HomeMy WebLinkAboutPA 2004-002 Attachments
CITl" OF
ASHL,AND
Council Communication
Title:
Dept:
Date:
Submitted By:
Approved By:
Continued Hearing on the Appeal of Planning Action 2004-002, a request for Site
Review and Tree Removal Permit to construct a multi-floor, 8,325 sq. ft. mixed
use building at 88 North Main Street. A Physical and Environmental Constraints
Review Permit is requested to permit "development" within the Ashland
Floodplain Corridor.
Applicant: Lloyd Haines
Planning Department
June 1, 2004 IA\\
John McLaughlin, Director of Community Development ~
Gino Grimaldi, City Administrator
Synopsis:
On May 18, 2004, the City Council opened the public hearing on this planning action, and heard from
the Staff, applicant and applicant's representatives, members of the public in favor of the: application,
and the appellant. The hearing is still open to allow testimony from members of the public in opposition
to the application, additional comments from Staff, and applicant rebuttal.
Since the end of the previous meeting, the appellant, Randall A. Hopkins, has submitted a 21-page
supplemental brief to support his appeal of the action.
The applicant's representatives have submitted eight pages of information to support their oral rebuttal
which will be delivered at the end of the public testimony portion of the hearing.
Staff has presented a three-page memo with three pages of maps to clarify floodplain cOlridor issues,
and to respond to other issues raised during the previous public testimony.
Recommendation:
After review of the newly submitted information, and review of the testimony and exhibits presented at
the previous hearing, Staff still supports the decision of the Planning Commission and recommends the
Council approve the request with the attached conditions as stated in the findings on pages 71-78 of the
record. The Council may wish to attach other conditions that they deem relevant to the criteria for
approval.
Attachments:
The supplemental packet information is attached.
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RANDALL A. HOPKINS
735 S. Mountain Ave
Ashland, OR 97520
541-488-0265
521-488-2823 (fax)
5 25 2004
TO THE MAY()R AND CITY COUNCIL OF ASHLAND:
Please accept this Supplemental Brief in support of my appeal of Planning Action
2004-002, the Shasta Building Project.
Thanks,
1. IT'S NOT JUST A SIGNATURE.
Under Sec. 18.108.017A, a 'complete and signed
application form' is required to initiate a planning
action, which 'must' be signed by one or more propert.y
owners or their authorized agents. The Application 'shall'
also include' [a]ll the required information for the
specific action requested.' Exhibit 40.
This involves more than simply signing a meaningless
line. Under Ashland's planning form, the Applicant or
Property Owner must sign twice. The first signature
certifies the truth and correctness 'in all respects" of
the application's information, including drawings and
required findings of facts. This section also alerts the
Applicant to his burdens in the event,of a contest. It
warns that failures regarding the certification and
burdens will 'result most likely' in the request being set
aside. The second signature line confirms that the'
Property Owner has read and understood the complete
application and its consequences.
As noted at the hearing, neither Applicant nor bis
Urban Planner, who holds a power of attorney, signed
either the certification of truth or the acknowledgment of
consequences. The Urban Planner was aware of the second
page of the Application, having used a power of attorney
to sign other planning applications. Compare Exhibits 41
and 42. Yet, as of today, neither have been signed.
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The Application should be denied on the basis of a
failure to properly sign and certify the Application,
either by t.he filing date (December 12,2003) or as of the
'deemed co~nplete' date (February 18, 2004). Such a
construction of Sec. 18.108.017 and the Application form
is consistE~nt with the express language of the rules and
is clearly consistent with the purpose and underlying
policy of proper planning. The Applicant already benefits
from Planning Dept. counseling in a pre-application
conference and, if the deemed complete date is chosen,
further staff assistance during the period leading up to
'deemed' completion and triggering of the 120 day rule.
Even after that point, the Applicant is protected from
overzealousness application of the 'truth' requirement by
the 'materiality' standard described by City Counsel at
the May 18t:h hearing. But just as planning applicants need
protection" so to does the City and public under a fair
and balancE~d process.
Once an action begins to flow l1ke a flood through
planning process and the Applicant gains advantage of the
120 day rule, it is vital that true and correct
information be provided to everybody that deals with these
matters. This, in turn, allows issues to be identified and
resolved during the process, so that only fully
articulated 'and critical matters arrive at the Council.
A construction that treats the certification of truth
as meaningless (or as something to be pinned on the
document as it heads out the door to LUBA) only invi,tes
the kind of chaos seen and suffered in this PA. It
substitutes a clear and objective standard, for a
subjective approach that will likely hinqe on the id1entity
of the particular applicant. Planning applicants in
general will know that requirements imposed by Planning
Staff during pre-app conferences, like identification of
floodplains as part of the application in this case, have
no teeth behind them. Citizen connnissions, with limited
time and energy available to them, will make
recommendations on the basis of conflicting, erroneous
information. Here, not one, but two Tree Connnission
meetings proceeded on the basis of materially incorrect
tree plans (and the second hearing wasn't even noticed to
the public). Just like here, critical issues will not be
identified for the Planning Commission, the body best
suited to winnow out the extraneous from the impOrtant.
Citizens like this Opponent who dredge out the facts will
find portions of the planning process denied to thenll,
being swept'along by the force of the 120 day rule.
Finally, just like here, appeals will arrive at the
Council with an every growing mass of documents that~ raise
more issues than they resolve. Inefficiency and confusion
will be the order of the day, all to the prejudice c.f the
rights not only of this Opponent, but of everyone.
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without a certification of truth and the incentive for
compliance that the application form provides, how can the
City safely and reasonably determine compliance with any
applicable approval standards? Truth and correctness is
not just procedural. In determining compliance with
planning criterion, truth and correctness are the most
substantive requirements of all.
LUBA 9rants substantial deference to a City's
construction of its own statutes and will set it aside
only if 'clearly wrong.' Surely, enforcing the important
laws as written will find safe harbor under this standard.
It will not even be invoking new planning criteria or
standards, since the Application form itself warns that
consequences of failures to carry out its burdens will
'result most likely' in planning requests being set aside.
