 766 Roca Street and is zoned
R-i-10-P, single family residential.
2) The applicant is requesting approval of a 17 lot subdivision under
the Performance Standards Option. Outline and final plans are on file
at the Department of Community Development, City Hall, Ashland, OR.
3) The criteria for final plan approval are found in 18.88.030 B. and
are as follows:
Final Plan approval shall be granted upon finding of substantial conformance
with the outline plan. Nothing in this provision shall limit reduction in
the number of dwelling units or increased open space provided that, if this
is done for one phase, the number of dwelling units shall not be transferred
to another phase, nor the open space reduced below that permitted in the
outline plan. This substantial conformance provision is intended solely to
facilitate the minor modifications from one planning step to another.
Substantial conformance shall exist when comparison of the outline plan with
t~e final plan shows that:
a) The n~mber of 4welling units vary no more than 10% of those shown
on the approved outline plan, but in no case shall the n~,mber of units
exceed those permitted in the outline plan.
b) The yard depths and distances between main buildings vary no more
than 10% of those shown on the approved outline plan, but in no case
shall these distances be reduced below the minimum established within
this Title.
c) The open spaces vary no more than 10% of that provided on the
outline plan.
d) The building size does not exceed the building size shown on the
outline plan by more than 10%.
e) The building elevations and exterior material are in conformance
with the purpose and intent of this Title and the approved outline plan.
f) That the additional standards which resulted in the awarding of
bonus points in the outline plan approval have been included in the
final plan with substantial detail to ensure that the performance level
committed to in the outline plan will be achieved.
g) ~n¥ amendment to an approved flnal plan shall follow a Type I
procedure.
4) The Planning Commission, following proper public notice, held
Public Hearings on October 9 and November 14, 1990, at which time
testimony was received and exhibits were presented. The Planning
Commission approved the application subject to conditions pertaining to
the appropriate development of the site. The Planning Commission
findings and Planning Department Staff Report are adopted and
incorporated here.
5) This action is an appeal to the city Council from the decision of
the Planning Commission, dated December 11, 1990. The Appellants are
Dohrmann K. Pischel and Lois Pischel. The only issue raised on appeal
is the interpretation and application of ALUO 18.88.080 (B). Appellants
contend that that provision requires all lots developed in a P-overlay
zone to have the same minimum lot size as the parent zone, in this case
10,000 square feet. The City Council approved the application subject
to conditions pertaining to the appropriate development of the site.
6) Ashland Land Use Ordinance 18.88.080 (B) provides as follows:
Ail developments, other than partitionings, which involve the
division of land, or development of individual living units,
in the P-overlay areas, shall be processed under this Chapter
of the Land Use Ordinance. The minimum lot size for one unit
shall be the same as in the parent zone."
Ashland Land Use Ordinance 18.88.100 provides as follows:
"Applicability of Other Sections of the Land Use Development
Ordinance. Developments exercising the Performance Standards
option shall be required to meet all other applicable sections of
the Land Use Development Ordinance except for minimum lot size, lot
width, lot depth and setback requirements, and except as otherwise
provided in this Chapter. All public improvements and commonly
owned areas in a Performance Standards development shall follow the
same procedure as a subdivision for bonding. (Ord. 2356, 1985)."
7) The issue raised by Appellants was addressed by John Fregonese,
Ashland Planning Director, in a Memorandum dated October 22, 190, to the
city Attorney, Ronald L. Salter, and by a Memorandum, dated November 7,
1990, from Mr. Salter to Mr. Fregonese. Both Memoranda are a part of
the record in these proceedings.
Now, therefore, City Council of the city of Ashland
and recommends as follows:
finds, concludes
SECTION 1. 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
SECTION 2. CONCLUSORY FINDINGS
2.1 The city Council finds that it has received all
information necessary to make a decision based on the Staff
Report, public hearing testimony and the exhibits received.
2.2 The City Council finds that the proposal for Final Plan
approval for a 17-lot subdivision under the Performance Standards
Option meets all criteria outlined in 18.88.030 B.
2.3 The City Council adopts by reference the findings submitted
by the applicant, and makes the following additional findings
addressing the criteria for Final Plan approval:
The Council finds that the application conforms with the
applicable criteria of 18.88.030 B. 5. a)-g) in the following
way:
a) no change in the number of units,
b) these' have remained consistent except for the
modifications of yards as per the conditions of approval of
the Outline Plan.
c) the open space has remained essentially the same, except
for the modification required as part of the conditions of
approval of the Outline Plan.
d) building and envelope sizes have remained consistent,
except for modifications required as part of the conditions
of approval of the Outline Plan.
e) the materials submitted during outlined plan have
remained the same for final plan.
f) the applicant has indicated that all homes will be built
to meet the city's energy efficiency standards. Also, the
open space has been indicated on the Final Plan maps in
sufficient detail to ensure the adequate development of this
area.
g) amendments to the approved final plan will be processed
as a separate planning action.
