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HomeMy WebLinkAbout2007-0605 Documents Submitted at Meeting BEFORE THE CITY COUNCIL CITY OF ASHLAND, JACKSON COUNTY, OREGON June 5, 2007 't'f" O~.<J \ v~,,; dj. \f S~\ ()~ \~ \i' 'S In the Matter of an Appeal of Planning Action 2006-02354, a Request for Site Review Approval to Construct a Two-story building for the property located at the southern corner of the ) intersection of North Main St. and Glenn Street. An exception to ) FINDINGS OF FACT the street standards is requested to install a curbside sidewalk ) CONCLUSIONS OF LAW on the Glenn Street property frontage. A variance is requested ) AND ORDER to reduce the special setback requirement for front yards for ) properties abutting an arterial street from twenty to ten feet, ) within the City of Ashland, Jackson County, Oregon. ) Applicant: Raymond J. Kistler, Architecture. I. NATURE OF PROCEEDINGS This matter comes before the City Council for the City of Ashland for a de novo appeal hearing. The appeal is from a March 13, 2007 decision of the City of Ashland Planning Commission approving inter alia a request for a site review approval, exception to street standards and variance to the special setback on the subject property located at the intersection of N. Main Street ad Glenn Street. After a mandatory pre-application conference was held, the subject applications for site review approval, street exceptions and a variance were filed by the applicant with the Planning Department on December 8, 2006. The application was deemed incomplete. Additional materials were submitted by the applicant and the application was deemed complete on January 2, 2007. Notification of the public hearing before the Planning Commission on January 9,2007, was mailed, pursuant to Chapter 18, Ashland Land Use Ordinance to area property owners and affected public agencies. Notice of the January 9, 2007, hearing was also published in the Ashland Daily Tidings. On January 9,2007, the Planning Commission conducted a public hearing and considered the oral and written testimony presented, the staff report and the record as a whole. The application was continued to the Planning Commission meeting on February 13, 2007. On February 13, 2007, after the close of the public hearing and process and the close of the record, the City's Planning Commission deliberated and approved the application, subject to conditions pertaining to appropriate development of the Property. On March 13,2007, the Findings, Conclusions, and Orders of City's Planning Commission were duly signed by the Chairperson of City's Planning Commission. The Planning Commission's findings are attached hereto as Exhibit "A" and are specifically incorporated herein and made a part hereof by this reference. (In the event of conflict between the Planning Commission findings and Council findings, Council findings control). An effort was made to request of the Planning Commission Chair pursuant to Planning Commission rules to bring forth a motion for reconsideration but the Chair declined, citing no new material facts. On March 20, 2007, and on March 23, 2007, the Ashland City Council met at duly noticed public meetings and discussed calling up the Planning Commission's March 13, 2007 decision. Following discussion, by a vote of 3-1, the Council voted to call up the appeal. As stated by the City Attorney, the reason for the appeal would be to provide guidance to the Planning Commission on balancing between the special setback standards and the historic standards as they relate to the variance criteria. The Council finds and determines that this alone is the basis for the Council initiated appeal. Prior to the discussion, Councilors disclosed ex parte communications and made affirmative statements of impartiality. P A 2006-02354 N. Main St. & Glenn St. Page J Notification of the de novo public hearing before the City Council was mailed, pursuant to ALUO to area property owners and affected public agencies. Notice of the appeal hearing was also published in the Ashland Daily Tidings. On May 1, 2007, the City Council conducted a public hearing in the City Council chambers; during the public hearing before the Council, testimony and exhibits were offered and received, in addition to the exhibits and documents reflected in the record before Council. Pursuant to a request from a citizen the record was left open for seven days and the matter was continued to May 9,2007. After the conclusion of testimony at the continued hearing, the hearing was closed and the record was closed. The applicant waived the right to submit final written argument. The Council deliberated and approved the application in file 2006-02354, with conditions, upholding the decision of the Planning Commission. The Council's action generally upheld the Findings, Conclusions, and Orders of the Planning Commission, with some modifications as set forth below. Based upon the evidence in the record, the Council makes the following findings of fact and conclusions of law: II. FINDINGS OF FACT 1) The Nature of Proceedings set forth above are true and correct and are incorporated herein by this reference. 2) The subject of Planning Action # 2006-02354 is real property located within the City of Ashland ("City"), and described in the County Tax Assessor's maps as Tax lot 3600 of 39-1 E-05DA is located at the southern corner of the intersection of N. Main St. and Glenn St. 3) The zoning of the Property is E-1 (Employment). 4) The applicant in Planning Action # 2006-02354 is: Raymond J. Kistler, Architecture, ("Applicant). III. JURISDICTION The May 1, 2007 Council Communication quotes the following ALUO procedural requirement: Appeal Proceedings (18.108.110): A. Appeals of Type I decisions for which a hearing has been held, of Type II decisions or of Type III decisions described in section 18.1 08.060.A.1 and 2 shall be initiated by a notice of appeal filed with the City Administrator. The standard Appeal Fee shall be required as part of the notice. Failure to pay the Appeal Fee at the time the appeal is filed is a jurisdictional defect. 1. The appeal shall be filed prior to the effective date of the decision of the Commission. 2. The notice shall include the appellant's name, address, a reference to the decision sought to be reviewed, a statement as to how the appellant qualifies as a party, the date of the decision being appealed, and the specific grounds for which the decision should be reversed or modified, based on the applicable criteria or procedural irregularity. 3. The notice of appeal, together with notice of the date, time and place of the hearing on the appeal by the Council shall be mailed to the parties at least 20 days prior to the hearing. 4. The appeal shall be a de novo evidentiary hearing. 5. The Council may affirm, reverse or modify the decision and may approve or deny the request, or grant approval with conditions. The Council shall make findings and conclusions, and make a decision based on the record before it as justification for its action. The Council shall cause copies of a final order to be sent to all parties participating in the appeal. B. Appeals may only be filed by parties to the planning action. "Parties" shall be defined as the following: 1. The applicant. 2. Persons who participated in the public hearing, either orally or in writing. Failure to participate in the public hearing, either orally or in writing, precludes the right of appeal to the Council. P A 2006-02354 N. Main St. & Glenn St. Page 2 3. The Council, by majority vote. 4. Persons who were entitled to receive notice of the action but did not receive notice due to error. In addition to the appeal provisions provided above, ALUO 18.108.070 (5) provides: The City Council may "call up" any planning action for a public hearing and decision upon motion and majority vote, provided such vote takes place in the required time period, as outlined below. No appeal was filed by the applicant or by any other person who participated in the public hearing within the appeal period. The only basis for Council consideration of this action is the Council's own majority vote on March 23, 2007 to appeal the matter. The Council action on March 23, 2007 was as follows: Councilor Hartzell/Navickas m/s that Council appeal PA #2006-02354 for a hearing. DISCUSSION: Councilor Hardesty voiced support for calling this forward. Councilor Chapman shared his concern that they are getting dangerously close to prejudging this. Councilors Hartzell and Navickas clarified their general concerns are not with this specific proposal. Roll Call Vote: Councilors Hardesty, Navickas and Hartzell, YES. Councilor Chapman, NO. Motion passed 3-1. . Type I, II and III decisions identified in ALUO 18.108.070 (2)-(4) all provide that appeals shall be "as provided in section 18.108.110A" However, ALUO 18.108.070 (5) references the Council's ability to "call up" a decision, as distinct from "appeal." The Council finds and determines that this provision is an independent source of appeal and that the appeal requirements of 18.108.11 OA do not apply. In addition, certain of the "appeal" requirements simply do not make sense when applied to the Council calling up a decision, e.g. specifying error will invite allegations of prejudgment. Accordingly, the Council finds and determines that the Council has jurisdiction over the appeal, as the Council by majority vote, within the appeal period called the decision up for hearing. IV. FINDINGS APPLYING APPLICABLE CODE CRITERIA 1) The Council finds and determines that the relevant approval criteria are found in or referenced in the following provisions of the Ashland Land Use Ordinances. · The criteria for Site Review approval in 18.72.070 are as follows: A. All applicable City ordinances have been met or will be met by the proposed development. B. All requirements of the Site Review Chapter have been met or will be met. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options. · The criteria for an Exception to the Street Standards are described in 18.88.090 as follows: A. There is demonstrable difficulty in meeting the specific requirements of this chapter due to a unique or unusual aspect of the site or proposed use of the site. B. The variance will result in equal or superior transportation facilities and connectivity; C. The variance is the minimum necessary to alleviate the difficulty; and D. The variance is consistent with the stated Purpose and Intent of the Performance Standards Options Chapter. · The criteria for a Variance in 18.100.020 are as follows: P A 2006-02354 N. Main St. & Glenn St. Page 3 A. That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. B. That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. C. That the circumstances or conditions have not been willfully or purposely self-imposed. 2) The 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, and the whole record. 3) The Council finds and determines that this request for a Site Review approval to construct a two-story building, the request for an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage and the request for a variance to reduce the special setback requirement for front yards for properties abutting arterial streets from twenty to ten feet, meets all applicable criteria for approval described or referenced in the ALUO sections above. This finding is supported by the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, attached hereto and specifically incorporated herein by this reference, the detailed findings submitted by the applicant specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record. 4) Criteria: [ALUO 18.72.070] The criteria for Site Review approval are as follows: A. All applicable City ordinances have been met or will be met by the proposed development. B. All requirements of the Site Review Chapter have been met or will be met. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options The City Council finds and determines that the proposed development meets the approval criteria for Site Review approval. An office is a permitted use in the Employment (E-1) zoning district. The E-1 zoning district requires at least 65 percent of the gross floor area of the ground floor to be used for permitted or special permitted uses. In this case, all of the ground floor building square footage is designated as office use which is a permitted use in the E-1 zone. The site is located in the R-Overlay which allows residential units as a special permitted use. Residential units are permitted at 15 units per acre. The residential density of the site is two units (.136Ac x 15 = 2.04 units). The proposal is to use the second story for office spaces, two residential units, or a combination of office space and a residential unit. The E-1 zoning district does not require standard setbacks from property lines unless a parcel abuts a residential zoning district. The subject parcel abuts a residential district at the rear (east) of the site. A ten foot per story setback is required for a rear yard abutting a residential district. The proposed building is 50 feet from the rear (east) property line, and therefore exceeds the required 20-foot setback requirement for the two-story building. The building is angled at the northwest corner of the lot adjacent to the intersection of N. Main St. and Glenn St. so that the structure is located outside of the vision clearance area as required. The proposed building height is approximately 26 feet which is under the maximum building height of 40 feet in the E-1 zoning district. The proposal will result in 22% of landscaping on site which exceeds the 15 percent minimum for the E-1 zoning district. The City Council finds and determines that the proposed development meets the off-street automobile parking requirements of Chapter 18.92, Off-Street Parking with the attached condition of approval number 19. The original application required six off-street parking spaces for 2,700 square feet of general office (2,700 sq. ft. /450 = 6 spaces). The off-street parking requirement is satisfied by providing five spaces on site and with one off-street parking credit available for the two spaces on the Glenn St. property frontage. The revised proposal, which is the approved submittal, increased the building square footage by approximately three percent or 89 square feet. As a result, the off-street parking requirement is increased from six to seven spaces (2,789 sq. ft./450 = 6.20). In addition, the applicant revised the second floor to have the flexibility to be used as office spaces, two residential units, or a combination of the two. Here P A 2006-02354 N. Main St. & Glenn St. Page 4 again, the off-street parking requirement is slightly over six spaces increasing the required number of off-street spaces to seven. The Council finds that the building square footage and combination of uses on the second floor can be revised so that the required number of off-street spaces does not exceed the six spaces provided without a significant effect to the site or building design. This is addressed with the attached condition of approval number 19. Two bicycle parking spaces are required, and the site plan shows the two covered bicycle parking spaces located under the exterior stairs in the front of the building. The City Council finds that the public utilities and transportation system have adequate capacity to serve the development. Public facilities and utilities are in place to service the project in the N. Main St. and Glenn St. rights-of-way. Water, sewer and storm drain services are' available in Glenn St. N. Main St. and Glenn St. provide access to the site. N. Main St. is a state highway under the jurisdiction of the Oregon Department of Transportation (ODOT). N. Main St. is classified as a Boulevard (arterial) and Glenn St. is classified as a Neighborhood Street. Sidewalks are in place on the N. Main St. frontage and a portion of the Glenn St. frontage. The applicant will install a sidewalk on the Glenn St. property frontage connecting the existing sidewalk to the east of the property on Glenn St. to the existing sidewalk on N. Main St. The bicycle facilities are a shared lane on both streets. Bus service is provided on N. Main St. The City Council finds and determines that the project is in compliance with the Basic Site Review Standards for Commercial Development, Detail Site Review Standards and Historic District Design Standards. The project lies within the Detail Site Review Zone and the Skidmore Academy Historic District. The proposal meets the Basic Site Review Standards for Commercial Development. The primary orientation of the building is to North Main Street using a recessed entry feature. The front entrance is accessed by the public sidewalk as required. Parking is located behind the building as required. The proposal will result in 22% of landscaping on site which exceeds the 15 percent minimum for the E-1 zoning district. The parking area includes 19.4 percent of the area in landscaping which exceeds the minimum requirement of seven percent of the total parking area in landscaping. Additionally, one tree is required for each seven parking spaces to provide a canopy effect. Two trees are proposed on the north end of the parking area and the application states that the existing walnut in the southeast corner will also shade the parking area. Two street trees are proposed behind the sidewalk on the N. Main St. and three trees are proposed behind the sidewalk on Glenn St. The Council finds and determines that the proposed building satisfies the Detail Site Review requirements. The recessed entry is generously sized, and accented with structural steel columns. The front (west) wall ground floor includes 44 percent in glazing and the Glenn St. (north) wall includes 37 percent in glazing which exceeds a minimum of 20 percent of the wall are is required to be in display areas, windows and doorways. The front entrance to the building is emphasized by the entry alcove and awning. The Detail Site Review Standards prohibit bright or neon paint colors on the building exterior. The applicant provided exterior building materials and colors including Moss Green stucco for the second floor, Mountain Brown polished-face CMU block for the ground floor, Charcoal Black split-faced