If thE~ City enforces that warning in this case, it
will serve as a powerful incentive for all future
applicants to get things right. Every planning action,
including the buildings that result from these actions,
will be the better for it. After all, we're going to have
to live with these buildings for a long time.
2. APPLICANT HAS FAILED TO FULFILL HIS BURDEN OF
PROOF/PERSUASION.
In re"riewing a substantial evidence challenge, the
LUBA standard of review is whether the evidence the City
relied on is the kind of evidence that a reasonable person
would rely on.
In this case, the Applicant not only failed to certify
his application and its truth and correctness, but had
filed on his behalf at least 3 or 4 tree plans with
materially incorrect information and 13 different m~~s
which create the misleading appearance that the striking
lines marked on the drawings as FEMA 100 year flood plain
and Ashland Floodplain were at 1872' and 1875.5'
respectively, when in fact they were drawn in at about
1863. Exhibit 43. While the staff provided its own drawing
of the 100 year floodplain (Exh. 44), to date, neith'er the
applicant nor staff has provided a map showing the
accurate Ashland Floodplain Corridor (a limit based on
actual events, rather than an hydraulic study), as
required as part of the original application by the
Staff's Pre-Application conference report. Exh 45.
And there is more! One major change in the projE~ct
announced by Applicant at the Council's first' -hearing was
the alleged reduction in the amount of excavation around
the Triple Maple. There was only one document showing a
revised excavation scheme in the materials included in the
Council packet. And that drawing (A-29) showed that not
only was the amount of excavation around the tree NC~
being reduced, it was being increased! Compare Exhibits 46
and 47. Indeed, the area of reduced excavation only begins
about where the Maple's dripline ends, meaning that the
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only appar1ent effect of reduced excavation will be to (a)
reduce the cost of excavation to Applicant and (b) reduce
the floodwater storage capacity, a capacity that was made
the basis of OTAK's flood studies submitted as part of
this application. At best, this is yet another instance
(like that of the Protuberance), where the Applicant and
his experts are unaware of what their own plans provide.
At SODle point, a reasonable person is entitled to say
enough is ,enough. The untrue, incorrect and misleading
documents, combined with Applicant's apparent confusion
over his own project, more than justifies the
reasonableness of a finding that, in this application, the
Applicant and his experts have failed to be persuasive.
And that is their burden under the rules.
At LUI~A, Applicant's burden to overturn a denial would
not be satisfied by a showing that reasonable people would
reach different conclusions. He would have to show that no
reasonable "person could rely on the evidence the City
relied on. Given all the problems with his own
information, how could anyone conclude the Council was
being unreasonable is denying the application, especially
since the incorrect information now extends into a major
public safety issue like flooding? Exhibits 48-49.
3. A DE NOVO EVIDENTIARY HEARING CANNOT SAVE THE
APPLICANT.
Sec. 18.108.110 provides that appeal to this Council
shall be a'de novo evidentiary hearing.' But
'evidentiary' of what? with respect to the non-certijEied
application, the de novo evidence should relate to the
issue of whether the Applicant fulfilled his burden ito
sign and certify the Application, either in December or by
the February 18th deemed complete date. To treat a d43 novo
evidentiary hearing as allowing a signature to wander in
now, would be to create a conflict between regulations
where one need not exist, then construe them in such a way
that the requirement of truth certification is all but
written out of the rules. It is fundamental that when
different rules can be read in a matter that gives them
both meaning, that is preferred. Allowing the existence of
an evidentiary proceeding to ~rump a previously expired
legal deadline would effectively strike the important
legal deadline from the rules, thereby deleting the ,clear
and objective standard. But treating the evidentiary
hearing as an opportunity to determine if the deadline was
met will mean that both the legal deadline and de nOlvo
evidentiary rules would have meaning. The planning process
would be advanced, not rendered ludicrous and chaoti.c.
Nor does the opportunity to provide more information
allow Applicant to fulfill his proof burden. What tSlrs the
persuasiveness of this application is all the untrut~hs,
inaccuracies and uncertainties that went before it, even
infecting new materials submitted in the Council's
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original (and hefty) packet. The likelihood that any new
information will be submitted AFTER Opponent has completed
his preseni~ation, only helps render that information safer
from analysis, but it doesn't make it persuasive.
4. OBJECTIC)NS TO I ADDED EVIDENCE"
Opponent obviously does not know what added
information will be submitted by Applicant. But given the
fact that E~rroneous or misleading information implicates
several ne~' documents included by Applicant in the
Council's S-18 packet (documents A-25 and A-27 with
confusing j:loodplain designations, and A-29 which
conflicts ~,ith claims about a revised excavation plan),
such added information should at least be viewed with a
healthy de9ree of suspicion.
, The fact that Opponent's presentation time has now
expired, however, restricts Opponent's ability to respond
to any latE:! appearing material. Opponent therefore objects
-to further evidence as denying the ability to respond. For
similar reasons, Opponent objects to any further Staff
Report not filed at least 7 ~ays before the hearing on 6-1
and invokes his rights under Urquhart v. Lane Council of
Government~~, 14 Or LUBA 335, 339 (1986), rev'd. on other
grounds, 80 Or App 176 (1986) (petitioner may be
prejudiced by last minute staff comments presented after
the close of public testimony that are both evidentiary
and prejudicial).
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18.108.017 Applications
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A. In order to Initiate a planning action, three copies of a complete application shall be
submitted to the Planning Department.
1. Complete applications shall include:
a. All of the required Information for the specific action requested,
b. Written find Ings of fact,
c. Complete and signed application form. The application must be signed by one or
more property owners of the property for which the planning action is requested, or
their authorized agents. The application shall not be considered complete unless it is
accompanied by the appropriate application fee.
2. Incomplete ;applications are subject to delay in accordance with ORS 227.178. The
City will inforrn the applicant of deficiencies within 30 days of application. The
applicant then has 31 days In which to provide a complete application. When the
, application is dleemed complete, or at the end of the 31 day period, the City will begin
the appropriatE~ application procedure.