2.4 The Council finds that the Conditions of Approval attached
during Outline Plan approval are met or addressed by this
application as follows:
1) That all disputes concerning the lot boundaries be
settled prior to application for Final Plan approval. Proof
of clear title for the parcel shall be required at the time
of application.
The applicant has presented information in the form of a clear
title to the property to the City as part of their application
materials conforming with this condition.
2) That a sidewalk be located on the eastern side of the new
street, from Roca Street around the end of the cul-de-sac to
the proposed open space path, and that it be constructed to
a 4' width.
The applicant's site plan indicates this sidewalk.
3) That street trees, I per 30' of frontage, be provided
along both sides of the new street, and along the Roca Street
frontage. Trees to be installed prior to the issuance of a
Certificate of occupancy for any new structure. Street trees
located in the open space shall be installed prior to
acceptance of the subdivision by the city of Ashland.
This requirement is tied to Certificate of Occupancy
requirements for individual residences, or to final approval
and acceptance of the subdivision. The open space trees,
along with the open space landscaping requirements, may be
fully bonded prior to installation, allowing acceptance of the
subdivision by the City.
4) That a half-street improvement be done on Roca Street,
including curb, gutter, and sidewalk.
The applicant's plans indicate the Roca Street improvements,
and must be installed prior to acceptance of the subdivision
by the City of Ashland and the issuance of building permits.
5) That the building envelopes be modified such that no
envelopes contain sloping areas in excess of 40%. Also, all
lots shall contain at least one 20' private yard, either at
the rear or side of the property and indicated on the final
plan.
The applicant has provided a map indicating that all building
envelopes are located on lands less than 40% slope.
6) That a hydrologic study be performed including
engineering information concerning adequacy of water and flood
impact regarding the ponds and waterfalls proposed for the
open space area at the time of Final Plan. The study should
also address the issue of removal of the culvert along Roca
Drainage. The Planning Commission reserves the right to
remove the culvert at the time of Final Plan.
The applicant's engineer has presented a study indicating that
the proposed channel design for the open space area will be
capable of handling a 100-year storm. Also, the culvert for
the new street is also designed to handle a 100-year storm.
Ponds and spillways have also been designed to meet this
standard. The report has been completed and stamped by
Registered Professional Engineer John Hardey.
Regarding the existing culvert, the plans are designed such
that the culvert is not used for flood control. The water is
all routed on the surface. The grading and erosion control
plan indicates that the existing 18" culvert will be
abandoned. Previous discussions with the engineer has
indicated that the culvert will remain where possible, but
that the construction of the channel for the surface flow may
require the removal of some sections of the culvert.
The opponents have presented information submitted by
Professional Engineer Robert S. Blanton, rebutting the
information presented by Engineer Hardy, and providing
alternate calculations, in a letter dated Oct. 1, 1990, and
further rebutted in a "memorandum of opposition" presented by
Karen Allen, Attorney for the opponents.
The calculations were reviewed by Public Works Director Steven
Hall, Professional Engineer. Hall also performed independent
calculations as reported in his memo dated November 5, 1990.
Hall found that the calculations presented by Hardy were
accurate and that the culvert as designed was appropriate for
this location.
Engineer Hardy also submitted a response to Engineer Blanton's
letter, supporting the calculations presented originally.
Engineer Blanton provided further rebuttal to the letters
submitted by Hall and Hardy in a letter dated November 14,
1990.
The Council finds that engineering information submitted in
support of the condition by Engineer Hardy meets the
requirements of the condition, and that the evidence submitted
in support of the calculations by Public Works Director Hall
provides a factual basis for support of the information. The
Council finds that the requirements for this condition have
been met by the applicant and is supported by facts within the
record.
7) That solar envelopes be provided for all lots and
indicated on the final plan and final survey plat.
A plan indicating these envelopes has been provided by the
applicant.
8) That building envelopes be provided for all lots and
indicated on the final plan and final survey plat.
A plan indicating these envelopes has been provided by the
applicant.
9) That the rear yard setbacks for the parcels abutting the
eastern property line be a minimum of 20'.
Ail lots abutting the eastern line have a minimum 20' setback
indicated.
10) That detailed information concerning street design,
relating to cuts and fills and street grade, be present at the
time of Final Plan. Plans to be site specific and not
"typical." No street grades shall exceed 15%. Also,
information on culvert sizing, as per the Physical and
Environmental Constraints ordinance, shall be required as part
of the street design.