CMU block for the base and Vintage III (dark grey) Zincalume Roofing. The Council finds and determines that the proposed building meets the Historic District Design Standards. At an average height of 28.5 feet to the ridge of the roof, the proposed building is a similar height to the one and a half and two-story structures surrounding the subject property. The building is broken into two modules which creates a residential scale and reduces the mass. On the Glenn St. side of the building, the ground floor store front exterior treatment is wrapped around the corner of the building. In addition, an awning system has been added to the ground floor windows on the sides and rear of the building. The awnings and change in materials on the Glenn St. elevation serve to provide relief in the massing. The mass of the rear of the building is broken up the recess in the middle of the building. The proposed fa~ade line is in the same plane as the facades of buildings in the vicinity, (See further discussion under variance criteria incorporated herein by this reference. The assertion by opponents that the Council is obligated to define the historic fac;ade line as consisting only of buildings in existence for more than 45 years is expressly rejected. The Code does not define the line by in reference to any specific map or date is expressly rejected. The streetscape in this block includes a mix of buildings considered both historic and non-historic, all of which have a mix of setbacks. As such, the historic far;ade line in this streetscape is ill defined. The Council finds that the fac;ade line encompassing all structures in this streetscape meets the intent of the site design standards by avoiding violation of the existing setback pattern. The Council identified the positive recommendation of the Historic Commission as one of the factors tending to support this interpretation. Similarly, the PA 2006-02354 N. Main St. & Glenn St. Page 5 attempt to define the fac;ade line solely by reference to building immediately adjacent to the subject property is expressly rejected. The reliance upon an interpretation of the word "adjacent" in other parts of the Code, in prior findings, is not binding in this section which requires a broader analysis. The Council incorporates the findings in the May 1, 2007 Council Communication authored by the Planning Director in support of this finding. The steep pitched gable roofs match the surrounding historic buildings. The windows have a vertical orientation which is compatible with the fac;ade patterns of surrounding historic structures. The base of the building is differentiated by using a different material with a different color (Le. split-faced block in Charcoal Black). The two street facing volumes directed towards N. Main St. match the orientation to N. Main St. of buildings in the area. The ground floor front doors are located in a generously-sized entry alcove which is connected to a plaza and walkway area to the public sidewalk on N. Main St. Finally, the proposed building design is a contemporary interpretation with different materials and architectural details. As required, the bl!lilding is clearly not imitating the style of an older period. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. 5) Criteria: [ALUO 18.88.090] The criteria for an Exception to the Street Standards are as follows: A. There is demonstrable difficulty in meeting the specific requirements of this chapter due to a unique or unusual aspect of the site or proposed use .of the site. B. The variance will result in equal or superior transportation facilities and connectivity; C. The variance is the minimum necessary to alleviate the difficulty; and D. The variance is consistent with the stated Purpose and Intent of the Performance Standards Options Chapter. The City Council finds and determines that the proposed development meets the approval criteria for an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage. There is demonstrable difficulty in meeting the specific requirements of this chapter due to the combination of several physical characteristics of the site and existing sidewalk system on Glenn St. - the length of the property frontage on Glenn St., the location of the driveway and the existing curbside sidewalk on Glenn St. adjacent to the property to the east. The unique or unusual aspects of the site, discussed below under variances, are incorporating herein by this reference. A curbside sidewalk is in place on the south side of Glenn St. from the eastern boundary of the subject property to Orange St. Additionally, a curbside sidewalk is in place on N. Main St. and the corner of N. Main St. and Glenn St. The opportunity for a parkrow on the Glenn St. frontage is limited to approximately 50 feet in length between the wheelchair ramp at the corner and the proposed driveway apron near the eastern property line. A transition from a curbside sidewalk to a sidewalk with a parkrow uses approximately ten lineal feet. One transition would need to be installed from the corner and another transition to the curbside before the driveway. The driveway is required to be in this location because the Site Design and Use Standards require the parking to be located behind the building. After the transitions to and from the curbside sidewalk would be installed, there would be a relatively short length of parkrow installed on the Glenn St. property frontage. The Exception to the Street Standards to allow a curbside sidewalk will result in a sidewalk that provides the equivalent pedestrian facility connection as would a sidewalk with a parkrow. The curb side sidewalk will provide a more direct route from the corner of N. Main St. and Glenn St. to the existing curb sidewalk adjacent to the property. The Exception to the Street Standards to allow a curbside sidewalk is the minimum variance to alleviate the difficulty by maintaining a sidewalk connection on the Glenn St. property frontage. The Exception to the Street Standards to allow a curbside sidewalk is consistent with the Purpose and Intent of the Performance Standards Options Chapter 18.88 in that the chapter "is to allow an option for more flexible design that is permissible under the conventional zoning codes." Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. P A 2006-02354 N. Main St. & Glenn St. Page 6 6) Criteria: [ALUO 18.100.020] The criteria for a Variance are as follows: A. That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. . B. That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. c. That the circumstances or conditions have not been willfully or purposely self-imposed. The City Council finds and determines that the proposed development meets the approval criteria for a Variance to reduce the special.setback requirement for front yards for properties abutting an arterial street from twenty to ten feet. The Special Setback requirement (18.68.050) is as follows: To permit or afford better light, air and vision on more heavily traveled streets and on streets of substandard width, to protect arterial streets, and to permit the eventual widening of hereinafter named streets, every yard abutting a street, or portion thereof, shall be measured from the special base line setbacks listed below instead of the lot line separating the lot from the street. · Street Setback: East Main Street, between City limits and Lithia Way 35 feet · Ashland Street (Highway 66) between City limits and Siskiyou Boulevard 65 feet · Also, front yards for properties abutting all arterial streets shall be no less than twenty (20) feet, with the exception of the C-1-D district. · That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. The unique or unusual circumstances which apply to the site are the surrounding historic development pattern, the corner lot location, the bend in N. Main St., the configuration of the lot, (specifically the shallow depth) and access to the site. The proposed variance to permit a ten-foot setback from N. Main St. matches the fac;ade line in the vicinity. The average distance to the historic front fac;ade lines in this area is approximately ten feet. The subject property is a highly visible location on one of the main gateways in the City and the prominence is accentuated by the location on a corner lot and the bend in N. Main St. From the perspective of traveling south on N. Main St., the side of the building facing Glenn S1. will be visible. The site has a short lot depth for a commercially zoned piece of property. There are commercial and employment zoned properties throughout Ashlarld (e.g. A St., Clear Creek Dr. and Russell Dr.) that allow similar mixed-use types of development, and these areas have been configured with adequate depth and area to accommodate parking on site. Additionally, alley systems and shared driveway systems are in place in these same commercial and employment zoned developments that provide vehicle access and back-up areas outside of the individual lots and building envelopes. There is 50 feet available between the back of the building .and the rear (east) property line. The building footprint can not be moved closer to the back (east) property line because the parking area and landscape buffer are at the minimum dimensions. The parking is required to be behind or to the side of the building. Finally, the safest access to the site is from Glenn St. Glenn St. has lower traffic volumes and better visibility than N. Main St. · That the circumstances or conditions have not been willfully or purposely self-imposed. In January 2007, LUBA stated: In Krishchenko I, we found inexplicable the city's apparent conclusion that petitioner's desire to partition the subject property is a "self-created" hardship. We observed that, "[ilf the mere desire to develop property at a density allowed under applicable zoning laws is a self-created hardship, then it is doubtful that any variance to development standards could ever be allowed under... or similar variance standards" P A 2006-02354 N. Main St. & Glenn St. Page 7 In response Krischenko I, the City of Canby identified "a specific action by petitioner, [that created the hardship] not merely a general desire to develop property that all variance applicant's presumably share." LUBA stated: The City apparently understands a "self-created" hardship to exist for purposes of CMC ... when the applicant for a variance has taken an action in the past that is inconsistent with proposed development of the property that requires a variance. We cannot say that that view of CMC ... is inconsistent with the text, purpose or policy underlying that code provision, .... ... the city concluded, petitioner's choice in 2002 to consolidate the two lots to enlarge his existing backyard was inconsistent with, and had the effect of abandoning any expectation under common law or the city's variance procedures to obtain future access... Similarly, the City Council finds and determines that the ALUO variance criteria require that the circumstances or conditions causing the hardship be willfully or purposely self-imposed. The mere general desire to develop the property that all applicants share, is not sufficient for willful self-imposition. An affirmative action by the applicant, (like the lot consolidation in Krishchenko) which occurred in the past, (i.e. past tense) which is inconsistent with or creates the circumstances or conditions is required. In this case, the unusual characteristics of the site, being the surrounding historic development pattern, the corner location, the bend in N. Main St., the configuration of the lot (shallow depth) and access to the site have not been created by an affirmative action of the applicant. Therefore, the circumstances contributing to the request for a variance are not self-imposed. In addition, the ALUO variance criteria are more permissive than traditional, (i.e. variance purposes reference "practical difficulties") as opposed to strict variance terms such as "necessary for the preservation of property rights." The City Council expressly disagrees with the interpretation of the variance criterion proffered by opponents as it relateS to self-imposed hardships. The Council finds and determines a hardship is not self imposed merely because there may be an alternative way to build a development without the specific variance requested. In this case, the alternative plan would require an administrative variance to address compliance with historic standards. There is no requirement in Chapter 18.100, Variances, to pursue the lesser of competing variances, (e.g. a standard requiring the minimum variance necessary such as that used in the Administrative Variance to the Site Design and Use Standards, ALUO 18.72.0890.0, and Exception to the Street Standards, ALUO 18.88.090). The "minimum variance necessary" is simply not an approval standard. Similarly, the applicant's stated resignation to the fact that he could develop an alternative, less desirable plan, and therefore, does "not need this variance", for example, for the preservation of a property right, is not an approval criterion applicable to the decision. Neither the enthusiasm (or lack thereof) of the applicant nor the personal desires of the applicant to maximize use of the property in terms of density and intensity are approval criterion for a variance. Clearly, in this case, the difference in square footage (intensity) between the plans is inconsequential. This case is not so crude a choice between compliance with historic standards or compliance with the special setback; the Council strives to give meaning to each and every provision of the Code, reconciling conflicts between competing provisions when necessary. The City Council finds and determines that the hardship is not self created in this case. The Council further finds that when compliance with all the provisions of the City's Development Code creates essentially a no-win situation, the applicant has not created the hardship. See Sommer v. Josephine County (No self-created hardship when lot line adjustment approval condition required rezoning and new zoning district setback precluded proposed development necessitating variance). The City Council, like the City Planning Commission made an informed decision between variance alternatives based upon the peculiarities of the site and superior design. · That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. The positive benefits of the proposal are maintaining the historic fayade line, streetscape and street enclosure of N. Main St. The Historic District Design Standards require historic fayade lines of streetscapes to be maintained by locating front walls of new buildings in the same plane as the facades of adjacent buildings. The front fayade line is an important component in creating a historic development pattern and historic streetscape. If the proposed building is setback 20 feet from the front property line, the building will be set back further from the street than the existing historic front fayade line on P A 2006-02354 N. Main St. & Glenn St. Page 8 N. Main St. in the vicinity. As a result, the proposed building setback 20 feet from N. Main St. will stand out from the historic fa~ade line and will not be compatible with the historic development pattern. Another positive benefit of the proposed building location at ten feet from the front property line is maintaining the streetscape and street enclosure of N. Main St. The proposed building setback at the required 20-foot special setback for front yards abutting arterials is too far from the sidewalk to provide pedestrians visual interest from the front of the building or a sense of safety from moving vehicles. The streets that pedestrians find most comfortable and safe feeling are those where buildings front directly on or near the street. In contrast, when buildings are set farther from the street pedestrians tend to feel isolated and unprotected. Additionally, the building setback at 20 feet will be further back from the street than most of the front facades on the east side of N. Main St. in the vicinity thereby making the street more open in this location. The building front fa~ade should maintain the historic fa~ade line because vertical surfaces such as building fronts close to the street encourage drivers to slow down. To discount the benefits of the variance, opponents of the variance argue that the historic fa~ade line is better maintained without the variance; this argument is based on excluding construction any more recent than 45 years old. As noted above, the Council rejects this interpretation. Concerns were also raised that approval of the front yard variance may prevent the installation of bicycle lanes on N. Main St. at a future date. County and city maps provide general information about the N. Main St. corridor. Based on county assessor's maps, city aerial maps and the Ashland Street Standards, there appears to be adequate space between the proposed building and the building on the opposite side of the street at 493 N. Main St. for a future reconstruction of N. Main St. as a four-lane Boulevard including parkrows and bicycle lanes. Accordingly, this cannot be identified as a negative impact. Additionally, the street corridor is partially located in the Skidmore Academy Historic District (i.e. from the downtown to Maple St.). The Skidmore Academy Historic District is on the National Historic Register, and the associated federal regulations could affect street widening projects in listed historic neighborhoods. The 20-foot setback intrudes into some of the building footprints on both sides of N. Main St. A street widening project could potentially impact the character of the historic district by reducing front yards and removing historic buildings, and thereby altering the historic development pattern . Accordingly, the benefits of the proposed variance will far outweigh any negative impacts on development of adjacent uses. Finally, the intent and purpose of the variance Chapter includes avoiding practical difficulties caused by strict application of the requirements of the Code. No use is allowed not in conformity with the Comprehensive Plan or Code for the subject property. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. V. QUALIFICATIONS OF MEMBERS Alleged Bias and Prejudgment Two parties submitted written bias and prejudgement challenges to the qualifications of Council members and the Mayor. The speaker request provides that such challenges must be made in writing with supporting documentation. One challenge to Councilors Hartzell and Navickas was submitted by citizen Mike Morris, with supporting evidence, a DVD of the City Council's special meeting to consider the appeal. The other challenge was submitted by citizen Art Bullock against the Mayor and Councilor Kate Jackson and included 17 points against the Mayor and 2 against Councilor Jackson. ChallenQes bv Mr. Bullock: Mr. Bullock's submittal identifies the following legal standard in his written submittal: PA 2006-02354 N. Main St. & Glenn St. Page 9 Oregon Supreme Court: "The public interest in appearance of propriety over public interest in efficiency is so great in judicial proceedings that readjudication is required regardless of whether decisions were fair when appearance of impropriety is present" 1000 Friends of Oregon v. Wasco County Court, 304 Or. 76, 742 P.2d 39 1987. The Council finds and determines that the standard identified by Mr. Bullock, the appearance of impropriety, is erroneous. This is a quasi-judicial decision, not a judicial decision. In a quasi-judicial decision, a local decision maker must follow the procedures applicable to the matter before it in a manner that does not prejudice the substantial rights' of the parties. The substantial rights of the parties include 'the rights to an adequate opportunity to prepare and submit their case and a full and fair hearing.' Muller v. Polk County, 16 Or LUBA 771, 775 (1988). An allegation of decision maker bias, accompanied by evidence of that bias, may be the basis for a remand under ORS 197.835(9)(a)(B). Halvorson Mason Corp. v. City of Depoe Bay, 39 Or LUBA 702,710 (2001) Bias as discussed herein includes both prejudgment and personal bias. In Oreqon Entertainment COff). V. City of Beaverton. 38 Or LUBA 440,445 (2000), affd 172 Or ADD 361, 19 P3d 918 (2001 ), LUBA set out the standard for establishing decision maker bias: "To demonstrate actual bias, 'petitioner has the burden of showing the decision maker was biased, or prejudged the application, and did not reach a decision by applying relevant standards based on the evidence and argument presented [during the quasi-judicial proceedings].''' (quoting Spierina V. Yamhill County, 25 Or LUBA 695,702 (1993)). In addition, this burden is significant. That is: In order to succeed in a bias claim, petitioner must establish that the decision maker was incapable of making a decision based on the evidence and arguments of the parties. Sparks V. City of Bandon, 30 Or LUBA 69, 74 (1995). Further, bias must be demonstrated in a clear and unmistakable manner. Schneider V. Umatilla County, 13 Or LUBA 281. 284 (1985). See also Loveioy V. City of Depoe Bay. 17 Or LUBA 51,66 (1988). LUBA recently reviewed the impartiality expectations of quasi-judicial decision makers: As we have explained on many occasions, local quasi-judicial decision makers, who frequently are also elected officials, are not expected to be entirely free of any bias. Friends of Jacksonville V. City of Jacksonville, 42 Or LUBA 137, 141-44, affd 183 Or App 581,54 P3d 636 (2002); Halvorson-Mason Corp. v. City of Depoe Bay, 39 Or LUBA 702, 710 (2001); Oregon Entertainment Corp. V. City of Beaverton, 38 Or LUBA 440, 445-47 (2000), aff'd 172 Or App 361, 19 P3d 918 (2001). To the contrary, local officials frequently are elected or appointed in part because they favor or oppose certain types of development. 1000 Friends of Oregon v. Wasco Co. Court, 304 Or 76, 82-83, 742 P2d 39 (1987); Eastgate Theatre v. Bd. of County Comm'rs, 37 Or App 745, 750-52, 588 P2d 640 (1978). Local decision makers are only expected to (1) put whatever bias they may have to the side when deciding individual permit applications and (2) engage in the necessary fact finding and attempt to interpret and apply the law to the facts as they find them so that the ultimate decision is a reflection of their view of the facts and law rather than a product of any positive or negative bias the decision maker may bring to the process. Wal-Mart Stores, Inc. V. City of Central Point, 49 Or LUBA 697, 709-10 (2005), appeal pending. Heiller V. Josephine County (LUBA 2005) Procedurally, after the enumerated bias challenges by Mr. Bullock were summarized, the Mayor and Council Jackson both made and/or agreed to the following statement of impartiality: "I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will make this decision based solely on the application of the relevant criteria and standards to the facts and evidence in the record of this proceeding." Other members of the Council were asked if they accepted the statement and all members did in fact accept the impartiality of the Mayor and Councilor Jackson. No member requested removal based on ALUO Section 18.108.1 OO(B). The Council finds and determines that the Mayor and Councilor Jackson are capable of making this decision and did PA 2006-02354 N. Main St. & Glenn St. Page 10 make their decision based upon the application of the facts in the record as applied to the relevant standards in the Code. Any bias, if any exists at all, that the Mayor or Councilor Jackson may have had was placed to the side while the Mayor and Council performed the duties of their office as related to this quasi-judicial decision. Roberts v. Clatsop County (While alleged statements may indicate a certain predisposition, that is not enough to provide a basis for reversal or remand, in light of his assertions that decision maker would consider the application on its merits and vote with an open mind.) The Council finds and determines that Mr. Bullock has not demonstrated bias or prejudgement on the part of the Mayor of Councilor Jackson in a clear and unmistakable manner. The allegations were not individually addressed at the hearing but the Mayor and Councilor Jackson both stated the allegations were false and misleading. Several other members of the Council noted the allegations were completely irrelevant and inappropriate to the proceedings. For the most part, the allegations submitted by Mr. Bullock are unsupported with reliable verifiable evidence, although certainly verifiable evidence in the form of City video or audio recordings, findings and minutes could have been submitted, it was not provided. For example: (1) Mr. Bullock asserts personal attacks against him during the hearing on the Schofield/Monte Vista LID. Mr. Bullock makes factual assertions and characterizations (e.g. "viciously attacked") in his challenge, but no record of the Schofield LID proceeding, a public meeting, was submitted. No official minutes or other official record was submitted. (2) Similarly, Mr. Bullock alleges that his bias challenge in the same proceeding was arbitrarily limited to three minutes, yet no evidence no support this allegation was submitted. (3) Mr. Bullock also alleges in the same hearing that he was denied a right to speak on the merits. Again, no evidence was submitted. (4) Again, Mr. Bullock alleges he was denied a right to make oral presentations of bias and denied his right to speak. No evidence supports this allegation. (5) Mr. Bullock attributes certain statements to the mayor, including public pressure to stop him from speaking and "shut him up". No verifiable evidence supports this allegation. (6) Again without verifiable evidence, Mr. Bullock asserts another personal attack b}' the Mayor after the close of the record in the Schofield LID project, and further (7) asserts he had no right to rebut the statements of the mayor made during deliberations in that proceeding. (8) Mr. Bullock alleged denial of an opportunity to make oral Conflict of Interest challenges from the floor during the Hellman Bath hearing before the City Council in 2006. No evidence to verify this allegation was submitted, despite the existence of written findings, minutes and DVD records of the unappealed decision. (9) Mr. Bullock alleges the Council and not the mayor has the authority to control his conduct at meetings in making oral challenges from the floor. (Despite the Council's adoption of Roberts Rules of Order and the clear authority of the Presiding Officer to control the conduct of non-members) (10) Mr. Bullock again asserts the Mayor denied his right to orally make a conflict of interest challenge in the Helman Baths project. (11) Mr. Bullock identifies an alleged error in the Helman Bath project related to his alleged right to point out alleged errors from the floor. (12) Mr. Bullock alleges inter alia the mayor conspired to violate the 120 day rule in the Park Street Condo case and blame him for the delay which led to the mandamus proceeding. These allegations are completely unsupported. (13) Mr. Bullock alleges he reported misconduct by City employees in 2004 and was subjected to verbal assaults. His allegations are unsupported by verifiable evidence. (14) Mr. Bullock alleges the Mayor prevented him from presenting audio-visual matters in a 2006 meeting. This allegation is not supported with verifiable evidenced. (15) Mr. Bullock asserts failure of the Mayor to supervise the Public Works Director. The allegation is irrelevant and unsubstantiated. (16) Mr. Bullock alleges the Mayor is responsible for opposition to Mr. Bullock's position on the proposed Charter amendment. This allegation is unsubstantiated. As regards Councilor Jackson, Mr. Bullock makes several allegations, without verifiable supporting evidence, that Councilor Jackson (1) yelled at him during an encounter while Mr. Bullock was campaigning against the proposed Charter amendment, a measure Councilor Jackson supported. Councilor Jackson acknowledged that they had contact and that she was concerned for her safety given Mr. Bullock's behavior. Mr. Bullock also alleges that Councilor Jackson is incapable of making the decision because she ignores the law and has prejudged this matter because she will ignore the 20 foot setback which is the subject of the variance. This allegation is unsubstantiated. Mr. Bullock was merely a participant in the proceedings below, and is not the applicant or appellant in this proceeding. His position in his challenge appears to be that because the Mayor and Councilor Jackson have taken or have political positions which are contrary to his positions, they should be disqualified from participation in any matter in which he chooses to participate. In the case of the Mayor, Mr. Bullock's disagreement appears to be primarily in the area of the proper manner for the conduct of quasi-judicial proceedings. The Council finds and determines that the Mayor and Councilor Jackson are expected to have political positions as elected public officers. That their positions may at times be contrary to political positions taken by Mr. Bullock, a citizen of the City of Ashland and that this fact does not demonstrate P A 2006-02354 N. Main St. & Glenn St. Page I I in a clear and unmistakable manner an inability on the part of these elected officials to apply the facts to the law in a quasi- judicial matter before the City Council. The Councilor and Mayor declared their intent to apply the law to the evidence in the record and performed their duty. As regards the conduct of public meetings, the Mayor, as presiding officer, has clear authority to control the conduct of non-members. Nonmembers who disrupt public meeting may be removed pursuant to Roberts Rules of Order or Criminal statutes. Mr. Bullock is not a member of the governing body, and must comply with the directions of the presiding officer. That Mr. Bullock feels he should have more opportunity to participate in quasi-judicial proceedings, specifically to orally making challenges to members or "points of order" from the floor, or question members of the Council, is not personal bias against Mr. Bullock but simply the normal conduct of a public meeting by the Presiding Officer. Mr. Bullock, as a non-member, cannot assert bias and prejudice based on denial of the rights and powers to him of rights afforded duly elected members of the Council. The Council finds and determines that this challenge to the qualifications of Councilor Jackson and Mayor Morrison is not well founded. It is unfortunate that at times prejudicial or inflammatory material is introduced into the record of land use proceedings and other government proceedings. Quasi-judicial decision makers, being human may be tempted to react to such material or base the decision on improper matters. Accordingly, It is important that decision makers exercise discipline and set aside such inflammatory or prejudicial matters and exercise their quasi-judicial duties properly. This can be especially difficult to volunteer Council members in public service, when as in the challenge submitted by Mr. Bullock, is in the manner of a personal attack. Accordingly, the Council expressly finds and determines that although Mr. Bullocks written materials are inflammatory and prejudicial, the Council expressly rejects such improper considerations in applying the facts in the record to the applicable standards in the ALUO. ChallenQes bv Mr. Morris: A prejudgment challenge was made against Councilor's Eric Navickas and Councilor Cate Hartzell by Mike Morris. Procedurally, after the challenges were summarized, both Councilor Navickas and Hartzell made and/or agreed to the following statement of impartiality: "I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will make this decision based solely on the application of the relevant criteria and standards to the facts and evidence in the record of this proceeding." Other members of the Council were asked if they accepted the statement and all members did in fact accept the impartiality of the Councilors. No member requested removal based on ALUO Section 18.108.1 OO(B). The Council finds and determines that Councilor Hartzell and Councilor Navickas are capable of making this decision and did make their decision based upon the application of the facts in the record as applied to the relevant standards in the Code. Any bias, if any exists at all, that the Councilors may have had was placed to the side while the Councilors performed the duties of their office as related to this quasi-judicial decision. Roberts v. Clatsop County (While alleged statements may indicate a certain predisposition, that is not enough to provide a basis for reversal or remand, in light of his assertions that decision maker would consider the application on its merits and vote with an open mind.) The Council finds and determines that Mr. Morris has not demonstrated bias or prejudgement on the part of the Councilors in a clear and unmistakable manner, in light of the assertions of impartiality made by the members at the hearing. While the allegations were not individually addressed at the hearing, both Councilors specifically stated the they would make the decision based on the applicable law and the evidence before them. For the most part, the concise allegations of prejudgement submitted by Mr. Morris are well supported with reliable verifiable evidence, that being the DVD of the City Council's public meeting to appeal the decision of the Planning Commission. Mr. Morris identifies verifiable statements by time code made by Councilor Hartzell which indicate a pre- disposition based on public safety concerns to maintain the twenty foot special setback. Similarly, Mr. Morris identifies verifiable statements by time code made by Councilor Navickas which indicate a preference for the twenty foot setback over historic standards, an issue in the variance portion of the appeal. On the basis of the verifiable statements made at the public meeting to call up the appeal, the allegations of prejudgment on their face, without more, are substantial. However, in the context of the actual appeal hearing, and the direct question to the Councilors of whether the Councilors would set aside whatever predisposition or bias they had, and make the decision based upon the facts as applied to the P A 2006-02354 N. Main St. & Glenn St. Page 12 law, the Council finds and determines that the challenged members are qualified to make the decision and have properly exercised their duties in quasi-judicial proceedings as required by law. VI. FINAL ORDER In sum, the City Council concludes that the proposal represented in Planning Action 2006-02354, an application for Site Review approval to an office building, an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage, and a Variance to reduce the special setback requirement for front yards for properties abutting arterial streets has satisfied all relative substantive standards and criteria and is supported by evidence in the whole record. Accordingly, based on the above Findings of Fact and Conclusions of Law, the incorporated findings of the Planning Commission and the findings provided by the applicant, and based upon the evidence in the whole record, the City Council hereby APPROVES Planning Action #2006-02354, subject to strict compliance with the conditions of approval, set forth herein. . Further, if anyone or more of the conditions below are found to be invalid, for any reason whatsoever, then Planning Action #2006-02354 is denied. The following are the conditions and they are attached to the approval: 1) That all proposals of the applicant are conditions of approval unless otherwise modified here. 2) That the applicant shall submit an electric distribution plan including load calculations and locations of all primary and secondary services including transformers, cabinets and all other necessary equipment. This plan shall be reviewed and approved by the Ashland Electric Department prior to building permit submittal, and the approved plan submitted with the building permit application. Additionally, the placement of any portion of the structure in the public utility easement shall be reviewed and approved by the Electric Department. Transformers and cabinets shall be located in areas least visible from streets and outside of vision clearance areas, while considering the access needs of the Electric Department. 