B. All applicants for Types I, II and III planning actions shall have completed a
pre-application conference for the project within a 6-month time period preced ing the
filing of the application. This requirement may be waived by the Staff Advisor if in the
Staff Advisor's opinion the information to be gathered in a pre-application conference
already exists in the final application.
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5/18/04 1:53 PM
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hereby certify that the statements _ j information contained in this apl- Jtion, including the enclosed
1rawings and the require!d findings ot fact, are in all respects true and correct. I understand that all
Jroperty pins must be shown on the drawings and visible upon site inspection. In the event the pins are
lot shown or their location found to be incorrect, the owner assumes full responsibility.
I further understand that if this request is subsequently contested, thf1 burden will be on me to establish:
1) that I produced sufficient factual evidence at the hearing to support this request;
2) that the findings of fact furnished justifies the granting of the request;
3) that the findings of fact furnished by me are adequate; and further
4) that all structures or improvements are properly located on the ground.
Failure in this regard will result most likely in not only the request being set aside, but also possibly in any
structures being built in reliance thereon being required to be removed at:-my expense. If I have any
doubts, I am advised to seek competent professional advice and assistance~
Applicants's Signature
Date
As owner of the property involved in this request, I have read and understood the complete application and
ns consequences to me as a property owner.
Property Owner's Signaturc~
Date
NOTICE: Section 15.04.240 of the Ashland Municipal Code prohibits the occupancy of a building or:a release of
utilities prior to the issuance of a Certificate of Occupancy by the Building Division -AND the completion of all zoning
requirements and conditions imposed by the Planning Commission UNLESS a satisfactory performance bond has
been posted to ensure completion. VIOLATIONS may result in prosecution and/or disconnection of utilities.
Dave Richardson 1105 Siskiyou Blvd. Ashland OR 97520
Architect
John Galbraith 145 S. Holly Street, Suite A Medford OR 97501 Landscape Architect
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1ereby certify that the statement~ ....'ld infonnation contained in this sr" fir:atlon, including the enclosed
"Swings and the requlredfindinr, . fact, are In a//18spec:ts true and \,. ~ct I understand .that all
TJperty pins must be shown on the drawings and visible upon site Inspection. In the event the pins ara
X- shown or thelrlocatJon found to be Incorrect, the owner 8SsUmes full responsibility.
vrther.understand that If this request Is 8ubsequent/ycontested, the burden wRl be on me to estabRsh:
1) that I produced sufficient factual eVIdence at the hearing to 8upporl this request;
2) that the findings of fact fumlshed justifies f!Je granting of the request;
3) that the findings of fact furnished by me are adequate; and further
4) that all sf1Uctures or Improvements a19 properly located on the ground.
JIIure iii this regard wiD result most nkely In not only the request being set aside, but also possibly In any
ructures belngbulJt in reliance thereon I:!elng required to beremovedet-"my expense. If l have any
>ubts, lam advised to seek ~petent professional advice' and assistance;
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: OW!J9( of the propertY Involved In this ~quest, J have read and understood the COmpletl9 application and
consequences to '1TJ!3 8S a property owner.
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YJ1CB: Sectkm 15.tU.240 ofthebh1atulMunicipal Code proldblts the occupancy of abuilding lor'a ;.eleo$eof~
1tie.J prlorto the Issuance of a Certlftcate of Occupancy by the BUilding Divlsion..AND the compl.etiDnofallMiUng
1dre1ne1d8andconditions imposed by the Planning Qnnmission..rJNliE$S.Jl satisfacllJTY perfOTlllAmceb0n4&u. ..
"posted to ensure completion. YIOLA.TIONS may, result inprosecutitm mulIor disconnection 0/' utilities-.
This Planning Application Form from PA 2004-015
shows that current Applicant's Urban Ph:lnner
has signed certifications in other actions using
his power of attorney. Why'not here? ' 42,
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STORM WATER DIWNAGE: Provide drainage plan for all paved areas at time of building permits.
ELECTRIC SERVICE: See attached comments. Contact Scott Johnson of the Bectric Department for
further information -.
PLANNING STAFF COMMENTS: Given the limited discussion of the proposal in the pre-application
submittal materials, Staff has the identified the following primary issues surrounding the proposal:
1.
DeveloplrIlent within Floodplain Corridor or Flood prone areas.
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The applilcation needs to identify the Ashland Floodplain Corridor, as well as to
elevation of a 100-year flood event (Le. 3100 cfs) based upon the OTAK 1998
study (se:e Engineering Division comments ). The flood event should consider the
removall:>f in-stream obstructions.
Staff would recommend that no development be proposed within the 100-year
flood area. In addition, Staff would recommend the establishment of creek side
vegetation in a 10-15 foot wide area between the active stream channel and any
proposed buildings or structures. The, establishment of vegetation and trees may
incorporate flood control structures as recently completed along the Calle
Guanaquato area.
The current proposal appears to place the proposed improvements too close to
the streslm channel, potentially restricting the conveyance of flood waters and
prohibiting the establishment of ,natural streamside vegetation.
2. Tree Removal.
The' proposal appears to propose the removal of NJo, large existing trees. The
burden is upon the applicant ,to demonstrate that the removal of the trees is
appropriated based upon the approval criteria ,established under the Tree ,_
Removall Ordinance (Chapter 16~61) The establishment of a,natural bank (1Q-15
feet in vvidth) along with creek side vegetation may be ,seen' as a form of
mitigatic.n.
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3. Site Re~iiew.
The proposed building is subject to compliance with City Site Design and Use
Standards, specifically those that apply to new, downtown buildings. The
preliminary building design appears consistent with these standards. The :"'
Historic Commission's initial comments appear favorable. Staff recommends that
the appllicant meet with the full Historic Commission to discuss the design prior
to filing the land use application.
f~oM y~r-A'PP COMUf,JJI S~ 7-/t-03
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APAUMENTI- THIRD LEVEL
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1900.60
lHlRO LEVI
RAMP · SECOND LEVEL
OFFICE · SECOND LEVEL
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-----------~ ~NEW~
(~el(Cl.Jtr~ =i;e-:- ~I !
rhis crosssection (enlarged from page 119 of the
:ity Council packet) shows the original e:x:cava-
tion plan running from the base of the Triple
Maple almost to the Street. This area is circled'~-~
for clarity. It appears that under this plan almost
111 below building grade would be at FEMA 1 00
fear Floodplain of 1872.
rhis drawing is now obsolete.
