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HomeMy WebLinkAboutExhibit 3 Appeal Of Planning Action 2006-00078 Helman Springs Development This appeal is unique in that appellants are parties who spoke both for and against certain aspects of the plan, and certain hearing processes that occurred. We put forward this joint appeal of Planning Action 2006-00078 ("PA06-78") to correct alleged errors and omissions in the Planning Commission (PC) decision. None of the appellants are opposed to approval of this project if the following points and errors are adequately corrected or mitigated. Appeals document. Appeal issues have been previously numbered and described in detail in the record. Our work since filing the appeal has been to build a common understanding and consensus on how to remedy the issues with solutions bettering the project and neighborhood. This appeal document recommends to council solutions to specific appeal issues. Quotes of decision sections with alleged errors are shown in italics here. Proposed remedy replacements are in bold italics. Nothing to adjudicate. In this appeal, we bring no disagreement among the parties. Appellants met in various configurations for 12+ hours to develop this consensus appeal with proposed remedies on all issues cited. We bring you alleged errors and jointly agreed remedies for council approval. Water Issues Background Difficult water situation. Most consensus-building time was devoted to water issues. Your 478-page project record shows many difficult water issues: seasonal and year-round springs, several disconnected wetlands, a leaky geothermal swimming pool, an extensive, partially documented TID underground water pipe system, a well with no well log, geothermal water with no filed water rights, a geothermal spring converted to a hand-dug well with spring box, a cattail wetland overflowing the curb year-round producing algae and slippery pedestrian conditions, an extensive westside wetland, etc.. Language change from the record: 1. New geothermal language. The PA06-78 record speaks inconsistently of the well and 'associated spring' as a 'hot spring', 'warm spring', 'hot well', 'warm-water well', 'artesian well', etc.. The well water is warm, not hot (810F), which led to language problems at PC. After PC approval, Sage contracted for a water analysis. The week before the council appeal hearing, appellants received the water report, which provided significant new information, altering this appeal document. Water analysis showed that ALL springs on the property are geothermal springs, with high boron, sulfur, and chloride content. One test pit exception in the southwest area of the parcel shows a high nitrate content. To remedy record confusion over water type, appellants (after much discussion) describe the water here and in council presentations as geothermal water, and all springs as geothermal springs. Language change from the record: 2. No cold springs. Throughout the record, the parties treated all but one of the property's several seasonal and year-round springs as cold springs. Cold springs are gravity-fed from higher- elevation rain and snow soaking into the ground, flowing downhill underground, and reemerging at lower elevations as cold water. Water analysis showed no cold springs on the property at the time of testing (August 2006). Other ephemeral springs may not be quantified within this analysis. All springs analyzed were geothermal. Language change from the record: 3. Well change. The record shows the geothermal well was 700-1000' deep, based on anecdotal evidence. Professional testing showed the well was 24' deep, and probably hand-dug. Language change from the record: 4. West side wetland is a special geothermal wetland. The west side wetland, shown in the record as a cold spring wetlands, has become a geothermal wetland, with the high boron, sulfur, and chloride content characteristic of geothermal water. This geothermal wetland holds promise as a special demonstration wetland to educate Ashland community members as to what a geothermal wetland is, what geothermal water is, the plants that grow in such water, and how plant and animal life adapt to this special geothermal ecosystem. Water-Related Errors and Jointly Agreed Remedies Error 1a. PC erred in not properly identifying all existing and natural features. ALUO 18.88.030.A.c. requires existing and natural features to be identified, and for significant features to be protected. PC decision did not identify all existing and natural features. Instead, Findings 2.7 said that existing and natural features included x without identifying the remainder. Finding 2.7 (in relevant part) The Planning Commission finds that the existing feature on the property includes the wellhead and the natural features of the property include trees, wetlands and a spring.... Jointly agreed remedy. Replace this sentence with the following bold sentences, plus remedies below. The property's wellhead is a significant existing feature. All trees, springs, and wetlands identified on the applicant's Outline Plan are natural features. All trees not planned for removal, and all wetlands and springs not mitigated, in the Outline Plan are significant natural features. Error 1 b. PC erred when Finding 2.7 said 'a spring' is a natural feature without including other springs. PC findings did not identify which springs on this property were and were not protected under ALUO 18.88.030.A.c. Jointly agreed remedy. Add to Finding 2.7: All springs shown in the Outline Plan are geothermal springs, and are existing and natural features. All geothermal springs not mitigated in the Outline Plan are significant existing and natural features. Error 1 c. PC erred in not identifying