3) That the engineered construction drawings for the public sidewalk improvement shall comply with approved plans, and submitted for review and approval of the Ashland Planning and Engineering Divisions prior to issuance of a building or excavation permit. The concrete color and surface finish shall be the city standard in accordance with the Ashland Engineering Specifications. Additionally, evidence of approval of the Oregon Department of Transportation for any work in the jurisdiction of the state shall be submitted with the engineered construction drawings. 4) That the required pedestrian-scaled streetlight shall consist of the City of Ashland's commercial/historic streetlight standard, and shall be included in the utility plan and engineered construction drawings for the public sidewalk along Ashland Street. That the property owner shall install public pedestrian-scaled street lights to City specifications on the N. Main St. and Glenn St. street frontages. 5) That a final utility plan for the project shall be reviewed and approved by the Engineering Division and Building Divisions prior to issuance of a building permit. The utility plan shall include the location of connections to all public facilities in and adjacent to the development, including the locations of water lines and meter sizes, sewer mains and services, manholes and clean-outs, storm drainage pipes and catch basins. 6) That if a fire protection vault is required, the vault shall not be located in the sidewalk. 7) That all public improvements including but not limited to the sidewalk, street trees and street lighting shall be installed in accordance with the approved plan prior to issuance of the certificate of occupancy. 8) That the plans submitted for the building permit shall be in substantial conformance with those approved as part of this application. If the plans submitted for the building permit are not in substantial conformance with those approved as part of this application, an application to modify this Site Review approval shall be PA 2006-02354 N. Main St. & Glenn St. Page 13 submitted and approved prior to issuance of a building permit. 9) That a Tree Protection Plan in accordance with the requirements of 18.61.200 shall be submitted for review and approval of the Staff Advisor with the building permit submittals. The Tree Protection Plan shall include an analysis from the project landscape architect or certified arborist of the impact of the installation of the pervious paving on the walnut tree to be preserved. 10) That the recommendations of the Ashland Tree Commission with final approval of the Staff Advisor shall be addressed prior to the issuance of a building permit. The recommendations shall be included on a revised tree protection plan, landscaping plan and final irrigation plan at the time of submission of building permit. Landscaping and the irrigation system shall be installed in accordance with the approved plans prior to issuance of the certificate of occupancy. 11) That a Verification Permit shall be applied for and approved by the Ashland Planning Division prior to site work, building demolition, and/or storage of materials. The Verification Permit is to inspect the installation of tree protection fencing for the walnut tree in the southeast corner of the property. The tree protection shall be chain link fencing six feet tall and installed in accordance with 18.61.200.B. 12) That public utility easements on the property shall be shown on the building permit submittals. No portion of the structure shall intrude into a public utility easement without approval by the Ashland Engineering Division. 13) That the finished floor elevation (FFE) of the building shall be at a minimum, the same elevation as the public sidewalk in front of the building in the N. Main St. right-of-way. Verification of the FFE being at or above the elevation of the public sidewalk shall be submitted with the building permit for review and approval by the Staff Advisor. 14) That mechanical equipment shall be screened from view from N. Main St. Location and screening of mechanical equipment shall be detailed on the building permit submittals. 15) That the windows shall not be heavily tinted so as to prevent views from outside of the building into the interior of the building. 16) That the building materials and the exterior colors shall be identified in the building permit submittals. Bright or neon paint colors used extensively to attract attention to the building or use are prohibited in accordance with the Detail Site Review Standards. 17) That exterior lighting shall be shown on the building permit submittals and appropriately shrouded so there is no direct illumination of surrounding properties. 18) That a comprehensive sign program in accordance with the requirements of Chapter 18.96 shall be developed for the building and submitted for review and approval with the building permit submittals. That a sign permit shall be obtained prior to installation of new signage. Sign age shall meet the requirements of Chapter 18.96. 19) That the building size and number of residential units shall be revised so that the total number of required off-street parking spaces does not exceed the six spaces provided (i.e. five on-site spaces and one on- street parking credit). 20) That the recommendations of the Historic Commission with final approval of the Staff Advisor shall be incorporated into the building permit submittals. 21) That the requirements of the Ashland Fire Department including fire apparatus access and fire hydrant PA 2006-02354 N. Main St. & Glenn St. Page 14 flow requirements shall be satisfied prior to issuance of a certificate of occupancy. 22) That the new structure shall meet Solar Setback B in accordance with Chapter 18.70 of the Ashland Land Use Ordinance. Solar setback calculations shall be submitted with the building permit and include the required setback with the formula calculations, an elevation or cross-section clearly identifying the height of the solar producing point from natural grade and the solar setback in site plan view called out from the solar producing point to the north property line. 23) That a seven foot bicycle and pedestrian easement shall be granted to the City of Ashland along North Main that will allow the city, or designee, to construct, reconstruct, install, use, operate, inspect, repair, maintain, remove and replace access improvements, including but not limited to street, sidewalk, bike path and landscaping improvements. (The Applicant agreed to this condition) Ashland City Council Approval Date: Mayor John W. Morrison Signature authorized and approved by the full Council this _ day of June, 2007 Approved as to form: Date: Ashland Interim City Attorney PA 2006-02354 N. Main St. & Glenn St. Page 15 BEFORE THE CITY COUNCIL CITY OF ASHLAND, JACKSON COUNTY, OREGON June 5, 2007 xyV ~ "^ r- ~ v\t .. 'Iv) {')()"\' \ \~I,. V\ ,\'7 \~9 ~ \' u~~\1' ~ .~ (y'l In the Matter of an Appeal of Planning Action 2006-02354, a Request for Site Review Approval to Construct a Two-story Applicant: Raymond J. Kistler, Architecture. I. NATURE OF PROCEEDINGS This matter comes before the City Council for the City of Ashland for a de novo appeal hearing. The appeal is from a March 13,2007 decision of the City of Ashland Planning Commission approving inter alia a request for a site review approval, exception to street standards and variance to the special setback on the subject property located at the intersection of N. Main Street ad Glenn Street. After a mandatory pre-application conference was held, the subject applications for site review approval, street exceptions and a variance were filed by the applicant with the Planning Department on December 8, 2006. The application was deemed incomplete. Additional materials were submitted by the applicant and the application was deemed complete on January 2, 2007. Notification of the public hearing before the Planning Commission on January 9,2007, was mailed, pursuant to Chapter 18, Ashland Land Use Ordinance to area property owners and affected public agencies. Notice of the January 9,2007, hearing was also published in the Ashland Daily Tidings. On January 9,2007, the Planning Commission conducted a public hearing and considered the oral and written testimony presented, the staff report and the record as a whole. The application was continued to the Planning Commission meeting on February 13, 2007. On February 13, 2007, after the close of the public hearing and process and the close of the record, the City's Planning Commission deliberated and approved the application, subject to conditions pertaining to appropriate development of the Property. On March 13,2007, the Findings, Conclusions, and Orders of City's Planning Commission were duly signed by the Chairperson of City's Planning Commission. The Planning Commission's findings are attached hereto as Exhibit uA" and are specifically incorporated herein and made a part hereof by this reference. (In the event of conflict between the Planning Commission findings and Council findings, Council findings control). An effort was made to request of the Planning Commission Chair pursuant to Planning Commission rules to bring forth a motion for reconsideration but the Chair declined, citing no new material facts. On March 20, 2007, and on March 23,2007, the Ashland City Council met at duly noticed public meetings and discussed calling up the Planning Commission's March 13, 2007 decision. FOllowing discussion, by a vote of 3-1, the Council voted to call up the appeal. As stated by the City Attorney, the reason for the appeal would be to provide guidance to the Planning Commission on balancing between the special setback standards and the historic standards as they relate to the variance criteria. The Council finds and determines that this alone is the basis for the Council initiated appeal. Prior to the discussion, Councilors disclosed ex parte communications and made affirmative statements of impartiality. P A 2006-02354 N. Main St. & Glenn St. Page I Notification of the de novo public hearing before the City Council was mailed, pursuant to ALUO to area property owners and affected public agencies. Notice of the appeal hearing was also published in the Ashland Daily Tidings. On May 1, 2007, the City Council conducted a public hearing in the City Council chambers; during the public hearing before the Council, testimony and exhibits were offered and received, in addition to the exhibits and documents reflected in the record before Council. Pursuant to a request from a citizen the record was left open for seven days and the matter was continued to May 9, 2007. After the conclusion of testimony at the continued hearing, the hearing was closed and the record was closed. The applicant waived the right to submit final written argument. The Council deliberated and approved the application in file 2006-02354, with conditions, upholding the decision of the Planning Commission. The Council's action generally upheld the Findings, Conclusions, and Orders of the Planning Commission, with some modifications as set forth below. Based upon the evidence in the record, the Council makes the following findings of fact and conclusions of law: II. FINDINGS OF FACT 1) The Nature of Proceedings set forth above are true and correct and are incorporated herein by this reference. 2) The subject of Planning Action # 2006-02354 is real property located within the City of Ashland ("City"), and described in the County Tax Assessor's maps as Tax lot 3600 of 39-1 E-05DA is located at the southern corner of the intersection of N. Main St. and Glenn St. 3) The zoning of the Property is E-1 (Employment). 4) The applicant in Planning Action # 2006-02354 is: Raymond J. Kistler, Architecture, ("Applicant). III. JURISDICTION The May 1, 2007 Council Communication quotes the following ALUO procedural requirement: Appeal Proceedings (18.108.110): A. Appeals of Type I decisions for which a hearing has been held, of Type II decisions or of Type III decisions described in section 18.108.060.A.1 and 2 shall be initiated by a notice of appeal filed with the City Administrator. The standard Appeal Fee shall be required as part of the notice. Failure to pay the Appeal Fee at the time the appeal is filed is a jurisdictional defect. 1. The appeal shall be filed prior to the effective date of the decision of the Commission. 2. The notice shall include the appellant's name, address, a reference to the decision sought to be reviewed, a statement as to how the appellant qualifies as a party, the date of the decision being appealed, and the specific grounds for which the decision should be reversed or modified, based on the applicable criteria or procedural irregularity. 3. The notice of appeal, together with notice of the date, time and place of the hearing on the appeal by the Council shall be mailed to the parties at least 20 days prior to the hearing. 4. The appeal shall be a de novo evidentiary hearing. 5. The Council may affirm, reverse or modify the decision and may approve or deny the request, or grant approval with conditions. The Council shall make findings and conclusions, and make a decision based on the record before it as justification for its action. The Council shall cause copies of a final order to be sent to all parties participating in the appeal. P A 2006-02354 N. Main St. & Glenn St. Page 2 B. Appeals may only be filed by parties to the planning action. "Parties" shall be defined as the following: 1. The applicant. 2. Persons who participated in the public hearing, either orally or in writing. Failure to participate in the public hearing, either orally or in writing, precludes the right of appeal to the Council. 3. The Council, by majority vote. 4. Persons who were entitled to receive notice of the action but did not receive notice due to error. In addition to the appeal provisions provided above, ALUO 18.108.070 (5) provides: The City Council may "call up" any planning action for a public hearing and decision upon motion and majority vote, provided such vote takes place in the required time period, as outlined below. No appeal was filed by the applicant or by any other person who participated in the public hearing within the appeal period. The only basis for Council consideration of this action is the Council's own majority vote on March 23, 2007 to appeal the matter. The Council action on March 23, 2007 was as follows: Councilor Hartzell/Navickas m/s that Council appeal PA #2006-02354 for a hearing. DISCUSSION: Councilor Hardesty voiced support for calling this forward. Councilor Chapman shared his concern that they are getting dangerously close to prejudging this. Councilors Hartzell and Navickas clarified their general concerns are not with this specific proposal. Roll Call Vote: Councilors Hardesty, Navickas and Hartzell, YES. Councilor Chapman, NO. Motion passed 3-1. The record of this proceeding reflects no notice of appeal filed with the City Administrator within the appeal period nor does the record reflect filing of the standard appeal fee (or transfer of funds) during this period. Unless excused, this failure to strictly follow the local appeal requirements is a jurisdictional defect. Siuslaw Rod and Gun Club v. City of Florence. {Where a local filing requirement is "jurisdictional," we stated, neither LUBA nor the local government may disregard that requirement.) 48 Or LUBA 163.171-72 (2004) Brievoael v. Washinaton County. 24 Or LUBA 63.68. affd 117 Or ADD 195. 843 P2d 982 (1992) McKay Creek Valley Assoc. v. Washinaton County. 16 Or LUBA 690.693 (1988). Type I, II and III decisions identified in ALUO 18.108.070 (2)-(4) all provide that appeals shall be "as provided in section 18.108.110A" The action approved by the Planning Commission includes Type II decisions and is subject to 18.108.110A. Specifically ALUO 18.108.070(3) provides: The decision of the Commission is the final decision of the City resulting from the Type II Planning Procedure, effective 15 days after the findings adopted by the Commission, unless appealed to the Council as provided in section 18.108.11 O.A. (emphasis added). While ALUO 18.108.070 (5) references the Council's ability to "call up" a decision. the City Council finds and determines that this provision is not an independent source of appeal authority which excuses the Council from strict compliance with the jurisdictional appeal requirements of 18.108.11 OA. The Planning Commission decision is the final decision of the City unless appealed to the Council "as provided in section 18. 108. 11 O.A ". The Council knows how to clearly excuse itself from requirements in the Code and chose not to expressly do so in 18.108.11 OA. The provisions of ALUO 18.108.070 (5) merely add requirements for Council initiated appeals (majority vote within the appeal period). The language used in the motion to call up the matter was that of "appeal... for a hearing." Finding no authority in the code to excuse compliance with 18.108.11 OA , the Council finds and determines that the Council did not properly follow its own ordinance in appealing the Planning Commission decision. Accordingly, the Council has no jurisdiction over the appeal. The jurisdictional requirements for local appeals not having been met, the Planning Commission decision stands as the final decision of the City. P A 2006-02354 N. Main St. & Glenn St. Page 3 In furtherance and support of this determination, the Council also independently "withdraws" its own "appeal" of Planning Action # 2006-02354. The Council was the only party to "appeal" the decision. The Code does not prohibit withdrawal of an appeal by an appellant prior to final decision and the Council is the only appellant. The Council's decision to withdrawal the appeal is counseled by the fact that four of seven members of the decision making body were challenged for bias and prejudgment. Had such challenges been successful, the Council could not act on the appeal. The Council finds and determines that the challenged members are in fact qualified to make the decision and adopts the bias and prejudgment findings set forth below and incorporates them herein by this reference. However, to avoid wasteful LUBA appeal and further prejudicial challenges and attacks, the Council voluntarily withdraws its own appeal. When an appeal is withdrawn, the Council loses jurisdiction over the matter and no provision of the Code compels any other result. Accordingly, based on the finding set forth herein concerning lack of jurisdiction based on ALUO 18.108.11 OA. and the voluntary withdrawal of the appeal by the only appellant, the appeal is dismissed. In the event, the Council is found to have jurisdiction, and the withdrawal of the appeal is found not to be effective, the Council sets forth all its findings below, inclusive of bias and prejudgment challenges. IV. FINDINGS APPLYING APPLICABLE CODE CRITERIA 1) The Council finds and determines that the relevant approval criteria are found in or referenced in the following provisions of the Ashland Land Use Ordinances. · The criteria for Site Review approval in 18.72.070 are as follows: A. All applicable City ordinances have been met or will be met by the proposed development. B. All requirements of the Site Review Chapter have been met or will be met. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options. · The criteria for an Exception to the Street Standards are described in 18.88.090 as follows: A. There is demonstrable difficulty in meeting the specific requirements of this chapter due to a unique or unusual aspect of the site or proposed use of the site. B. The variance will result in equal or superior transportation facilities and connectivity; C. The variance is the minimum necessary to alleviate the difficulty; and D. The variance is consistent with the stated Purpose and Intent of the Performance Standards Options Chapter. · The criteria for a Variance in 18.100.020 are as follows: A. That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. B. That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. C. That the circumstances or conditions have not been willfully or purposely self-imposed. 2) The 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, and the whole record. 3) The Council finds and determines that this request for a Site Review approval to construct a two-story building, the request for an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage and the request for a variance to reduce the special setback requirement for front yards for properties abutting arterial streets from twenty to ten feet, meets all applicable criteria for approval described or referenced in the ALUO sections above. This finding PA 2006-02354 N. Main St. & Glenn St. Page 4 is supported by the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, attached hereto and specifically incorporated herein by this reference, the detailed findings submitted by the applicant specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record. 4) Criteria: [ALUO 18.72.070] The criteria for Site Review approval are as follows: A. All applicable City ordinances have been met or will be met by the proposed development. B. All requirements of the Site Review Chapter have been met or will be met. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options The City Council finds and determines that the proposed development meets the approval criteria for Site Review approval. An office is a permitted use in the Employment (E-1) zoning district. The E-1 zoning district requires at least 65 percent of the gross floor area of the ground floor to be used for permitted or special permitted uses. In this case, all of the ground floor building square footage is designated as office use which is a permitted use in the E-1 zone. The site is located in the R-Overlay which allows residential units as a special permitted use. Residential units are permitted at 15 units per acre. The residential density of the site is two units (.136Ac x 15 = 2.04 units). The proposal is to use the second story for office spaces, two residential units, or a combination of office space and a residential unit. The E-1 zoning district does not require standard setbacks from property lines unless a parcel abuts a residential zoning district. The subject parcel abuts a residential district at the rear (east) of the site. A ten foot per story setback is required for a rear yard abutting a residential district. The proposed building is 50 feet from the rear (east) property line, and therefore exceeds the required 20-foot setback requirement for the two-story building. The building is angled at the northwest corner of the lot adjacent to the intersection of N. Main St. and Glenn St. so that the structure is located outside of the vision clearance area as required. The proposed building height is approximately 26 feet which is under the maximum building height of 40 feet in the E-1 zoning district. The proposal will result in 22% of landscaping on site which exceeds the 15 percent minimum for the E-1 zoning district. The City Council finds and determines that the proposed development meets the off-street automobile parking requirements of Chapter 18.92, Off-Street Parking with the attached condition of approval number 19. The original application required six off-street parking spaces for 2,700 square feet of general office (2,700 sq. ft. /450 = 6 spaces). The off-street parking requirement is satisfied by providing five spaces on site and with one off-street parking credit available for the two spaces on the Glenn St. property frontage. The revised proposal, which is the approved submittal, increased the building square footage by approximately three percent or 89 square feet. As a result, the off-street parking requirement is increased from six to seven spaces (2,789 sq. ft./450 = 6.20). In addition, the applicant revised the second floor to have the flexibility to be used as office spaces, two residential units, or a combination of the two. Here again, the off-street parking requirement is slightly over six spaces increasing the required number of off-street spaces to seven. The Council finds that the building square footage and combination of uses on the second floor can be revised so that the required number of off-street spaces does not exceed the six spaces provided without a significant effect to the site or building design. This is addressed with the attached condition of approval number 19. Two bicycle parking spaces are required, and the site plan shows the two covered bicycle parking spaces located under the exterior stairs in the front of the building. The City Council finds that the public utilities and transportation system have adequate capacity to serve the development. Public facilities and utilities are in place to service the project in the N. Main St. and Glenn St. rights-of-way. Water, sewer and storm drain services are available in Glenn St. N. Main St. and Glenn St. provide access to the site. N. Main St. is a state highway under the jurisdiction of the Oregon Department of Transportation (ODOT). N. Main St. is classified as a Boulevard (arterial) and Glenn St. is classified as a Neighborhood Street. Sidewalks are in place on the N. Main St. frontage and a portion of the Glenn St. frontage. The applicant will install a sidewalk on the Glenn St. property frontage P A 2006-02354 N. Main St. & Glenn St. Page 5 connecting the existing sidewalk to the east of the property on Glenn St. to the existing sidewalk on N. Main St. The bicycle facilities are a shared lane on both streets. Bus service is provided on N. Main St. The City Council finds and determines that the project is in compliance with the Basic Site Review Standards for Commercial Development, Detail Site Review Standards and Historic District Design Standards. The project lies within the Detail Site Review Zone and the Skidmore Academy Historic District. The proposal meets the Basic Site Review Standards for Commercial Development. The primary orientation of the building is to North Main Street using a recessed entry feature. The front entrance is accessed by the public sidewalk as required. Parking is located behind the building as required. The proposal will result in 22% of landscaping on site which exceeds the 15 percent minimum for the E-1 zoning district. The parking area includes 19.4 percent of the area in landscaping which exceeds the minimum requirement of seven percent of the total parking area in landscaping. Additionally, one tree is required for each seven parking spaces to provide a canopy effect. Two trees are proposed on the north end of the parkIng area and the application states that the existing walnut in the southeast corner will also shade the parking area. Two street trees are proposed behind the sidewalk on the N. Main St. and three trees are proposed behind the sidewalk on Glenn St. The Council finds and determines that the proposed building satisfies the Detail Site Review requirements. The recessed entry is generously sized, and accented with structural steel columns. The front (west) wall ground floor includes 44 percent in glazing and the Glenn St. (north) wall includes 37 percent in glazing which exceeds a minimum of 20 percent of the wall are 'is required to be in display areas, windows and doorways. The front entrance to the building is emphasized by the entry alcove and awning. The Detail Site Review Standards prohibit bright or neon paint colors on the building exterior. The applicant provided exterior building materials and colors including Moss Green stucco for the second floor, Mountain Brown polished-face CMU block for the ground floor, Charcoal Black split-faced CMU block for the base and Vintage III (dark grey) Zincalume Roofing. The Council finds and determines that the proposed building meets the Historic District Design Standards. At an average height of 28.5 feet to the ridge of the roof, the proposed building is a similar height to the one and a half and two-story structures surrounding the subject property. The building is broken into two modules which creates a residential scale and reduces the mass. On the Glenn St. side of the building, the ground floor store front exterior treatment is wrapped around the corner of the building. In addition, an awning system has been added to the ground floor windows on the sides and rear of the building. The awnings and change in materials on the Glenn St. elevation serve to provide relief in the massing. The mass of the rear of the building is broken up the recess in the middle of the building. The proposed fa<;ade line is in the same plane as the facades of buildings in the vicinity, (See further discussion under variance criteria incorporated herein by this reference. The assertion by opponents that the Council is obligated to define the historic fa<;ade line as consisting only of buildings in existence for more than 45 years is expressly rejected. The Code does not define the line by in reference to any specific map or date is expressly rejected. The streetscape in this block includes a mix of buildings considered both historic and non-historic, all of which have a mix of setbacks. As such, the historic fa<;ade line in this streetscape is ill defined. The Council finds that the fa<;ade line encompassing all structures in this streetscape meets the intent of the site design standards by avoiding violation of the existing setback pattern. The Council identified the positive recommendation of the Historic Commission as one of the factors tending to support this interpretation. Similarly, the attempt to define the fa<;ade line solely by reference to building immediately adjacent to the subject property is expressly rejected. The reliance upon an interpretation of the word "adjacent" in other parts of the Code, in prior findings, is not binding in this section which requires a broader analysis. The Council incorporates the findings in the May 1, 2007 Council Communication authored by the Planning Director in support of this finding. The steep pitched gable roofs match the surrounding historic buildings. The windows have a vertical orientation which is compatible with the fa<;ade patterns of surrounding historic structures. The base of the building is differentiated by using a different material with a different color (Le. split-faced block in Charcoal Black). The two street facing volumes directed towards N. Main St. match the orientation to N. Main St. of buildings in the area. The ground floor front doors are located in a generously-sized entry alcove which is connected to a plaza and walkway area to the public sidewalk on N. Main St. Finally, the proposed building design is a contemporary interpretation with different materials and architectural details. As required, the building is clearly not imitating the style of an older period. P A 2006-02354 N. Main St. & Glenn St. Page 6 Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. 5) Criteria: [ALUO 18.88.090] The criteria for an Exception to the Street Standards are as follows: A. There is demonstrable difficulty in meeting the specific requirements of this chapter due to a unique or unusual aspect of the site or proposed use of the site. B. The variance will result in equal or superior transportation facilities and connectivity; C. The variance is the minimum necessary to alleviate the difficulty; and D. The variance is consistent with the stated Purpose and Intent of the Performance Standards Options Chapter. The City Council finds and determines that the proposed development meets the approval criteria for an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage. There is demonstrable difficulty in meeting the specific requirements of this chapter due to the combination of several physical characteristics of the site and existing sidewalk system on Glenn St. - the length of the property frontage on Glenn St., the location of the driveway and the existing curbside sidewalk on Glenn St. adjacent to the property to the east. The unique or unusual aspects of the site, discussed below under variances, are incorporating herein by this reference. A curbside sidewalk is in place on the south side of Glenn St. from the eastern boundary of the subject property to Orange St. Additionally, a curbside sidewalk is in place on N. Main St. and the corner of N. Main St. and Glenn St. The opportunity for a parkrow on the Glenn St. frontage is limited to approximately 50 feet in length between the wheelchair ramp at the corner and the proposed driveway apron near the eastern property line. A transition from a curbside sidewalk to a sidewalk with a parkrow uses approximately ten lineal feet. One transition would need to be installed from the corner and another transition to the curbside before the driveway. The driveway is required to be in this location because the Site Design and Use Standards require the parking to be located behind the building. After the transitions to and from the curbside sidewalk would be installed, there would be a relatively short length of parkrow installed on the Glenn St. property frontage. The Exception to the Street Standards to allow a curbside sidewalk will result in a sidewalk that provides the equivalent pedestrian facility connection as would a sidewalk with a parkrow. The curb side sidewalk will provide a more direct route from the corner of N. Main St. and Glenn St. to the existing curb sidewalk adjacent to the property. The Exception to the Street Standards to allow a curbside sidewalk is the minimum variance to alleviate the difficulty by maintaining a sidewalk connection on the Glenn S1. property frontage. The Exception to the Street Standards to allow a curbside sidewalk is consistent with the Purpose and Intent of the Performance Standards Options Chapter 18.88 in that the chapter "is to allow an option for more flexible design that is permissible under the conventional zoning codes." Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. 