1888.60
SEcOND U
1077.00
FIRST LEVI
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The New Exc:avation Plan, as included at A-29 of the City
Council Pac~~et. Applicant claims the new plan reduces ex-
cavation in tile critical root zone of the Triple Maple. But this
drawing, the only one to show the actual plan, shows that
excavation f,'om the base of the tree thru its dripline (marked
as area A) is the same. And a new 10' excavation falling at
the northeast corner of the building and within the dripline
has been adcjed (marked as area B). So excavation around
the Maple is INCREASED.
The reduction of excavation begins about where the dripline
ends and extends toward the street (marked as C). Compare
this to the or'iginal excavation plan. This will not do the Maple
much good. In fact, instead of having all below building
grade at or below the FEMA 100 year floodplain, the front
half of the bllilding (toward the street) will be much
higher. Yet, the fuller excavation was used in the OTAK
studies of th'e flood impact of this building.
Thus, the ne'w plan not only fails to save the Maple, but
undermines the validity of OTAK work. Are Applicant and his
exoerts awal'e of what their own drawinas orovide? 4 7
SECTION A
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This is page A-27, submitted by Applicant in the pac:ket for
the 5-28-04 hearing. The document erroneously des.:ribes
the FEMA 100 yr floodplain as 1870, whereas it is 18'72. See
circled A.
Both the topo lines for 1872 and 1870 (the maximuml allow-
able encroachment areas for the 100 year floodplain) extend
further into the building than shown on other docuRlents,
or even the small little triangle that is labeled as 'grclde area
of building encroachment into floodplain' identified on this
document.
Even at this late date, Applicant's drawings remain <<it least
ambiguous regarding the floodplain locations, even though
the Staff's pre-application conference report requirE~d them
to identify the floodplains as part of the Application" 48
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15.10.030 Findings of Fact
A. The flood hazard areas of Ashland are subject to periodic inundation which results in
loss of life and property, health and safety hazards, disruptions of commerce and
governmental servic.es," extraordinary public expendItures for flood protection and
relief, and inlpairment of the tax base, an of which adversely affect the public health,
safety and' general welfare:
B. These flood losses are caused by the cumulative effect of obstructions in areas of
speciar flood hazarctS"'whtctrlncrease-ffaodnefglits and velocities, and when
inadequately anchored, damage uses in other areas. Uses that are inadequately
flood-proofed, elevated, or otherwise protected from flood damage also contribute to
the flood loss.
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5/16/04 5:38 PM
CRAIG A. STONE & ASSOCIATES, 1,TD.
Consultants in Urban Planning and Developnlent
708 Cardley Avenue. Medford, Oregon 97504-6124
Telephone: (541) 779-0569 . Fax: (541) 779-0114 . E-mail: cstone@cstoneassociates.com
May 26, 2004
MAYOR AND CITY COUNCIL
c/o Ashland Planning Department
51 Winburn Way
Ashland, OR 97520
RE: Planning Action 2004-002; Lloyd Haines: Applicant
Dear Mayor and Council:
Together with attorney Alan Harper, this frrm represents applicant Lloyd Haines u[} the above
captioned matter. The following constitutes applicant's rebuttal testimony and will supplement
applicant's oral rebuttal to be delivered during the continued public hearing on June ll, 2004. To
begin, there remain three principal issues: 1) flood plain, 2) tree removal and protec~tion, and 3)
applicability of the city's Large Scale Development standards. These are addressed in rebuttal below.
Flood Plain Issues
Architect Dave Richardson worked closely with applicant's engineers at OT AK in producing the
design of this building. Attached is a letter from Mr. Richardson that responds to the floodplain
objections raised during the Council's public hearing of May 18,2004. To summarize:
1. The Ashland Flood Corridor and FEMA Floodway are accurately depicted on the pllans prepared
by Architect Richardson. In plan view, the building is clearly shown to be outside both the
Ashland Flood Corridor and FEMA Floodway. (Record p. A-2S)
2. There are two l00-year flood plain maps and two flood plain elevations - JffiMA's and
Ashland's - and these have been adopted by Ashland. Applicant commissioned OTAK engineers
to undertake additional detailed flood analysis which verified the accuracy of the FEMA flood
plain elevation. There exists a discrepancy between the flood plain lines (both Ashland's and
FEMA's) and the respective flood plain elevations. However, the evidence makes clear that the
proposed building's fll"St finished floor of the building is at an elevation of 1,877, which is 1.5 feet
above the Ashland flood elevation and 5 feet above the FEMA elevation. (Record p. A-~:)
3. With respect to flood plain elevations, both are accurately represented on the elevations for the
building and show that the building's first fmished floor is at or above both Ashland's and
FEMA's base flood elevations. (Record p. A-28) In fact, the building is permitted by Ashland
regulations to be two feet below the base flood elevation. This is along the same lines as
Councilperson Jackson's last comments when the public hearing was continued at 9:30 p.m.
4. Because the opposite bank of Ashland Creek is lower than the flood plain elevation, before the
flood level can rise to a level that would affect this building, it will spill out on the:: other side of
the creek, running through the paved parking area and down Water Street and the same has been
attested to by OTAK engineers. Recordp.I99-200
5. The proposed permanent bridge location is at or above the Ashland Creek flood elevation and will
be anchored to the building.
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Craig A Stone & Associates, Ltd.
Mayor and City Council
May 26, 2004
6. Mr. Richardson has offered stipulations with respect to flooding and riparian enhancement and I
hereby ~:>ffer the same pursuant to my of-record Power of Attorney: 1) that applicant will enhance
the riparian area beneath both the existing and proposed bridges subject to city approval of
enhancc:ment plans, and 2) applicant will eliminate the bridge support pier in Ashland Creek flood
corridor and instead anchor the bridge to the building deck.