geothermal water as a significant existing and natural feature. Geothermal water itself is a significant natural feature. Jointly agreed remedy. Add to Finding 2.7: The geothermal water is a significant natural feature. Error 1d. PC erred in not finding the pool was a significant existing feature. Public testimony in multiple hearings asserted the pool was properly considered a significant feature under ALUO 18.88.030.A.c. After the PC approval decision, before findings were approved, PC received evidence via newspaper reporter and subsequent article that confirmed anecdotal information that water naturally entered the pool. PC decided to not incorporate this evidence into the findings. (The procedural errors associated with this incident are detailed in the record.) The substantive error was that PC failed to identify the pool as an existing feature. Not only does the pool contain water from the protected 'associated spring', the pool itself functions as an existing feature, because water enters the pool through springs emerging from the pool bottom, and is thus a significant existing feature housing geothermal spring(s). The pool is human-made, so it is not a natural feature, though it is a significant existing feature. Jointly agreed remedy. Add to Finding 2.7. The pool is a significant existing feature. Error 2. PC erred by specifying a common area around the geothermal spring, without specifying size, dimensions, shape, or location. PC required a common area whose size and shape was unknown. Elsewhere in PC findings a common area was considered homeowner association property. Here the common area was unclearly described as if part of the subdivision. Findings 2.7 (in relevant part). Accordingly, the applicants have proposed to preserve the wellhead and associated spring in an open space for the subdivision. Jointly agreed remedy. Replace that sentence with: Lot 18 shall have an easement area around the geothermal springbox, the size, shape, and location of which are shown on the applicant's submitted map. Error 3. PC improperly required a vague 'water feature'. Finding 2.7 and Condition 33 required applicant to build "a water feature served by the associated spring from the well", after finding the "associated spring" to be a significant natural feature included in common area, open space, and unbuildable area. This condition is so vague as to be illegal, since the undefined water feature could be anything from a fountain to an indoor spa. Jointly agreed remedy. Replace the water feature sentence with: Applicant shall construct a water feature that (1) highlights and presents the geothermal water as a day lighted part of the open space, (not inside a building), (2) honors the historical character of the geothermal springs area, and (3) directs the feature's geothermal water into the west side geothermal wetland. Traffic Mitigation Errors The issue is mitigating subdivision traffic impact on neighborh'ood public safety and street improvement costs. Legal authorities. Legal authorities for this error are ALUO 18.80.020.8.7, and the requirement to mitigate identified negative impacts on public interests such as public safety and street improvement liens on neighbors. ALUO 18.80.020.8.7. [in relevant part] Access to subdivision. All major means of access to a subdivision or major partition shall be from existing streets fully improved to City standards... This code requires that: 1. Existing streets, not just new streets inside the development, be improved to City standards. 2. Access street improvements include ALL major means of access, not just one primary access route. Error 2. Appellants Stout and Bullock assert PC error in (2a) not requiring as a condition of development approval for all access streets to be upgraded to city standards and (2b) not requiring developer to share the expense of street improvement costs as traffic mitigation costs. Helman Springs Development has 2 vehicle entrances (Otis St and Randy St), and 3 major means of access (1 =south on Drager, 2=west on Otis and Laurel and 3=west on Randy via Laurel). Laurel Street, a major access street, has a proposed LID that's 2 years behind schedule. Full documentation on this error and proposed solutions are detailed in the record for these errors, and is incorporated herein by reference. Old non-remonstrance LID policy. Traffic mitigation errors arose because an old policy has stopped without replacement. Past planning approvals required developers to mitigate their traffic impact by LID participation and signing a non-remonstrance agreement. These 2 approval conditions forced the developer to financially participate in bringing access streets to city standards through an LID without the power to vote to object (remonstrate). This policy used the LID mechanism for a developer to pay 'their fair share' for traffic mitigation. Old LID policy stopped. Bullock presented to PC (and Planning Dept ("PD")) that non-remonstrance agreements are constitutionally illegal, as a property right taking under the Bill of Rights and Dolan v. Tigard, improperly denying property owners the right to vote. Separately, in May 2006, Plaza St LID demonstrated that non- remonstrance agreements are not binding. Under Resolution 1999-09, a developer has the right to object, though their signed agreement says otherwise. In the 125-lot Nevada St LID, currently before Oregon Court of Appeals, the developer had a single-person majority vote, with 69 lots. This now clarified voting power enables developer(s) to stop an LID after signing a non-remonstrance agreement, even if their subdivision is not attached to improvements. No policy replacement yet. Because of these issues, PD and PC no longer require LID financial