6) Criteria: [ALUO 18.100.020] The criteria for a Variance are as follows: A. That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. B. That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. c. That the circumstances or conditions have not been willfully or purposely self-imposed. The City Council finds and determines that the proposed development meets the approval criteria for a Variance to reduce the special setback requirement for front yards for properties abutting an arterial street from twenty to ten feet. PA 2006-02354 N. Main St. & Glenn St. Page 7 The Special Setback requirement (18.68.050) is as follows: To permit or afford better light, air and vision on more heavily traveled streets and on streets of substandard width, to protect arterial streets, and to permit the eventual widening of hereinafter named streets, every yard abutting a street, or portion thereof, shall be measured from the special base line setbacks listed below instead of the lot line separating the lot from the street. · Street Setback: East Main Street, between City limits and Lithia Way 35 feet · Ashland Street (Highway 66) between City limits and Siskiyou Boulevard 65 feet · Also, front yards for properties abutting all arterial streets shall be no less than twenty (20) feet, with the exception of the C-1-D district. · That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. The unique or unusual circumstances which apply to the site are the surrounding historic development pattern, the corner lot location, the bend in N. Main St., the configuration of the lot, (specifically the shallow depth) and access to the site. The proposed variance to permit a ten-foot setback from N. Main St. matches the fa<;ade line in the vicinity. The average distance to the historic front fa<;ade lines in this area is approximately ten feet. The subject property is a highly visible location on one of the main gateways in the City and the prominence is accentuated by the location on a corner lot and the bend in N. Main St. From the perspective of traveling south on N. Main St., the side of the building facing Glenn St. will be visible. The site has a short lot depth for a commercially zoned piece of property. There are commercial and employment zoned properties throughout Ashland (e.g. A St., Clear Creek Dr. and Russell Dr.) that allow similar mixed-use types of development, and these areas have been configured with adequate depth and area to accommodate parking on site. Additionally, alley systems and shared driveway systems are in place in these same commercial and employment zoned developments that provide vehicle access and back-up areas outside of the individual lots and building envelopes. There is 50 feet available between the back of the building and the rear (east) property line. The building footprint can not be moved closer to the back (east) property line because the parking area and landscape buffer are at the minimum dimensions. The parking is required to be behind or to the side of the building. Finally, the safest access to the site is from Glenn St. Glenn St. has lower traffic volumes and better visibility than N. Main St. · That the circumstances or conditions have not been willfully or purposely self-imposed. In January 2007, LUBA stated: In Krishchenko I, we found inexplicable the city's apparent conclusion that petitioner's desire to partition the subject property is a "self-created" hardship. We observed that, "[i]f the mere desire to develop property at a density allowed under applicable zoning laws is a self-created hardship, then it is doubtful that any variance to development standards could ever be allowed under ... or similar variance standards" In response Krischenko I, the City of Canby identified "a specific action by petitioner, [that created the hardship] not merely a general desire to develop property that all variance applicant's presumably share." LUBA stated: The City apparently understands a "self-created" hardship to exist for purposes of CMC ... when the applicant for a variance has taken an action in the past that is inconsistent with proposed development of the property that requires a variance. We cannot say that that view of CMC ... is inconsistent with the text, purpose or policy underlying that code provision, .... ... the city concluded, petitioner's choice in 2002 to consolidate the two lots to enlarge his existing backyard was inconsistent with, and had the effect of abandoning any expectation under common law or the city's variance procedures to obtain future access... Similarly, the City Council finds and determines that the ALUO variance criteria require that the circumstances or P A 2006-02354 N. Main St. & Glenn St. Page 8 conditions causing the hardship be willfully or purposely self-imposed. The mere general desire to develop the property that all applicants share, is not sufficient for willful self-imposition. An affirmative action by the applicant, (like the lot consolidation in Krishchenko) which occurred in the past, (i.e. past tense) which is inconsistent with or creates the circumstances or conditions is required. In this case, the unusual characteristics of the site, being the surrounding historic development pattern, the corner location, the bend in N. Main St., the configuration of the lot (shallow depth) and access to the site have not been created by an affirmative action of the applicant. Therefore, the circumstances contributing to the request for a variance are not self-imposed. In addition, the ALUO variance criteria are more permissive than traditional, (i.e. variance purposes reference "practical difficulties") as opposed to strict variance terms such as "necessary for the preservation of property rights." The City Council expressly disagrees with the interpretation of the variance criterion proffered by opponents as it relates to self-imposed hardships. The Council finds and determines a hardship is not self imposed merely because there may be an alternative way to build a development without the specific variance requested. In this case, the alternative plan would require an administrative variance to address compliance with historic standards. There is no requirement in Chapter 18.100, Variances, to pursue the lesser of competing variances, (e.g. a standard requiring the minimum variance necessary such as that used in the Administrative Variance to the Site Design and Use Standards, ALUO 18.72.0890.D, and Exception to the Street Standards, ALUO 18.88.090). The "minimum variance necessary" is simply not an approval standard. Similarly, the applicant's stated resignation to the fact that he could develop an alternative, less desirable plan, and therefore, does "not need this variance", for example, for the preservation of a property right, is not an approval criterion applicable to the decision. Neither the enthusiasm (or lack thereof) of the applicant nor the personal desires of the applicant to maximize use of the property in terms of density and intensity are approval criterion for a variance. Clearly, in this case, the difference in square footage (intensity) between the plans is inconsequential. This case is not so crude a choice between compliance with historic standards or compliance with the special setback; the Council strives to give meaning to each and every provision of the Code, reconciling conflicts between competing provisions when necessary. The City Council finds and determines that the hardship is not self created in this case. The Council further finds that when compliance with all the provisions of the City's Development Code creates essentially a no-win situation, the applicant has not created the hardship. See Sommer v. Josephine County (No self-created hardship when lot line adjustment approval condition required rezoning and new zoning district setback precluded proposed development necessitating variance). The City Council, like the City Planning Commission made an informed decision between variance alternatives based upon the peculiarities of the site and superior design. · That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. The positive benefits of the proposal are maintaining the historic fa<;ade line, streetscape and street enclosure of N. Main St. The Historic District Design Standards require historic fa<;ade lines of streetscapes to be maintained by locating front walls of new buildings in the same plane as the facades of adjacent buildings. The front fa<;ade line is an important component in creating a historic development pattern and historic streetscape. If the proposed building is setback 20 feet from the front property line, the building will be set back further from the street than the existing historic front fa<;ade line on N. Main St. in the vicinity. As a result, the proposed building setback 20 feet from N. Main St. will stand out from the historic fa<;ade line and will not be compatible with the historic development pattern. Another positive benefit of the proposed building location at ten feet from the front property line is maintaining the streetscape and street enclosure of N. Main St. The proposed building setback at the required 20-foot special setback for front yards abutting arterials is too far from the sidewalk to provide pedestrians visual interest from the front of the building or a sense of safety from moving vehicles. The streets that pedestrians find most comfortable and safe feeling are those where buildings front directly on or near the street. In contrast, when buildings are set farther from the street pedestrians tend to feel isolated and unprotected. Additionally, the building setback at 20 feet will be further back from the street than most of the front facades on the east side of N. Main St. in the vicinity thereby making the street more open in this location. The building front fa<;ade should maintain the historic fa<;ade line because vertical surfaces such as building fronts close to the street encourage drivers to slow down. P A 2006-02354 N. Main St. & Glenn St. Page 9 To discount the benefits of the variance, opponents of the variance argue that the historic fac;;ade line is better maintained without the variance; this argument is based on excluding construction any more recent than 45 years old. As noted above, the Council rejects this interpretation. Concerns were also raised that approval of the front yard variance may prevent the installation of bicycle lanes on N. Main St. at a future date. County and city maps provide general information about the N. Main St. corridor. Based on county assessor's maps, city aerial maps and the Ashland Street Standards, there appears to be adequate space between the proposed building and the building on the opposite side of the street at 493 N. Main St. for a future reconstruction of N. Main St. as a four-lane Boulevard including parkrows and bicycle lanes. Accordingly, this cannot be identified as a negative impact. Additionally, the street corridor is partially located in the Skidmore Academy Historic District (i.e. from the downtown to Maple St.). The Skidmore Academy Historic District is on the National Historic Register, and the associated federal regulations could affect street widening projects in listed historic neighborhoods. The 20-foot setback intrudes into some of the building footprints on both sides of N. Main St. A street widening project could potentially impact the character of the historic district by reducing front yards and removing historic buildings, and thereby altering the historic development pattern . Accordingly, the benefits of the proposed variance will far outweigh any negative impacts on development of adjacent uses. Finally, the intent and purpose of the variance Chapter includes avoiding practical difficulties caused by strict application of the requirements of the Code. No use is allowed not in conformity with the Comprehensive Plan or Code for the subject property. . Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. V. QUALIFICATIONS OF MEMBERS Alleged Bias and Prejudgment Two parties submitted written bias and prejudgement challenges to the qualifications of Council members and the Mayor. The speaker request provides that such challenges must be made in writing with supporting documentation. One challenge to Councilors Hartzell and Navickas was submitted by citizen Mike Morris, with supporting evidence, a DVD of the City Council's special meeting to consider the appeal. The other challenge was submitted by citizen Art Bullock against the Mayor and Councilor Kate Jackson and included 17 points against the Mayor and 2 against Councilor Jackson. Challenqes bv Mr. Bullock: Mr. Bullock's submittal identifies the following legal standard in his written submittal: Oregon Supreme Court: "The public interest in appearance of propriety over public interest in efficiency is so great in judicial proceedings that readjudication is required regardless of whether decisions were fair when appearance of impropriety is present" 1000 Friends of Oregon v. Wasco County Court, 304 Or. 76, 742 P.2d 39 1987. The Council finds and determines that the standard identified by Mr. Bullock, the appearance of impropriety, is erroneous. This is a quasi-judicial decision, not a judicial decision. In a quasi-judicial decision, a local decision maker must follow the procedures applicable to the matter before it in a manner that does not prejudice the substantial rights' of the parties. The substantial rights of the parties include 'the rights to an adequate opportunity to prepare and submit their case and a full and fair hearing.' Muller v. Polk County. 16 Or LUBA 771.775 (1988). An allegation of decision maker bias, accompanied bv evidence of that bias, may be the basis for a remand under ORS 197.835(9)(a)(B). Halvorson Mason Corp. v. City of Depoe Bay, 39 Or LUBA 702,710 (2001) Bias as discussed herein includes both prejudgment and personal bias. P A 2006-02354 N. Main St. & Glenn St. Page] 0 In Oreaon Entertainment Com. v. City of Beaverton. 38 Or LUBA 440. 445 (2000). aff'd 172 Or App 361. 19 P3d 918 (2001 ). LUBA set out the standard for establishing decision maker bias: "To demonstrate actual bias, 'petitioner has the burden of showing the decision maker was biased, or prejudged the application, and did not reach a decision by applying relevant standards based on the evidence and argument presented [during the quasi-judicial proceedings].''' (quoting Spierina v. Yamhill County. 25 Or LUBA 695.702 (1993)). In addition, this burden is significant. That is: In order to succeed in a bias claim, petitioner must establish that the decision maker was incapable of making a decision based on the evidence and arguments of the parties. Sparks v. City of Bandon. 30 Or LUBA 69. 74 (1995). Further, bias must be demonstrated in a clear and unmistakable manner. Schneider v. Umatilla County. 13 Or LUBA 281. 284 (1985). See also Loveioy v. City of Depoe Bav. 17 Or LUBA 51.66 (1988). LUBA recently reviewed the impartiality expectations of quasi-judicial decision makers: As we have explained on many occasions, local quasi-judicial decision makers, who frequently are also elected officials, are not expected to be entirely free of any bias. Friends of Jacksonville v. City of Jacksonville, 42 Or LUBA 137, 141-44, aff'd 183 Or App 581,54 P3d 636 (2002); Halvorson-Mason Corp. v. City of Depoe Bay, 39 Or LUBA 702, 710 (2001); Oregon Entertainment Corp. v. City of Beaverton, 38 Or LUBA 440, 445-47 (2000), atrd 172 Or App 361, 19 P3d 918 (2001). To the contrary, local officials frequently are elected or appointed in part because they favor or oppose certain types of development. 1000 Friends of Oregon v. Wasco Co. Court, 304 Or 76,82-83, 742 P2d 39 (1987); Eastgate Theatre v. Bd. of County Comm'rs, 37 Or App 745, 750-52,588 P2d 640 (1978). Local decision makers are only expected to (1) put whatever bias they may have to the side when deciding individual permit applications and (2) engage in the necessary fact finding and attempt to interpret and apply the law to the facts as they find them so that the ultimate decision is a reflection of their view of the facts and law rather than a product of any positive or negative bias the decision maker may bring to the process. Wal-Mart Stores, Inc. v. City of Central Point, 49 Or LUBA 697, 709-10 (2005), appeal pending. Heiller v. Josephine County (LUBA 2005) Procedurally, after the enumerated bias challenges by Mr. Bullock were summarized, the Mayor and Council Jackson both made and/or agreed to the following statement of impartiality: "I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will make this decision based solely on the application of the relevant criteria and standards to the facts and evidence in the record of this proceeding." Other members of the Council were asked if they accepted the statement and all members did in fact accept the impartiality of the Mayor and Councilor Jackson. No ~ember requested removal based on ALUO Section 18.108.1 OO(B). The Council finds and determines that the Mayor and Councilor Jackson are capable of making this decision and did make their decision based upon the application of the facts in the record as applied to the relevant standards in the Code. Any bias, if any exists at all, that the Mayor or Councilor Jackson may have had was placed to the side while the Mayor and Council performed the duties of their office as related to this quasi-judicial decision. Roberts v. Clatsop County (While alleged statements may indicate a certain predisposition, that is not enough to provide a basis for reversal or remand, in light of his assertions that decision maker would consider the application on its merits and vote with an open mind.) The Council finds and determines that Mr. Bullock has not demonstrated bias or prejudgement on the part of the Mayor of Councilor Jackson in a clear and unmistakable manner. The allegations were not individually addressed at the hearing but the Mayor and Councilor Jackson both stated the allegations were false and misleading. Several other members of the Council noted the allegations were completely irrelevant and inappropriate to the proceedings. For the most part, the allegations submitted by Mr. Bullock are unsupported with reliable verifiable evidence, although P A 2006-02354 N. Main St. & Glenn St. Page 11 certainly verifiable evidence in the form of City video or audio recordings, findings and minutes could have been submitted, it was not provided. For example: (1) Mr. Bullock asserts personal attacks against him during the hearing on the Schofield/Monte Vista LID. Mr. Bullock makes factual assertions and characterizations (e.g. "viciously attacked") in his challenge, but no record of the Schofield LID proceeding, a public meeting, was submitted. No official minutes or other official record was submitted. (2) Similarly, Mr. Bullock alleges that his bias challenge in the same proceeding was arbitrarily limited to three minutes, yet no evidence no support this allegation was submitted. (3) Mr. Bullock also alleges in the same hearing that he was denied a right to speak on the merits. Again, no evidence was submitted. (4) Again, Mr. Bullock alleges he was denied a right to make oral presentations of bias and denied his right to speak. No evidence supports this allegation. (5) Mr. Bullock attributes certain statements to the mayor, including public pressure to stop him from speaking and "shut him up". No verifiable evidence supports this allegation. (6) Again without verifiable evidence, Mr. Bullock asserts another personal attack by the Mayor after the close of the record in the Schofield LID project, and further (7) asserts he had no right to rebut the statements of the mayor made during deliberations in that proceeding. (8) Mr. Bullock alleged denial of an opportunity to make oral Conflict of Interest challenges from the floor during the Hellman Bath hearing before the City Council in 2006. No evidence to verify this allegation was submitted, despite the existence of written findings, minutes and DVD records of the unappealed decision. (9) Mr. Bullock alleges the Council and not the mayor has the authority to control his conduct at meetings in making oral challenges from the floor. (Despite the Council's adoption of Roberts Rules of Order and the clear authority of the Presiding Officer to control the conduct of non-members) (10) Mr. Bullock again asserts the Mayor denied his right to orally make a conflict of interest challenge in the Helman Baths project. (11) Mr. Bullock identifies an alleged error in the Helman Bath project related to his alleged right to point out alleged errors from the floor. (12) Mr. Bullock alleges inter alia the mayor conspired to violate the 120 day rule in the Park Street Condo case and blame him for the delay which led to themandamus proceeding. These allegations are completely unsupported. (13) Mr. Bullock alleges he reported misconduct by City employees in 2004 and was subjected to verbal assaults. His allegations