Tree Removal and Protection
While applicant acknowledged that errors existed in applicant's original tree protection plan, their
nature and the circumstances that led to them were explained during the public hearing and will not be
further discussed. Recent plans and information concerning trees are now accurate and provide a basis
for decisiol]l making. Tree issues concern: 1) the alder tree near the property frontage, 2) the triple-
trunk maple: in Ashland Creek, 3) the grove of trees on OOOT's property, and 4) the alder tree on the
opposite sid.e of the creek.
1. Alder Tree (#1). Under Ashland's Site Design/Use Standards (ASDUS) buildings are to be built
from side lot line to side lot line and (other than arcades, alcoves and other recessed features) must
front upon or be no further than 20 feet from the sidewalk. This tree is approximately 8 feet from
the North Main Street sidewalk. (Record p. A-26) The evidence from applicant's arborist is: "If
construc:tion is to occur closer than 20 feet from the trunk, it is very unlikely that the Alder would
survive,," (Record p. 229) This leaves only the notion that a building could be built 20 feet from the
Alder (28 feet from the sidewalk) and be connected to the street with some type of "recessed
feature.''' The testimony of record has been that a building designed in this way to accommodate
the Alder will produce an unattractive tradeoff that may not be able to comply with other design
regulations and that the building will be on the site far longer than the tree. The city should not be
saddled with a building made unattractive and incompatible to preserve a tree that has, at this
stage, a. limited life. Moreover, applicant has agreed to: 1) plant trees on the adjacent OOOT
property or other specified location, 2) produce community sculpture from the removed Alder
whic~ 3) might be located in an art park applicant desires to create on nearby land. (Record p. 173)
Finally Applicant agrees with the opinion of the Assistant City Attorney that Ashland's tree
regulations do not trump its design/development standards.
2. Trip~rruDk Maple (#22). Based upon a request from the Ashland Tree Commission, applicant
has takc~n steps to preserve this tree. ' However, its preservation requires the removal of one of the
three trunks and pruning of the' other two. During the Council public hearing on May 18, 2004,
applicant's landscape architect testified that less than 50 percent of the tree canopy will be
removed and therefore the pruning does not constitute "removal" under, the ordinance.
Applialnt's arborist testified in writing that the tree will survive this pruning. (Record p. 262) One
opponent testified that it might as well be removed as it would be unattractive following pruning.
Applialnt disagrees and believes the tree will recover from the pruning (as trees normally do) and
will exist in the future as an important site feature.
3. ODOT Trees (#2-20). The canopy of these trees is primarily on ODOT's property and the same is
accuratc~ly shown on the current tree protection plan. The only tree in this grove to be removed by
applicant is: 1) the #5 a tree less than 6-inches DBH, (Record p. A-16 and A-30) 2) that is a demonstrable
hazard 1tree, (Record p. A-30) 3) which is not regulated by Ashland Tree Ordinance, (ALUO 18.61.035(0) and
(E)) and 4) separated from the subject property by a concrete retaining wall. (Record p. A-22)
Accordilng to applicant's arborist, the OOOT trees have been neglected and that pruning and
construl:tion of the proposed building will produce minimal impact. (Record p. A-ll) Despite one
opponelllt's testimony that the trees will be left as, "mere wooden toothpicks extending in the air,"
as the tree protection plan shows, the vast majority of the grove's canopy will not be touched.
Page 2 of 4
Craig A. Stone & Associates. Ltd.
Mayor and City Council
May 26, 2004
(Record p. A-30 and A-ll) Finally, based upon the testimony of Applicant's Landscape ,A.rchitect, the
removal of Tree #5 on OooT's property will not adversely affect the OooT grove of trees.
4. Alder On Other Side of Creek (#27). One opponent testified that this tree would 100 harmed if
the area near it were used for construction staging. During the public hearing, appliallllt's attorney
placed into evidence, a map showing the edge of paving on land near this tree. It shows that
construction staging will occur on a paved area near the tree. Alternatively, applicant noted that
his nearby paved parking lot could also be used for staging. Finally, the parking lane on Main
Street may be used. None of these alternative staging areas will affect any tree.
Large Scale Project Standards
Some opponents assert the ASDUS standards for "Large Scale Projects" apply here. The standard is:
"Developments (1) involving a gross floor area in excess of 10,000 square feet or a building frontage in excess of 100
feet in length, (2) located within the Detail Site Review Zone shall, in addition to complying to the standards for Basic
and Detail Site review, shall conform to the following standards:"
Applicant asserts the following are alternative permissible ways to address this standard:
1. This project comprises less than 10,000 square feet and building frontage less than 100 feet.
(Record p. A-2S) While the existmg building on this tax lot (over 100 years old) could bc;: combined to
produce more than 10,000 square feet, the "development" in this instance invollves only the
building now proposed. The term "development" in this standard is ambiguous and requires
interpretation. The City Council can and should interpret this provision to mean tha1t this building
does not constitute a development involving a gross floor area in excess of 10,000 square feet nor
a building having frontage in excess of 100 feet in length. Based upon this interpretation, the large
scale development standards simply don't apply.
2. If the Council determines this project must meet the large scale development standard, the
standard can be met, but will require the Council to impose conditions that: 1) require the building
share a common wall with the existing building, where the common wall may include structural
elements needed for seismic stability, and 2) the proposed bridge be widened to accommodate
seating. During the public hearing, applicant's attorney placed into evidence a spreadsheet
prepared by applicant's architect which demonstrates that sufficient amounts of "I)ublic spaces"
can be provided to comply with the relevant requirements of the ASDUS.