participation plus non-remonstrance agreements to mitigate traffic impact and upgrade access streets. PC held a study session on this issue, and requested Council to establish its new policy on appropriate use of LIDs and non-remonstrance agreements. At this point, Council has not decided on the new policy. Rock and a hard place. This policy gap between old and new puts PA06-78 in a difficult situation. The prior policy to mitigate traffic has stopped, and a replacement policy hasn't been decided. This subdivision's traffic impact is not mitigated, with no framework to provide same. Options proposed to PC, PD, and Council await the decision. Jointly agreed remedy. After much discussion, appellants propose these remedies as approval conditions for PA06-78: (1) Council shall establish, on an expedited and timely basis, its new policy regarding the appropriate use of LID approval conditions and non-remonstrance agreements or other options to mitigate subdivision traffic impact. (2) As part of final plan approval, based on a plan submitted by PD staff and/or applicant, PC shall require mitigation of traffic impact as an approval condition within the guidelines of council's new traffic mitigation policy. Procedural Errors Procedural errors were numbered and detailed in records documents, which are incorporated herein by reference. Although some procedural errors are cured by the de novo appeals hearing, they deserve council attention because they are systemic to PC's and council's planning process and could be repeated if not addressed. Errors Resolved By Relatively Simple Wording Changes In the PC Order Error 3a. PC improperly changed mid-process from treating the application as having one applicant to two. The caption shows one applicant, Sage Development, LLC. PC's decision changed language mid-process. Finding 2.7 shifted from the legally correct singular to the plural 'applicants': "The applicants have agreed that the wellhead is a significant existing feature and the associated spring is a significant natural feature as defined in the Performance Standards Options Chapter 18.88." This ambiguity, if not resolved, makes it difficult to clearly assert the extent of PC's legal authority over different aspects of its decision, since in some places the findings, conditions, and conclusions refer to applicant, as if the decision only applied to one of multiple applicants. Jointly agreed remedy. This and other references to 'applicants' should be changed to one applicant. Sage clarifies for the record that Sage is, and has been, the agent for Sylvia Chambers for the entire parcel, so there is only one applicant. Findings 2.7 should be reworded as in the next example. Error 3b. PC improperly asserted as findings what applicant agreed to. "The applicants have agreed that the wellhead is a significant existing feature and the associated spring is a significant natural feature as defined in the Performance Standards Options Chapter 18.88. " This is an error because (1) finding what an applicant (or appellant) has agreed to is not material to conclusions based on the facts, (2) it affects applicants' and appellants' status to appeal those findings, and (3) it is a slippery slope, subject to abuse, by finding the applicant agreed to something that the applicant or appellants did not agree to, or agreed to in one context that later changed, etc. by asserting that someone agreed to the conclusions, thereby avoiding the requirement to base conclusions on record facts. Applicants, property owners, and appellants have a right to disagree with any finding that improperly quotes what was agreed to, or which is outside the context being agreed to at the time. It is improper for PC to make any finding or condition asserting what someone agreed to, rather than simply asserting PC's finding or condition. Given that higher appeals (LUBA, Court of Appeals, and Oregon Supreme Court) normally accept findings as fact, improperly asserting what someone agreed to might be misconstrued as removing the right to appeal the finding. PC has jurisdiction to issue its own findings. PC lacks jurisdiction to make findings of "agreed to" that limit appeal rights. Jointly agreed remedy. Finding 2.7 should remove references to 'applicants have agreed' and simply assert PC's findings, as: "The wellhead is a significant existing feature under ALUO 18.88.030.A.c." "The associated spring is a significant natural feature under ALUO 18.88.030.A.c." Error 3c. PC's decision improperly shifts quasi-judicial decision authority to city attorney. It's improp~r for city attorney to have approval over the conservation easement or deed restrictions. Extensive references on the separation of powers cases previously submitted to City in Nevada LID court case are incorporated herein by reference. Conservation easement approval should work the same as the utility plan, tree protection plan, etc. and be submitted as part of the Final Plan application for PC approval. PD and city attorney should review the conservation easement!deed restrictions, and work with Sage to prepare an acceptable conservation easement! deed restriction. Only PC, the quasi-judicial body should have final decision authority, which should be at Final Plan. Jointly agreed remedy. Remove the 2 words "and approval" in Condition 33, Sentence 3. Add: The conservation easementl deed restriction shall be submitted to PC for approval as part of the Final Plan. Continuing Issues Deferred To Final Plan Based on the developer-neighborhood working relationships, several issues were deferred to Final Plan approval: 1. Fencing. 2. Planting required trees. 3. Storm drain runoff. City of Ashland Planning Exhibit Exhibit # ()O,- ZoO PA# ~"..ooo 03telO J8fifE..