Plans of the street grades and profiles, indicating the
required information, has been submitted by the applicant.
Calculations on culvert sizing for the street crossing have
also been submitted as part of the hydrologic study. No
street grades, or private drive grades, exceed 15%.
11) That the open space on the eastern side of the new street
be deleted and that this area become part of the lots on this
side.
The submitted plans indicate this change.
12) That a development/landscaping plan be presented for the
open space, including the cul-de-sac island.
The applicant has submitted the requested landscaping plans,
and they have been reviewed by the Tree Commission.
13) That draft CC&R's be presented at Final Plan approval,
indicating maintenance of common open space and common drives
and that the CC&R's be reviewed by the City Attorney.
The applicant submitted a draft copy of the CC&R's with review
by the City Attorney. With the conditions established by the
Planning Commission at their public hearing, the Council finds
that the CC&R's are adequate and comply with the requirements
established by this condition.
14) That all easements for sewer, water, electrlc, and
streets be provided as required by the city of Ashland.
An initial plat of the subdivision has been submitted
indicating public utility easements, complying with the
condition.
15) That a drainageway easement be provided for Roca
Drainage.
This has been indicated on the preliminary subdivision plat.
16) That the Planning Commission reserve the right to remove
the culvert along Roca drainage and can do so at the time of
Final Plan.
Given the information submitted by the applicant's engineer,
The Council finds that the culvert should not be removed from
the channel, but rather allow the applicant to construct the
drainage channel in the Open Space as submitted, with the
removal of any culvert as necessary.
17) That a public pedestrian access easement be granted to
the City of Ashland for the pathways through the open space.
This easement has been indicated on the
subdivision plat.
preliminary
18) That an interim construction erosion control plan, and
permanent erosion control plan be submitted a part of Final
Plan. Such plans to address the street cuts and fills, and
possible erosion cont~ol measures to be taken during residence
construction. Street cuts in excess of 1' in height should
be made near vertical and be surfaced with a dry masonry rock
face or the functional equivalent. Fill slopes should be
maintained with an erosion control netting and seeded with an
erosion control vegetation. Irrigation should be provided to
ensure vegetation growth. Erosion control plans to include
detail of all such measures.
An erosion control plan has been submitted by the applicant's
engineer. The plan indicates the required rock walls for cut
slopes, and letter from the engineer states that "fill slopes
shall be maintained with an erosion control netting similar
to Curlex Blankets as manufactured by the American Excelsior
Company. The Master Landscape plan also indicated that an
automatic sprinkler system will be installed to ensure
vegetation growth." Interim erosion control is addressed
through the use of hay bales.
19) That soils testing of the site be done to determine the
quality and stability of the soils, with the intent of
discovering what the soil is comprised of and the potential
for any future problems.
A detailed soils analysis was performed in April,1990 by
Certified Engineering Geologist Tom Ferrero. The report
indicates that there is a "relatively insignificant" amount
of toxics in the soil, with no apparent health hazards. The
report also addresses the specific needs for foundations and
cuts.
20) That the slopes on driveways be limited to 15% or less,
which parallels the present street standards.
The plans indicate that the private drives are all 15% or
less, and the remainder of the driveways will be approved for
compliance with this standard at the time of building permit
issuance. The Council finds that the approval of the driveway
grades at the time of building permits provides compliance
with this criteria. Further, they find that the information
presented by Richard Stevens, regarding driveway grades in a
letter dated October 9, 1990, does not accurate{y represent
the grades of the driveways as they will be constructed, but
represents the topography as it presently exists. The Council
finds that excavation or filling or bridging as necessary for
construction will assure compliance with this condition at the
time of residence construction.
21) That Phase I include the development of the open
space/common areas and improvements on Roca Street.
The final plan approval is for the entire subdivision, but the
applicant is aware of this requirement and has proposed to
complete improvements to both the open space area and Roca
Street.
22) That for lots were the building envelopes include slopes
between 30-40%, that the lot coverage be reduced by 10
percent, making it 36 percent lot coverage.
The applicant has provided a table indicating lot coverages
for all lots, with all lots being in accord with the above
condition.
23) That specific plans relating to the recommendations of
the geologic report concerning foundations, retaining walls,
streets and other faoillties be presented at the time of Final
Plan.
The geologic report of April, 1990 includes specific
information regarding cut and fills for the construction
within the subdivision, similarly, the street construction
and erosion control plans further address this information.
Specific engineering requirements, in accord with the geologic
report, will be enforced as part of the building permit
process for individual residences.