Finally, one opponent testified that the absence of a signature on the application foml was used as
license for applicant's agents to purposely misrepresent the facts. This is simply untruc~. The lack of
signature by Mr. Haines or myself (pursuant to my Power of Attorney) was a simple oversight The
basis of the errors in the tree protection plans were explained in detail in Landscape Architect
Galbraith's submittal of May 12, 2004. Record p. A-12 through A-21. Applicant Haines has since
signed the application form and noted on it his certification that all current amended documents are
true and correct. However, I will note that applicant's original proposed Finding~ of Fact and
Conclusions of Law are not as yet updated to reflect the amended plans and any other issues or
conditions that may arise during this proceeding. If this application is approved, applicant will
produce appropriate and up-to-date Findings of Fact and Conclusions of Law in suppOrt of the
affumative decision applicant urges the Council to reach.
Page 3 of4
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Craig A Stone &. Associates, Ltd.
Mayor and City Council
May 26, 2004
Very truly yours,
CAS/m C:\OOCUMENTS AND SETIlNGS\CRAlG STONE.CRAlG\MY DOCUMENTS\WS\tWNES\3\LET 3.DOC
Enclosures
cc. Lloyd H,ames
Alan Hnrper
File
Page of of 4
Architectural
Design Works
1105 Siskiyou Blvd. P.O. Box 1348 Ashland, Oregon 97520
David Richardson AlA Architect
Jac Nickels AlA CSI Architect
Date: 5/21/04
To: City Council
City of Ashland
From: W. David Richardson, Jr.
Architectural Design Works, Inc.
Re: Haines .Shasta Building Project
In response to some objections put forth by Randal Hopkins, regarding the Haines Shasta
Building Project at the Public Meeting at the City Council Meeting of 18 May 2004, I
offer the following responses:
1. Mr. Hopkins' stated that the "FEMA" Flood Plain Data shown on our Drawings sheets
A-101, A-102, A-103, A-104 and A-I05 was incorrect. He is incorrect in his assertion.
The data shown is a downloaded electronic file from the City of Ashland of the official
FEMA map of the area. Architectural Design Works, Inc. (ADW) visually confirmed this
by comparing it to a printed map acquired from the City of Ashland, and Kevin Timmins,
PE, a water resources engineer from Otak, also visually confirmed the location from an
official FEMA'map they had in their office.
2. Mr. Hopkins stated that the Ashland Flood Corridor and FEMA Flood Way is
incorrect. This assertion is also incorrect. An electronic copy of the Ashland Flood
Corridor and FEMA Flood Way map was downloaded from the City of Ashland and
visually confirmed by a printed map we received from the City of Ashland. These maps
are accurate as set forth on our drawings. No portion of the building is to be constructed
in either the Ashland Flood Corridor or the FEMA Flood Way.
3. The FEMA official "Base Floor Elevation" at this area is 1872.0. Mr. Haines had Otak
provide some additional studies, of which you have copies, to confirm that the FEMA
Base Flood Elevation (BFE) is correct. Since the opposite bank has a low area around
1872.1, in an actual flood event, as witnessed by the 1997 flood, the flood waters will
spill over the bank at the low point and not reach much above the 1872 point on the
building site.
5/24/04
Page I of2
Phone: 541-488-0719 fax: 541-488-1336 e-mail: info@ADWarchitect.com web: www.ADWarchitect.com
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4. Even though the official FEMA map shows the building site out of the flood plain,
ADW has used the existing 1872 grade elevation as the basis for BFE in designing the
building. This is shown on the "Basement Floor Plan/Site Plan" onSheet A-I07.
5. Even though the Ashland Flood Corridor BFE is shown at an unrealistic l875.5, ADW
has set the first floor elevation at 1877 or 18" above this Ashland BFE.
6. Mr. Hopkins' contention, that in his opinion, the building is unsafe from flooding is
completely unfounded. See item #5 above. He also contended that given a choice of
removing the tree or having flood safety he would remove the tree. I would agree with
this, but it is unnecessary to remove the tree. The only difference in what we are
proposing in limiting excavating at the existing Maple tree Critical Root Mass is that the
extra water storage is less than we had previously. Weare still proposing to excavate a
considerable amount more than required to make up for the mass of the piers we are
adding below the 1872 grade elevation.
In response to the City Staffs concern with the relocation of the new bridge, please take
into consideration the following facts:
7. The proposed new bridge elevation is at the 1877 floor elevation in lieu of the 1873.19
elevation previously proposed for the "draw bridge". The bottom of this proposed bridge
would be above the 1872 FEMA BFE. The higher bridge location will allow more light to
filter down to the bank area under the bridge. Moreover, applicant will agree to stipulate
to providi,ng appropriate riparian enhancement beneath the existing bridge to be removed
and the m~w bridge, with said enhancement plans made subject to review and approval by
the City.
8. We are showing one bridge support Pier at the building side located within the Ashland
Flood Corridor. Applicant will agree to stipulate to eliminate that pier and attach the end
of the bridge directly to the building' deck beam.
9. The new building side bank area covered by the "Existing Bridge" is approximately 41
Square Feet (SF). The original proposed "Draw Bridge" was 35 SF and the new proposed
"Fixed Bridge" is net (including deck reduction) 52 Square Feet. The additional area of
bank coverage from the existing to the current proposal is 11 SF . We feel this difference
is minimal and that this current proposal is much superior in design and circulation. If the
City staff still feels this is too large a difference, we can create an opening in the new
"Fixed Bridge" of 9 SF reducing the area to 43 SF.
Thank you and feel free to contact me for any additional questions you may have.
5/24/2004
Page 2 of2
(i.'-.y OF ASHLAND PLANNINC \PPLICATION
Type
Date Received
1'L-{tLI03
File No.
~o(f{-ooZ
Filing Fee
/ I
5l32. ()O
? \J ~5
I t(j I zllL
I
Zoning
Comp Plan Designation
Receipt #
o Minor Land Partition o Outline Plan (# Units ) o Zone Change
o Variance o Final Plan o Comp Plan Change
o Conditional Use Permit f9 Site Review ,0 Staff Permit
o Boundary Line Adiustment o Annexation o ,Solar Waiver
APPLICATION IS FOR:
Application pertains to 18.62 and 18.72
chapter, section, subpart
of the Ashland Municipal Code.