are unsupported by verifiable evidence. (14) Mr. Bullock alleges the Mayor prevented him from presenting audio-visual matters in a 2006 meeting. This allegation is not supported with verifiable evidenced. (15) Mr. Bullock asserts failure of the Mayor to supervise the Public Works Director. The allegation is irrelevant and unsubstantiated. (16) Mr. Bullock alleges the Mayor is responsible for opposition to Mr. Bullock's position on the proposed Charter amendment. This allegation is unsubstantiated. As regards Councilor Jackson, Mr. Bullock makes several allegations, without verifiable supporting evidence, that Councilor Jackson (1) yelled at him during an encounter while Mr. Bullock was campaigning against the proposed Charter amendment, a measure Councilor Jackson supported. Councilor Jackson acknowledged that they had contact and that she was concerned for her safety given Mr. Bullock's behavior. Mr. Bullock also alleges that Councilor Jackson is incapable of making the decision because she ignores the law and has prejudged this matter because she will ignore the 20 foot setback which is the subject of the variance. This allegation is unsubstantiated. Mr. Bullock was merely a participant in the proceedings below, and is not the applicant or appellant in this proceeding. His position in his challenge appears to be that because the Mayor and Councilor Jackson have taken or have political positions which are contrary to his positions, they should be disqualified from participation in any matter in which he chooses to participate. In the case of the Mayor, Mr. Bullock's disagreement appears to be primarily in the area of the proper manner for the conduct of quasi-judicial proceedings. The Council finds and determines that the Mayor and Councilor Jackson are expected to have political positions as elected public officers. That their positions may at times be contrary to political positions taken by Mr. Bullock, a citizen of the City of Ashland and that this fact does not demonstrate in a clear and unmistakable manner an inability on the part of these elected officials to apply the facts to the law in a quasi- judicial matter before the City Council. The Councilor and Mayor declared their intent to apply the law to the evidence in the record and performed their duty. As regards the conduct of public meetings, the Mayor, as presiding officer, has clear authority to control the conduct of non-members. Nonmembers who disrupt public meeting may be removed pursuant to Roberts Rules of Order or Criminal statutes. Mr. Bullock is not a member of the governing body, and must comply with the directions of the presiding officer. That Mr. Bullock feels he should have more opportunity to participate in quasi-judicial proceedings, specifically to orally making challenges to members or "points of order" from the floor, or question members of the Council, is not personal bias against Mr. Bullock but simply the normal conduct of a public meeting by the Presiding Officer. Mr. Bullock, as a non-member, cannot assert bias and prejudice based on denial of the rights and powers to him of rights afforded duly elected members of the Council. The Council finds and determines that this challenge to the qualifications of Councilor Jackson and Mayor Morrison is not well founded. P A 2006-02354 N. Main 51. & Glenn 51. Page] 2 It is unfortunate that at times prejudicial or inflammatory material is introduced into the record of land use proceedings and other government proceedings. Quasi-judicial decision makers, being human may be tempted to react to such material or base the decision on improper matters. Accordingly, It is important that decision makers exercise discipline and set aside such inflammatory or prejudicial matters and exercise their quasi-judicial duties properly. This can be especially difficult to volunteer Council members in public service, when as in the challenge submitted by Mr. Bullock, is in the manner of a personal attack. Accordingly, the Council expressly finds and determines that although Mr. Bullocks written materials are inflammatory and prejudicial, the Council expressly rejects such improper considerations in applying the facts in the record to the applicable standards in the ALUO. ChallenQes bv Mr. Morris: A prejudgment challenge was made against Councilor's Eric Navickas and Councilor Cate Hartzell by Mike Morris. Procedurally, after the challenges were summarized, both Councilor Navickas and Hartzell made and/or agreed to the following statement of impartiality: "I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will make this decision based solely on the application of the relevant criteria and standards to the facts and evidence in the record of this proceeding." Other members of the Council were asked if they accepted the statement and all members did in fact accept the impartiality of the Councilors. No member requested removal based on ALUO Section 18.108.1 OO(B). The Council finds and determines that Councilor Hartzell and Councilor Navickas are capable of making this decision and did make their decision based upon the application of the facts in the record as applied to the relevant standards in the Code. Any bias, if any exists at all, that the Councilors may have had was placed to the side while the Councilors performed the duties of their office as related to this quasi-judicial decision. Roberts v. C/atsop County (While alleged statements may indicate a certain predisposition, that is not enough to provide a basis for reversal or remand, in light of his assertions that decision maker would consider the application on its merits and vote with an open mind.) The Council finds and determines that Mr. Morris has not demonstrated bias or prejudgement on the part of the Councilors in a clear and unmistakable manner, in light of the assertions of impartiality made by the members at the hearing. While the allegations were not individually addressed at the hearing, both Councilors specifically stated the they would make the decision based on the applicable law and the evidence before them. For the most part, the concise allegations of prejudgement submitted by Mr. Morris are well supported with reliable verifiable evidence, that being the DVD of the City Council's public meeting to appeal the decision of the Planning Commission. Mr. Morris identifies verifiable statements by time code made by Councilor Hartzell which indicate a pre- disposition based on public safety concerns to maintain the twenty foot special setback. Similarly, Mr. Morris identifies verifiable statements by time code made by Councilor Navickas which indicate a preference for the twenty foot setback over historic standards, an issue in the variance portion of the appeal. On the basis of the verifiable statements made at the public meeting to call up the appeal, the allegations of prejudgment on their face, without more, are substantial. However, in the context of the actual appeal hearing, and the direct question to the Councilors of whether the Councilors would set aside whatever predisposition or bias they had, and make the decision based upon the facts as applied to the law, the Council finds and determines that the challenged members are qualified to make the decision and have properly exercised their duties in quasi-judicial proceedings as required by law. VI. FINAL ORDER In sum, the City Council concludes that the proposal represented in Planning Action 2006-02354, an application for Site Review approval to an office building, an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage, and a Variance to reduce the special setback requirement for front yards for properties abutting arterial streets has satisfied all relative substantive standards and criteria and is supported by evidence in the whole record. Accordingly, based on the above Findings of Fact and Conclusions of Law, the incorporated findings of the Planning P A 2006-02354 N. Main St. & Glenn St. Page ] 3 Commission and the findings provided by the applicant, and based upon the evidence in the whole record, the City Council hereby APPROVES Planning Action #2006-02354, subject to strict compliance with the conditions of approval, set forth herein. Further, if anyone or more of the conditions below are found to be invalid, for any reason whatsoever, then Planning Action #2006-02354 is denied. The following are the conditions and they are attached to the approval: 1) That all proposals of the applicant are conditions of approval unless otherwise modified here. 2) That the applicant shall submit an electric distribution plan including load calculations and locations of all primary and secondary services including transformers, cabinets and all other necessary equipment. This plan shall be reviewed and approved by the Ashland Electric Department prior to building permit submittal, and the approved plan submitted with the building permit application. Additionally, the placement of any portion of the structure in the public utility easement shall be reviewed and approved by the Electric Department. Transformers and cabinets shall be located in areas least visible from streets and outside of vision clearance areas, while considering the access needs of the Electric Department. 3) That the engineered construction drawings for the public sidewalk improvement shall comply with approved plans, and submitted for review and approval of the Ashland Planning and Engineering Divisions prior to issuance of a building or excavation permit. The concrete color and surface finish shall be the city standard in accordance with the Ashland Engineering Specifications. Additionally, evidence of approval of the Oregon Department of Transportation for any work in the jurisdiction of the state shall be submitted with the engineered construction drawings. 4) That the required pedestrian-scaled streetlight shall consist of the City of Ashland's commercial/historic streetlight standard, and shall be included in the utility plan and engineered construction drawings for the public sidewalk along Ashland Street. That the property owner shall install public pedestrian-scaled street lights to City specifications on the N. Main St. and Glenn St. street frontages. 5) That a final utility plan for the project shall be reviewed and approved by the Engineering Division and Building Divisions prior to issuance of a building permit. The utility plan shall include the location of connections to all public facilities in and adjacent to the development, including the locations of water lines and meter sizes, sewer mains and services, manholes and clean-outs, storm drainage pipes and catch basins. 6) That if a fire p~otection vault is required, the vault shall not be located in the sidewalk. 7) That all public improvements including but not limited to the sidewalk, street trees and street lighting shall be installed in accordance with the approved plan prior to issuance of the certificate of occupancy. 8) That the plans submitted for the building permit shall be in substantial conformance with those approved as part of this application. If the plans submitted for the building permit are not in substantial conformance with those approved as part of this application, an application to modify this Site Review approval shall be submitted and approved prior to issuance of a building permit. 9) That a Tree Protection Plan in accordance with the requirements of 18.61.200 shall be submitted for review and approval of the Staff Advisor with the building permit submittals. The Tree Protection Plan shall include an analysis from the project landscape architect or certified arborist of the impact of the installation of the pervious paving on the walnut tree to be preserved. 10) That the recommendations of the Ashland Tree Commission with final approval of the Staff Advisor shall be addressed prior to the issuance of a building permit. The recommendations shall be included on a revised tree protection plan, landscaping plan and final irrigation plan at the time of submission of building permit. Landscaping and the irrigation system shall be installed in accordance with the approved plans prior to issuance of the certificate of occupancy. PA 2006-02354 N. Main St. & Glenn St. Page 14 11) That a Verification Permit shall be applied for and approved by the Ashland Planning Division prior to site work, building demolition, and/or storage of materials. The Verification Permit is to inspect the installation of tree protection fencing for the walnut tree in the southeast corner of the property. The tree protection shall be chain link fencing six feet tall and installed in accordance with 18.61'.200.B. 12) That public utility easements on the property shall be shown on the building permit submittals. No portion of the structure shall intrude into a public utility easement without approval by the Ashland Engineering Division. 13) That the finished floor elevation (FFE) of the building shall be at a minimum, the same elevation as the public sidewalk in front of the building in the N. Main St. right-of-way. Verification of the FFE being at or above the elevation of the public sidewalk shall be submitted with the building permit for review and approval by the Staff Advisor-. 14) That mechanical equipment shall be screened from view from N. Main St. Location and screening of mechanical equipment shall be detailed on the building permit submittals. 15) That the windows shall not be heavily tinted so as to prevent views from outside of the building into the interior of the building. 16) That the building materials and the exterior colors shall be identified in the building permit submittals. Bright or neon paint colors used extensively to attract attention to the building or use are prohibited in accordance with the Detail Site Review Standards. 17) That exterior lighting shall be shown on the building permit submittals and appropriately shrouded so there is no direct illumination of surrounding properties. 18) That a comprehensive sign program in accordance with the requirements of Chapter 18.96 shall be developed for the building and submitted for review and approval with the building permit submittals. That a sign permit shall be obtained prior to installation of new signage. Signage shall meet the requirements of Chapter 18.96. 19) That the building size and number of residential units shall be revised so that the total number of required off-street parking spaces does not exceed the six spaces provided (i.e. five on-site spaces and one on- street parking credit). 20) That the recommendations of the Historic Commission with final approval of the Staff Advisor shall be incorporated into the building permit submittals. 21) That the requirements of the Ashland Fire Department including fire apparatus access and fire hydrant flow requirements shall be satisfied prior to issuance of a certificate of occupancy. 22) That the new structure shall meet Solar Setback B in accordance with Chapter 18.70 of the Ashland Land Use Ordinance. Solar setback calculations shall be submitted with the building permit and include the required setback with the formula calculations, an elevation or cross-section clearly identifying the height of the solar producing point from natural grade and the solar setback in site plan view called out from the solar producing point to the north property line. 23) That a seven foot bicycle and pedestrian easement shall be granted to the City of Ashland along North Main that will allow the city, or designee, to construct, reconstruct, install, use, operate, inspect, repair, maintain, remove and replace access improvements, including but not limited to street, sidewalk, bike path and landscaping improvements. (The Applicant agreed to this condition) P A 2006-02354 N. Main St. & Glenn St. Page 15 Ashland City Council Approval Date: Mayor John W. Morrison Signature authorized and approved by the full Council this _ day of June, 2007 Approved as to form: Date: Ashland Interim City Attorney P A 2006-02354 N. Main St. & Glenn St. Page 16 ~UJA ROSEN'S SPEECB lli l'UbLIC FORUM, June 5, 2007 .. \, {Put out ~ign ~aying "~pecie~i~m."} La~t time, I intr6duded a word that you might not have known: speciesism. Like racism is a prejudice toward Domeone becauDe of their race, and DexiDm iD a prejudice against someone because of their sex, and ageism is a prejudice against someonQ because of their age, species ism io a prejudice against someone because of their species. I think specieaism is the basic reason people oppose the tethering ordinance. If these were humans chained up for much or all their lives at their own hoaes, the police would have already stepped in to rescue them from cruel abuoe. But even if there weren't a law, I believe you would have passed one. I probably would have only had to speak to you in one council meeting about it. But theae are animals who are being forced to live on chains. I ask the councilors who oppose the ordinance, what is it about animals that makes them unqualified for a tethering limit? What ability or quality are they lacking? Is it that they're not as intelligent as people are? What if a mentally disabled child, with an IQ even lower than a dog's, was tied up all day in the yard while his parents were at work? Surely you would think that cruel, and pass a law, if necessary, to rescue him? So I don't think you're excluding animals from protection because they're not as intelligent as people. Is it because they cna't talk like we do? As I said last time, animals have talked in our language using signs. Like animals, aome humans can't talk except by using sign language-they're mute. Yet if soaeone were tying up a mute person all day, the law, or you, would do something to atop it. Are you against this tethering limit for animsls because they have fur allover their bodieD instead of bare ~kin like UD? What if a per~on was born with a birth defect that made him grow fur allover his body? Would you say it should be legal to chain him up all day at his home? No. Scientists are putting human genes into pigs and other animals. This is hypothetical, but what if one day they create an animal who hao 20\ human genes? would you still want it to be legal for that animal to live on a chain? What if the animal had 49\ human gene~? What if the animal had mostly human genes--say, 80\? ~j point is, where would you draw the line between who we should allow to live on a chain, and who we shouldn't? It ~eems to me that animal~ are being excluded from a tethering limit purely on an arbitrary basis, not based on any solid reason except that they're not the ~ame ~pecie~ aD we are. Those of you councilors who still want it to be legal in Ashland to tie dogs and~ther domesticated mammals up for life, or for eight to ten l1\~1- '" hour;:, while conscience. :'Jpecis:Ji:Jm. Tban~ you-. their people are at work, l'a3k you tb examine your ~yourself if You're guilty of this prejudice called .