2.5 The Council finds that the only issue raised by Appellants on
appeal is the interpretation and application of ALUO 18.88.080 (B)
to the Roca Canyon Homes Planned Development at Final Plan
Approval. Appellants have raised what has been termed a "density"
issue. In fact, the issue raised by Appellants relates to minimum
lot size. Appellants contend that 18.88.080(B) is ambiguous and
requires that every lot in the development must have the same
minimum size as required by the parent zone, or 10,000 square feet.
The Memoranda of Mr. Fregonese and Mr. Salter discuss the
legislative history and the historical application of the subject
ordinance provision and suggest that the strict interpretation
urged by Appellants has never been followed by the City and would
be unwarranted in this case.
Applicants' attorney, John R. Hassen, has made the following
points:
A. If the ordinance provision was meant to be applied as
urged by Appellants, it should specify that "each" unit shall have
the same minimum lot size as the parent zone, not just "one" unit.
B. If a strict interpretation of the ordinance provision is
to be followed, Roca Canyon Homes qualifies because two units in
the development exceed 10,000 square feet in size.
C. Applicants have argued for strict application of the
ordinance provision, but they want to change the word "one" to
"each".
D. The general structure of Chapter 18.88 is to allow
flexibility. ALUO 18.88.100 provides that developments subject to
the Performance Standards Option must meet all other requirements
of the Land Use Development Ordinance, except for minimum lot size.
The Council finds that the legislative history and arguments of Mr.
Hassen show that the provision of ALUO 18.88.080(B) are ambiguous
as written. The arguments of Applicant are more reasonable as to
the interpretation and application of the ordinance. Planned
developments have historically been, and are generally, approved
with lot sizes smaller than the minimum lot size required in the
parent zone as an incentive to the developer to provide open space
and other amenities that might otherwise be left out of the
project. Therefore, ALUO 18.88.080(B) does not require all lots
in the Roca Canyon Homes Planned Development to have a minimum lot
size of 10,000 square feet.
SECTION 3. DECISION
3.1 Based on the record of the Public Hearing on this matter, the City
Council concludes that the request for Final Plan approval of a 17-lot
subdivision under the Performance Standards Option is supported by the
evidence contained in the whole record.
Therefore, based on our overall conclusions, and upon the proposal being
subject to each of the following conditions, we approve Planning Action
~90-182. Further, if any one or more of the conditions below are found
to be invalid, for any reason whatsoever, then Planning Action ~90-182
is denied. The following are the conditions and they are attached to the
approval:
1) That all proposals of the applicant be conditions of approval
unless otherwise modified here.
2) That a final copy of the CC&R's be presented for review and
approval by the City Attorney and Staff Advisor prior to the signature
of the final survey plat by the city of Ashland, and include the
following modifications:
a) That section 7.3 regarding the association's right to sell or
encumber the open space be deleted.
b) That the following disclaimer be attached to the CC&R's as
number 16:
"16. DISCLAIMER STATEMENT
These covenants constitute a private agreement among the
owners of lots within Roca Canyon Homes, A Planned Community,
and will not be enforced by the City of Ashland except as
allowed in 13.9. These covenants have not been approved or
disapproved by the City and do not restrict the City's
authority to adopt or amend its development regulations.
There may be conflicting requirements between these covenants
and the city's regulations. The city will limit its review
of a development application and the issuance of permits to
the requirements of its regulations and any conditions of
approval. It is the duty of every person engaged in
development within Roca Canyon Homes to know the requirements
of these covenants. In the event there is a conflict between
a City regulation and these covenants, any question regarding
these deed restrictions shall be directed to the Board of
Directors of the Roca Canyon Homes Homeowner's Association.
The City will not be liable for any approvals or permits which
are granted in compliance with City regulatlons, but which ar
not in compliance with these covenants.
c) That a provision be added to the CC&R's to include that the
initial fee to the Homeowner's Association be paid at time of
escrow in the amount of $250 per lot and a month subscription
amount of $25 be required to cover open space maintenance based
upon a budget submitted by the applicant. This amount could be
modified in April of 1992.
d) That the words "and thereafter" be deleted from Section 11.2
Paragraph 3 of the CC&R's.
3) That all relevant conditions of Outline Plan approval (PA89-168)
shall remain valid.
4)
That the culvert size under the new proposed street be increased
to 48" as stipulated and agreed upon by the applicant.
5) That the street name not include the word "oak" and that the name
be distinguishable from other street names within the City, with the
final approval for the street name to be granted by the Public Works
Department as part of Final Plat approval.
Mayor
Date
~ty Re~ord~r