APPLICANT
Name
Lloyd M. Haines
Phone
Address
51 Water Street Ashland OR 97520 Suite 222
PROPERTY OWNER
Name
88 North Main, LLC
Phone
Address
51 Water Street, Suite 222 Ashland OR 97520
SURVEYOR ENGINEER ARCHITECT LANDSCAPE ARCHIT CT (may need to IUse back page)
(s~e. (e>>U'Se
Aqent
Name
Craig A. Stone & Associates Ltd.
, \
Phone
779-0SfiQ
Address 708 Cardley Ave
Medford OR 97504
-DESCRIPTION OF PROPERTY
Street Address SA Nnrt-h M;:t; n ~t-r'::'~+-
Assessor's Map No. 39 1 E 09BB
Tax Lot(s) 9800
When was the above described property acquired by owner?
On a separate sh'~et of paper, list any covenants, conditions or restrictions concerning use of property or improvements
contemplated, as well as yard set-back and area or height requirements that were placed on the property by subdivision tract
develo ers. Give date said restrictions ex ire. '
FINDINGS OF FACT
Type your response to the appropriate zoning requirements on another sheet(s) of paper and enclose it
with this form. Keep in mind your responses must be in the form of factual staterTlents or findings of fact
and su rted b evidence. List the findin s criteria and the evidence which su )orts it.
:<5~
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I hereby certify that the statements j information contained in this apl- Jtion, including the enclosed
drawings and the required findings at fact, are in all respects true and correct. I understand that all
properjy pins must'bo shown on the drawings'and visible upon site inspection. In the event the pins are
not shown or their location found to be incorrect, the owner assumes full responsibility. .
I further understand that if this request is subsequently contested, the burden will be on me to establish:
1) that I produced sufficient factual evidence at the hearing to support this request;
2) that the findings of fact furnished justifies the granting of'the request;
3) that the findings offactfumished by me are adequate; and further
4) that all structures or improvements are properly located on the ground.
Failure in this regard will result most likely in not only the request being set aside, but also possibly in any
structures being built in reliance thereon being required to be removed atcmy expense. If I have any
doubts, I am advised to seek competent professional advice and assistance~
: ~~~A~
, Applican~ S SIgnature **
s-[,-o~
Date '
As oWf.ler: of the propertY involved in. this l€!quest, I have read and understood the complete application and
its consequences to me as a properly owner. '
~~~
. ~ ~
Property Owner's ignature **
~(ur~
Date
NOTICE: Section 15.04.240 of the Ashland Municipal Code prohibits the occupancy of a building or: a release of:
, , utilities prior to the issu~nce of a Certificate of Occupqncy by the Building Division AND the completion of all zoning
requirements and conditions imposed by the Planning Commission UNLESS a satisfactory performance bond has
be~n posted to ensure completion. VIOLATIONS may result in prosecution and/or disconnection of utilities.
nave Richardson 1105 Siskiyou Blvd. Ashland OR 97520
Architect
. John Galbraith 145 S. Holly Street, Suite A Medford OR 97501 Landscape Architect
**
.The certificcltion I have made relates to all documents that were originally
filed in this: matter as amended, modified and corrected by ,subsequent filings.
C I lr Y 0 F
ASHLAND
Memo
DATE:
TO:
FROM:
RE:
June 1, 2004
Honorable Mayor and City Council ./f5}\
John McLaughlin, Director of Community Developmen~
Staff Response - PA2004-002 - Haines .
Mr. Hopkins, during his presentation to the Council, has raised concerns regarding the appHcation of the
City's Development Standards for Floodplain Corridor Lands to this project, including doubts over the
accuracy of the site plan with respect to the elevation of the 100-year flood and the location of Ashland's
Floodplain Corridor boundary. Staff has provided some clarification to the issues raised by l~. Hopkins, as
we understand those concerns to be.
The Ashland Creek Floodplain Corridor as depicted on the proposal's site plan.
The Ashland Creek Floodplain Corridor boundary is accurately represented on the applicant's site plan. The
project architect obtained the information from City of Ashland electronic data files. The As:hland Floodplain
Corridor is similar to a zoning overlay, where additional development standards beyond the general
requirements identified under the zoning district (i.e. C-I-D) are applied to lands within the corridor.
As shown in 18.62.050, for this application, the key issues for defInition of Floodplain Corridor Lands are:
1. All land contained within the 100 year flood plain as defmed by the Federal Emergency
Management Agency (FEMA), in maps adopted by Chapter 15.10 of the Ashland Municipal
Code.
2. All land within the area defmed as Flood plan Corridor land in maps adopted by the Council as
provided for in section 18.62.060.
The Ashland Floodplain Corridor is essentially a zoning line, and encompasses the area within the lines
shown on Map A-I03. This is an overlay zone, where the standards of the P&E ordinance apply. This line
was drawn by the City based upon photos and evidence of historic flooding within the Ashl~md Creek area,
and represents the horizontal extent of flooding. It was not based on detailed topographic analysis or a
hydrologic flood model. As seen by the angular nature of the line, it doesn't necessarily folllow the
topography exactly, but rather is a general depiction of the extent of historic flooding. This boundary is far
wider and more encompassing than the FEMA boundary alone. An elevation is assigned to this Floodplain
Corridor area (in this instance 1875.5') to ensure that whatever is constructed within these boundaries is done
so at an elevation safely above the flood level. The elevation is not used to establish the bOlmdary (such as is
done with the FEMA boundary) but rather as a regulatory tool for establishing floor levels flor development
within this corridor.
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning Division Tel: 541488-5305
20 East Main Street Fax: 541488-5311
Ashland, Oregon 97520 m: 800-735-2900
www.ashland.or.us
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111
While the project is outside the Ashland Creek Floodplain Corridor mapped boundaries, portions of the
proposed structurle are clearly within the FEMA 100-year floodplain, as shown on attached map A-10l. The
location of the approximate FEMA 100-year flood is based upon the plotting of base flood elevations
(BFE' s) derived from the Flood Insurance Study for the City of Ashland (December 1980). Standard
hydrologic and hydraulic study methods were used to determine the flood data found in the 1980 Flood
Insurance Study. Consequently, the approximate location of the 100-year flood elevation is based upon a
mathematical conlputer modeling of the Ashland Creek basin, while the Ashland Floodplain Corridor
boundary is a generalized zoning overlay not derived through an engineered model of a potential flood event.
Since the project was located on a portion of the lands identified as FEMA 100-year floodplain, it was
subject to the P&E ordinance and the floodplain corridor standards. .
Additionally, to ensure accuracy, the applicant was requested to provide additional hydrologic flood
modeling information. That information was provided by OT AK and is included in the record. It essentially
confirms the FE~lA flood elevation, and the use of 1875.5 as a safe elevation for the floor elevation of the
new structure.
In the case of the Haine's project, FEMA estimates the 100-year flood elevation at 1872 feet. While FEMA's
Model Ordinance would require commercial structures to be flood proofed up to or one foot above the
elevation of the estimated 100-year flood elevation (i.e. 1872), Ashland's elevation of 1875.5 requires that
the required flood proofmg measures be incorporated upon the structure an additional 2.5 feet to 3.5 feet
above the 100-year flood elevation. Flood proofmg refers to protection measures made to a building to
ensure that floodwaters do not damage it. This includes certifying that structural components of the structure
are designed to resist hydrostatic and hydrodynamic loads and the effects of buoyancy encountered during a
flood event.
In general, this arl~a behind the culvert under the Lithia Way viaduct is a pooling area during a flood event.
The elevation of the pool during such an event is modeled to be approximately 1872 feet. Should the pool
elevation exceed 1hat height, it will spill over into the parking lot and paved area under the viaduct, and
ultimately return to the creek channel. Since the parking area is lower than 1872, it will take the overflow,
and the ''uphill'' side that is proposed for the Haines development will not be at risk to flood damage.
Further, as shown on the attached sheet A-I 03, the main constriction for the creek is between the Siskiyou
Brew Pub building and the existing Ashland Creek Bar and Grill building. The new structure is located in
the pooling area, and will not impact any areas of active or dynamic flood flows.
Staff notes on documents within the record of the application.
Mr. Hopkins makles reference to Staff notes found in the margins of OT AK's "Flood Hazard Assessment for
Shasta Building '03" (original Exhibit 6 - 12.12.04). These were unofficial notes based upon an initial
reading of the document. Specifically, Staff believed the Floodway boundary (not Floodplain) was
inaccurately represented on the original site plan. In order to evaluate and address Staff's concern, the
applicant voluntaIily postponed the Planning Commission's review of the application that was scheduled for
January 2004. OT AK provided a formal determination of the Floodway location on February 13, 2004
(Exhibit 7c - pag(: 205), with the revised Floodway boundaries shown on a revised supplemental drawing
(Exhibit A-I 03 - page 211). Based upon information contained with the 1980 City of Ashland Flood
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning Division Tel: 541488-5305
20 East Main Street Fax: 541488-5311
Ashland, Oregon 97520 TTY: 800-735-2900
www.ashland.or.us
r~'
Insurance Study and the separate engineering analysis provided by OT AK Engineers, Staff believes the
Floodway boundary is accurately shown on the site plan.
Supplemental Brief Submitted by Hopkins
Item 1. The applicant has submitted a signed application.
Hopkins Concern of FEMA floodplain - 1872' elevation - (Exhibit 48) in Supplemental Brief.
Mr. Hopkins raised a concern in his supplemental brief regarding the location of the FEMA floodplain based
on topographic information submitted by the applicant. Hopkins claims that the document t~rroneously
describes the FEMA 100 year floodplain. In Hopkins' Exhibit 48, the highlighted elevations refer to the site
after final grading. The existing grades (shown by the dashed lines) show the elevations in the same locations
as have been indicated on the previous submittals by the applicant. The grading will not occ;ur in the shaded
area identified as the tree protection zone for the maple. The grading will increase the pool storage under the
building during flood events.
Review of the information clearly shows that there is no change in the existing grade infomLation as
previously submitted, nor any change in the area of encroachment.
Hopkins Objection to new staff report
Hopkins objects to the submission of any staff report less than seven days prior to the hearing. ORS
197.763(4)(b) provides: (b) Any staffreport used at the hearing shall be available at least seven days
prior to the hearing. If additional documents or evidence are provided by any party, the local
government may allow a continuance or leave the record open to allow the parties a reasonable
opportunity to respond. Any continuance or extension of the record requested by an applicant shall
result in a corresponding extension of the time limitations ofORS 215.427 or 227.178 and ORS 215.429
or 227.179. While the general rule is that the staffreport should be available at least seven days prior to
the hearing, the statute does allow for new documents and evidence to be produced by !illY party. In the
event they are, and the Council determines the new evidence warrants a response from other parties, the
Council may either leave the record open for a reasonable time or continue the hearing. Should the
Council choose the leave the record open, we would recommend that the record not be left open past
June 8. That would allow a Council decision on June 15, and adoption of the findings on June 16 with a
mailing of the decision on June 17th or_18th. The 120 day time period expires June 18.
Conclusions
An evaluation of potential impacts from the project upon neighboring properties during a flood event is of
paramount concern. The project's engineering fmn, OTAK, has presented a revised flood hazard assessment
of the project, including a determination of the estimated 100-year flood elevation and Floodway boundary.
The updated documents, Exhibits 7b, 7c and 7d, are found on pages 199 through 221 of the record. OTAK
concludes that the all floor levels of the building are above the estimated 100-year water swface elevation
and that improvements associated with the proposal will increase flood storage volume to this location of
Ashland Creek. Additionally, survey data indicates that the right bank of Ashland Creek at this location is
lower than the estimated 100-year water surface elevation. Consequently, flood flows would probably
overflow the right bank and escape the main channel of Ashland Creek well before reaching the elevation of
the lowest floor level of the proposed building on the left bank..
DEPARTMENT OF COMMUNITY DEVELOPMENT
Planning Division Tel: 541488-5305
20 East Main Street Fax: 541488-5311
Ashland, Oregon 97520 TTY: 800-735-2900
www.ashland.or.u5
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