-, ,I , "'; . ~i ' j i',: i ~ -,. ,:j ;; " . , rLtv\~ SJ QOoi') .1)~-'L\r ColA-VlQ.i Ion) M.~oVj 0A1y fkQrnini~ . C-t'\1j A-Horn~) (L{~ -pc)tC( ~ ~'hce+: . W €.-) v-Q- -to~ -ftv-Q. ~Q.s ~ ! 3 3ct: m 0 t.Q... .:e~~ l-e 0v'ft. Q~S \<' i 113 LfU · lli to~ is s-; 00"( ) ~ ~l Yl3 STr-oVI<(j_ Jw .QI1IVJ1-oJ i'a--Mily iY\e.W\.b~I<11. ~ ~ n: m L( ni iy _ ~ ~ ~ ~ ~ I f -tt\QJr\ te l ~. Tt'-~1 (lQ;yt ~ 16 rn'L LUll 0\1 r ) wfl te, a..r--fi <:..l-e-s ) 0 r b"fi tu he :3 -e-f % e ~, r-p- ~ &ovl'+ \^JLtp ~-mJ W{~ wriT? . ~ . ~~ ~tJ. fu ,so.-lJ f 119) ((:r ~ ~re Y/ifi- e v+ LJf-, ~ ~o l LLti 01;1 J . ~~ f~tf o{l ~ -pVO b (eiVL J ( e ~ ~ tAR ~ dbJ -rt!tl S to our () JJn. CUll -I :r::: -fed ~ ~ of- if&- j)((J b[QLr\, Uhttil ~ j) -tll a.V\f~ -talftr/<j lM.ern ben' "yt A-Jh/O-f\J7 wI:: ~~~ C>vt tA.,~, . ~-~ K\~~ lCj) ambuf-~ f\~ ~,~~~ eu.i- e-f- y&Ur +~1 "c3 II r1't t 1-.- Loo kj :t: ~ cf..*- ~ ~ cc/'J to ()! It-tVQ f\ a..~ ~S~{~ b~\( Ort \c~~s) <' r ' ~ K.ea..+ m k€." I . Dear Councilors and Mavor: y I'm concerned about the animals in Ashland who are tied up at their homes for excessive periods. They suffer loneliness, frustration and boredom. They also run the risk of strangling to death, getting abused by kids or adults, getting attacked by animals, o~ dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endur.. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering of dogs and other animals at their homes. By also help people. Chained bite eORle ~ often a bar-king r dogs are. , J 0.. c.uc;) ~dords, ScYt^- , I' ' 14-h~9 V DC ~'- CUtre,-,iS5 '10 ,~I, 5 c .::.--=' " '22;::,7> M~ Its ilu/.iv'tJ/ oR, MlI~.( <;l, <:.~~Z""'" ~.J;~-J. 97520, JI\/'rmft- tN p~ 11# ,- vi:::_ s; - / I II ,.j-- -rr.! (,e I -t./ A,. /1 l" ,. L.I .-' f~ " tt vl {; e3 " LA,C/f Icc/fa (1(t j'a 1Mi' r /o~~ h<Jl-rr(}tf' J. (~'\ ~~ ~ i I ) 1-/ 11. L - G:-- h.t; j ~o Lf 'f1 S -+ ..It - ,ti.{ i..-,{ of<- l/i62l\ '.0 .6v\L 10 (tf ~vu.h (:A- '7918-' 1- ~ y iJ " " 9l- . A~ t ~ ~~ " v ,/ C i? C K ) J C3 U G;Ii (( ~L jl, Ie?.. I J \t.k- II If 1/ I C I ~ '-tt'~'-~'A... . 0\ a-e~ . c~'> ben.- L0 / 0/2 ~ ") I d-- ~ j tL-l5 r3u< 0 ,6.12.. '7 7/} . 7'7J-r'c) - v-v'\ \A ~ S- M (tC'\.... l) /4'1 0, 4- 0"7 L ~ W{A-l~e ~ ( ? -l.{-v1- "he ~Lo ~(Cvl() a' _ If P'b.l}t:x. \37(:., Vh(iV~x. uR L1753C /110 ~d 10. k~d (V7() UtnJ.,/~~rJ /Jr. A/~ !a.~ I ( / Ii.*L .llVlJei-W 9: VN Ie- c;-{ r: tte.k((.{L-S I tJ1l qg-s ~z-- S/I-j /e"7 ~-L\-l)7 5/~/()1 "~'--\'OJ w' c /fr.<'{-, LI ~ tv: ie:.-;> ~ p 0 ~bY '?s6q A7~(CAkJ/OR 'if'; C o5~ 5AIl{) rJ~ C1UL r1.J) .I-k ~ +-f 75 1l..t'7 \) Vvbb ~\A~ t t),,\. ,~~L,\f\tJ! ~~/ C.11t!.~<- " Dear Councilors and Mayor: I'm concerned about the animals in Ashland who are tied UP at their homes for e:<cessive periods. They suffer loneliness. frustration and boredom. They also run the risk of stranqling to death, getting abused by kids or adults, getting attacked by animals, aT dying of heatstroke. . II'- '" Jackson County allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endure. Please pass a law to make this kind of animal abuse illegal. Please heavily r'estrict the tethering of dogs and other animals at their homes. also help people. Chained likely to bite eop.le "\ often a barking r dogs are. /'7. W. ' ;,Md n ))J 41/ /lzik~~ ~, A~J of:- 18& ~.. ~....S'JA (ovwf/ ';'f'17 ~, "" 'N ~ , ""'--~ ,i"f .4 IJP. ~'J. ,fi/ 011 cr1 5)1-107 MJQL't N ~~ ?JH f< o\. . II i fo tV c {1 t.....: ' 6-1.. ~\ ---- 3oh~ \"3~55 Qu!.... . <;:'~. Asl~lA'-. or ,.....0 (! VCl/lli i( L ~""l-e 11 Q vi v e r 0 <) 0 C I ~ Re e~e ~ 'i lA-Ct "}J I <2>.::. oj l ~ 2.-C (=-r....c -E- VI.. 1M -e=..dO v-> ~ ........, c~ ~ \.. 6~ qr:rs2-C> {'ff?-O G-tf~ ~5 A6 . n 6 , ~ v-.i" l.J r),F I Y T J IJJ/d ~ {( / c..{~ Cxo ~.~ /J,'(ck V,:/CyiVlo ~Y'\w~vv> . o' 00 /; /Cj IJ'~~29 aJJIl~d./ # .2 0:. 3:?/ L-{/J7 ~l/~ uAkT'Ll; //~.11>v 3/0,)07 ~'/ C~, '~yol o~,,~sf-. Nu fflifffA.{CVf.1). /" ~"" r J- \o-S~ L~\A.a.,,- P.~~\eu...J.,1- a~ I( '-- ?~"^ ~\Jl. ~(9i.~) c~;l~s 0\~e:yor: rC)~ ~9di5 ~~ if'-- ,- I'm concerned about the animals in Ashland ~"ho ar'e tied up at their homes for e:<ce~-ssive periods. They suffer It::>neliness. frustration and boredom. They also run the risk of stranqling to death, getting abused by kids or .adlJ.ll.tr.lS, getti~ attacked. by a~imals, OT d..,ying O.f l'h,.eatst~ke:.SC)rL~ I A. 11 b . f? () 7 c:..-{j d I G7 J::( c... K / -L. C, 0 q. q 0 I c.f H"W <;:J.. "1 Cf 't\SIUfl.1t-{;J .lac:s 1 County allouls animals to be tied for their eMire lives on short cha ins. Th is i"!S not a 1 i fe tha t anyone in Ash land, i nc ludi. n9 pe ts, shou 1':::1 have to endure. Please pass a la"" to make this kind of aflimal abuse ille9a~. Please heavily restrict the tethering of dogs fnd other animals. SS }Flor7o~p:b {).E ~\ L-\< ME lj (Z) tJ G [ (L \ D.Li q ~SPLI1 f0 D . 0 f( By d01ng th1s, you ~'l1ll also help people. Cha1ned dogs are often a bar'ki~Cj nuisance. They're a1s more likely to bite eORle than ath r dogs are. -:p q-i:! . .. -. l1 , I ( I < /~7o KIrk i~. /Js(~?) 4{pD. 65 7 A i-f t\.AV 5-31 L/S~ /<10/ ()f!~. \L.\D} 405 +to ((,'son stf'ee.-r- Mia L =to I s;e.cvVt-.) ~~i- 4.; As.wiAtJ-~ 21..0 vJ - ~ '"1olp "..1" t {}~,,;_ -J j U'J ^ <" 1ft ^ ., i' LJ AI VI I (J~ j Dear Councilors and Mayor: I'm concerned about the animals in Ashland \Alho ar'e tied up at their homes for excessive periods. They suffer loneliness. frustration and boredom. They also run the risk of strangling to death, getting abused by kids or adults, getting attacked by animals, O~ dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endure. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering of dogs and other animals . at thei r homes. By doing this, you \&lil1 also help people. Chained dogs are often a barking ~uisance. likely to bite eORle than oth r dogs are. JLtt'Y\J (j DiL n ') en G~\,", JCd'l n3'3 3@twt-maJ \ .com =' ~fVttJA elL / S'l ~ O.-e"4l"- S t 5-11.-07 VV1 tA R~ I'll w. 0 RK .tJ41o. /I . 1>,,- DIe- d ~n J~ ..._---~ C ~(~':, 'Y0~~ 'J1 M (2 \ ~L-t 5 (J Li3rll? [) I C- k C~ /z 12/ &/-}# l./?I AI 11/'t"'N 14 VI== A:5;'/L../4,v 'lJ~ i 6 ]) (( r; .' chru Z 7 ~- ~hQVe.J.).pe 57 vlluA j me clr:,id i1Jt:>~ V~r-,,-, w!\ - . :.~ - I (~ r? \ V\A.. '3 ,)' 10 ( l-,-----. W" .2..__tL-U.!__... ~-I Z. _0-' s"lif,-o 1 ~- 1 do. -07 {}:;:k S=t ovtld {If' L'&~ rZ6B' f(o~<. L c.v'I< , Q ::r;M 1 ~~ '-1 ~ l/Po --r:. ;L7~ CJ4 G.F;_~ b~.~ Fts~r~ 1 ;~ Jy~ , ~ 1Bl IS ;;)..1 c}.. , fVl ~I t \. v' .:r~ I 33 /v1o(j' ,;.. DcC{./ ~ I ( ( I l I , I " '1 J..r1lO . ~ tI~ ~ 2ZQ .--' /7,/07 b?.f((C ~CI.5P"-- }-.)..t\ ? cJ.tJ I 7 STLJ 6$?/~/~ BulUffL 1M M Otv/FoRT r( (r QVlt1 '" S-I. Z'L t..- pfA'. /f"J <f~~...d~ c!# 9 ~ ," 1. &")' \ 'j~ )o!. \"\^ ",f ", L f,' .1 ~~. c) ! . ,/ D\ i/',;) l Dear Councilors and Mavor: y I'm concerned about the animals in Ashland who are tied up at their homes for e:<ce~-5sive periods. They suffer lClneliness. frustration and bc)redom. They also run the,;rit~k of s;tranqling to death, getting abused by kids or adults, getting a'ttacked by animals, ':::It' dyinq of heatstr':::Ike. Jackson County allows animals; to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endure. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering of dogs and ather animals at their homes. By doing this, you -1'1 ~!ll-; i sa nee. ~~ help people. Chained likely to bite eo~le ~ often a ba rk i ng r dogs are. Va V" ty\Q }t44tt f'v1fAvL Oe(~ ~. l2Ve, 12-Oe ~ .~(b~ aq-,-qZ;h PlnrOlC~" tte.v~~"" {). A v 1\:4 c:, Ii, tlO V~V1 Ct.-I t7~t- D '~ L C (~..CO,lkfl- S7: - -, JJo . kv~~'\J~U'\, ~(CL~ ) SMt-J 5 5ia. 2.SOS- 7itit~1o /J/~ 7v"","f ~ I'~ 7;t -?$~,,: i , 795j;Jh/fkPl %~Ii7z~ ~'at q1$ CfQ l j I i l . ~ r'. 1 I . 1".("'_ If -{ 11 \ -7 i "> < ( !I,r," (, , ' '-' \ '1\\ V/ '-, -' I... ~~+ 5Ghe ~~~ \~ , i . I i I ' ! ' " (<.., - , i l '11 ._,tt) j ~ C(1./5_~ ~<., /? r--... n-" i.Y, ,,,,,,I) Dear Councilors and Mayor: I'm concerned about the animals in Ashland who are tied UP at their homes for excessive periods. They suffer loneliness, frustration and boredom. They also run the risk of strangling to death, getting abused by kids or adults, getting attacked by animals, or dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endure. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering of dogs and other animals a t thai r homes. By doing this, you ..n _-2u. i sa nee. .~~ also help people. Chained likely to bite peop-le ~ are often a barking oth r dogs are. o . ~~~. <&~^CV\ ~:J+-. 3~S' AsA!EJt~ '- /' Hs \-1 \ CA. n(~ '3'LI ~J Clay s+- 4iJO 1 kkb~ ,oR Sf- ffllO Cl 1\ it /7/ :J ,"<7C.~/i, /2j;; ,/f.;;t/~~-,,~ ;{ ~)! ~ ':A 0' I Lor" V0. ''f i{() Tie r- /1 1^v1 ci+ r (2-"'1; i'1 I \J-\\e Ha~Jk\PlijJI6, J./ (}eQHJj 4?ti~,.fL--- 0 tUrt-Jl;J o . 11,(}1 '-As~J.iy ~~ e7'u>Vl 5- 21-\ - 01 5(20(07 t /1/'7 ' /llJIe?C- ' 1.1J).~,-____ ~-( ( -- ~ 1 ---0 '1 '0 ~- J..7~ 0 ...-- S f., .--:+c ('i C-r ) '. ,'1 () ',''''' , " 0{).j(+-11 ;; I r) , I ' \<.' L, \ /, "y i \, k-.- - . 1 "--".......\. ",--",. . J i' ,r~/\-"i ,......,/ , .... ttJo t 1Z)ry laut .w!b,g' OJ}) _ ~~ ~. U:u.J-r~ Q. CUJv\"~ OfU:I '3jYo 5,c/v<---r/2c1 ()rMth;/tU/ ~ 1'1-01 O~~ St .~43o hklo-w.( D~ ( j A I -<-" l V ()// ' 1-, ^ .' ,...., /") J.. ---I' t ii V f\ fJj '} '(i~\C\' q ?S-~ /JCe )'c-1 ~ /j 5}d v: C'" .:ut.." '? /_}'-f:-v DOC' N.Q..c'1 to ~ h4L') . c c;t, ~tDS V\J ~ h1fho-Y) S".f" ~ add'ffi1Ue '-' " '-... ~ ) "'\. "'\..... ~2~ CL.f-- 'iff{ ~/'?7rv ~(Y\01(}\:J €? ~<hi S ' ~ . , ~tqq 5iSKIY6U&p ~LA^!p ~ Dear Councilors and Mayor: I'm concerned about the animals in Ashland ~"ho a.r'e tied up at their homes for excessive periods. They suffer loneliness, frustration and boredom. }"hey also run the risk of strangling to death, getting a~d by kid-= or adults, getting attacked by animals, OT dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endure. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering of dogs and other animals at their Aomes. are often a barking oth r dogs are. also help people. Chained likely to bite eo~le -. ~ +- 51 ! / I r 'I- ~. J-' U ~A-NW" &~G~ ~ C0aD L~ ~ e/t ...P-.r] ", ) d~ "-1 l/'-. r\Vu'{\I\'2S Q2 5~\\JU \ e..Scx.oy ,L.,OVV\ \ \ (( 3qS; pj&ct~~r~r C '-. '--Gt ~1- ~T $\, SifUNJ) "( d 50v-&0.0 ~ I~-r vt -7 7 ~ - 8"3 \ - 0 :3 S- f .S'"2-2.4<; If Scr-z - u 503" ,)(yi- To Ge elf )~ fit) jJz,L\ {,.-4 MSv-k "~J... (..1 .... /' _.nf I'.a ..._, , \ .-J'"1_ t""i" '1.,- _0" :>~' i ---- ~-:.. '7 , 8o~ b/{S a.nOQ) 'Co~: {(or /2: \fer I o"~. q 7S 37 ~ i)~ \j"" kL \ ' d\ ~ v> 0 t I:.o."J ~ -:+11- t II I f J.."f- rn 4 ~f- I - Jl1!'e- ,6;)-f,A/e.,,1" O,L 72-( (- S- I 'Z.- I N ~ 1T"'I,,.,..,<1' po o~.of" L~f'> ~ ,,:> ~ '1f2s \ ~llL\j'(tYJ l Dea~ Councilors and Mayor: I'm concerned abou'i;; the animals in Ashland ,..,ho ar'e tied UP at their homes for excessive periods. They suffer loneliness. frustration and boredom. They also run the risk of strangling to death, getting abused by kids or adults, getting attacked by animals, aT dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endure. Please pass a. law to make this kind of animal abuse illegal. Please. heavily restrict the tethering of dogs and other animals at their homes;~ often a ba.rking r dogs al"'e. also help people. Chained likely to bite eORle '" 6'f U fltftJ -( f Y' 0 :5 '1/ -30/ -Joe; tJ (107) 7 5'4-1 - 0,,- :.5 ,{O SoL Pj CA-k,-R 7676 $51- 715 - Lf7'p.Q ~t-Lf~-11-Og 5 t{ {- lfg l ' b 35 r 6L1!--2,1 t - ( )15l ') ~ ., sq 0..2... Abr4~ ,rt?'-:J -- b 0' '7 -> u ~ S"oJ - toL--( '3U - l/gg'- 4'7'2 L ( f~ 303-~Y - L ~(I ;:;.J..Oh c:. ,Vr't wo..-k 10 As.t-, ~ ~ 7-8 ~'1/-6;riJ--f(b07 J1sk{q~ I~O . q~4 ~ ~Ql1 (~{ tl-v ,,-I; {.&; IY1 Dear Councilors and Mayor: I'm concerned about the animals in Ashland who are tied up at their homes for .:::<ce'ssive periods. They suffer loneliness. frustration and boredom. They also run the risk of strangling to death, getting abused by kids or adults, getting attacked by animals, o~ dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should haVE to endure'. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering of dogs and other animals at their homes. By doing this, you nuisance. They're ~e", . help people. likely to often a barking r dogs are. tiVl.J\C qf-, ~s<.- fM-' ol ~ ~k 0 11520 Ir~~ It5l-!-qJfS~ 1;j' d1- 91[;% (v. w: t1.t ~4f{ r.J 5 f, ,q~ 10<6 )~h l<. t'\ ~, CIA r0 , Ys D ti \?rkJut st I ASh \~ S TevC 1'-\ AN' c.q S-32- S~ ,~~ QQ7..6 vJ A,,vd C{~cl( ~c q 7 ~ 40 $""Ce.<1c..HANic.-H ~n~ (f.-. t:..o eM-1b {flow- r'f 3 # I 1'YJ;t/1-1I sr 'i ,S-Zo 1& I' (1.1~2 LAN"> i )( .f~, OiL ~'1facJf L-' \\.1 -(\-Go1\-- ~ )/~~J~,r , " ~^- \ 20 S MovJ') ct; A sh (~Y\J Jt ~A-j cA- ~Lf S-~. . ~:; ~~U~(;p""" CJ\ A-<1# kit \ 11 Dear Councilors and Mayor: I 'm concE~rned about the animals in Ashland I..,ho ar'e tied up at their hc.l111es for excessive periods. They suffer loneliness, frustration and boredom. They also run the risk of strangling to death, getting abused by kids or adults, getting attacked by animals, or dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short not a life that anyone in Ashland, including pets, should Please pass a law to make this kind of animal abuse heavily restrict the tethering of dogs and other animals chains. This is have to endure. illegal. Please at their homes. By doing this, you ~isance. Th~y"re also help people. Chained likely to bite eop.le "'\ often a barking r dogs are. ( tP 0 c~vlf-(ll f SLo/#.) /zBo . P, () /.YJy. 7t~ . '- LA lJ (, ()~ Q3cr, Wo <Zr Croo ;}16 ~~/6 J;;,e. k~lJ UV-, /) ~ S 6,..<J})/C. ,4cyJj..~/J q:rr~o Qt~ 0(',-- 6 i;tf- y~--. ~~ ~ '17 '{II ~ to~ 2.0~ U~A1/41' l?\ h,\ LC/h~t~~ J...U )/$ !'/ ~ / f),(~!t!-~-tA [,):Z" e . It( /f(/I/ S'F 1 '- Ii I t 12~12- Fj;) J4 fl/IJI./ If I !5; ) /1Jt3/iJ ar; r.t 5 TO ,A,i (X /00' LcJ s. bcuJ-o? /,~ ~ C'i cr~5'- fVV~:( c, iJ/' ? ~n c. cr&c~ c4~~ ~ ~i. oll' b~ \bb( 2>~ B . -;2/ \ "vi- ~ 0 1L. 0 ~Oe;, tJ \~R..:I (!.,E. Ltv~L,u Li VES IN A5J-/L--AJJ 6 .\~qO tO~ S1-- Ue-~v,"Y\ Vf '1- '1 0 lo-l ~ ~-t We J-L,hl-1 DR '2!-(), c..- \. L1resh'tm~7C#p :J v v ober5 Vc-.' 0 to - \ - 0'1 ~~ A.$" cvta (/ ;L- Dear Councilors and Mayor: I '1l\ .=onc:erned about the animals in Ashland ~"ho are 'tied up at their homes for e:<cessive periods. They suffer l.::>neliness. frustration and boredom. They also run the risk of strangling to death, getting abused by kids or adults, getting attacked by animals, OT dying of heatstroke. - Jackson Coun'ty allows animals to be tied for their entire lives on short chains. This is not a life that anyone in Ashland, including pets, should have to endure. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering of dogs and ather animals at thei r homes. a 1so he Ip peop le. Cha i ned dogs are of ten a ba. T"'k i ng likely to bite eop-le than oth r dogs ar'e. "'\ c; c;.- ( .... )-~ ,... en It. \, 01- -- -6) c-/ -0 / --07 fJ,iJ> Y 1/t+AA.lS V1;{~ f J -gIJ3lJ ~-d j),.AJ(~ )j _k<L::f! _J2~B . /./1)( 1cRt l (5; ~5' 3 Sc.J D(jQ~ -5 J (601'J I Y-BCZ ~k~~ 9t,lVE/~L(5) 7 J-1 f oj w\ 5+-- M~~~( 6f2- q 1$0 0-/-01- . t:-I-OT \. r~~r\ \ / ). /' L ~ -/- ~~t2' r.;A~<J VI ('0.. :;~}-U r /fC-u- f6, 11 ~ '", \ \ --.) .J'.v ,-" 6..( I, S4 ~\le(\; frSi-\LND dC-' . , . ,t~ i07 ]v'{)~ ~~ ~-~ Ul1A..nt.~ Dear Councilors and Mayor; I'm concerned about the animals in Ashland who are tied up at their homes for e:<cessive periods. They suffer loneliness, frustration and boredom. They also run the risk of stranqling to death, getting abused by kids or adults, getting attacked by animals, aT dying of heatstroke. Jackson County allows animals to be tied for their entire lives on short chains. This is no~ a life that anyone in Ashland, including pets, should have to endure. Please pass a law to make this kind of animal abuse illegal. Please heavily restrict the tethering.,of dogs and other animals at their homes. also By doing this, you nuisance. They're ~ " ~,~.~~LtLD- <.. c:r (f1/Y't4 f10 V'Q Vlu {b Y'c1 c.- '" L1A~ ~ tra6te likely 'N\~ 1/ ) SdtvV-> r.... .1 II often a barki ng r dogs are. 3-too 2-- Lv A-W:S CJ2LC ~ ; 6P O!2.- p,o_tN J t4a'Pf1rNV('A9~3'1 5 <{S lA.-) -vt \ <:Y 1-1'- J4:sVv~ t7YZ- &tq ?--o 6 ~r-> IJ" /' I ...A" tL- / /' / ,L.. ,.. \. r....., ~.,/\......,._.......,..."..- "- . . -. - . -oro, -,- -':"-~' ~"-r...rrUIl..... <...Jv-( )p''//-J7~ ~ ! ~OvVtl . Ull~ /~OL- . --:-- ~~ I~~ ~ s fl1A~G\t:. P~()l'\:P-dJ 33 B~ OAK fVt 14rDO~ 9. ::1/-35 IPs f tl air! tf? C; 7 J20 \3,-{ l{ f\A.M.rr~ 9-\. ~~ l5'<L Iq-.v:-~ ~a&{f~ 6~~T\~ ~ '1 52- f4 yt:5' J 50, t 'vJ VQ ,rey V~(,UJ / gr e /I/61rr:Jf) & / () 61eIJd 4 / lltl/C, (t<Lt 14A~ CP u., gq/ ~'_/0:C. DC..cU S r fJ 14 /..- m /9-ve. ~~7 fAu/;J J4Ve. ~ff L.-nIV. 132S e YhC'o be-. Ash}4 d foB 4214 BtRX- CA ~lt7GY Qo ~ q(f', J 7i~..f tOR- 91540 . ,/)') 5.~ ~ L..l Lk () 0 l~ \4V\A1 'll < 11) ~ ~.\ ~ ..,:.' ...,. '1If. . ~~.~ (\~~ Dear Co.unc i 1 0 rs and.I113.Yo r : I'm concerned about the animals in Ashland ~,ho aT'e tied up at their~..\ for excessiye periods. They suffer loneliness. frustra.tion a.nd b~ They also rur:' the ri.Sk of strar:'gling to de~th, get. ting abused by t.-~.'.d.......~.................~.j...............1....' adults, getti1ng attacked by an1.mals, o't' dY1.ng of heatstroke. . ..~.. . Jackson County allo\,lls animals to be t. ied 'for their entire ..liyeS on ~....... .......................~... .... ...... chains. This is not a life that anyone in Ashland, including pets, =>" .... have to endure. Please pass a la...' to ma.ke this kind of aO'~mal abuse i':\ illega.~. Plea~e heavily restrict the tethering of dogs and other anima)~~ at the1.r homes. .~ ._. .../ ~ I'~ By doing this, you quisance. They"re help pepple. thained likely to bite eop.le often abarkin9 r dogs are., r' ~9::Z6 ~l.,~ )~~ 2-olAp CJ\~ "/2- /01- (Q ~ O~. ro"/!Jrfl.37~ ~~.U...{U''iF -:=t 6/3 ~d 51-. flshlanrAJ O~ v ," IA/ I . . h (4MGo " 12 4 ~ P l\1,z...,lL <Z;T7U?"E:T As. ~I'L, 4 .y; "'5 q ff~~ ;J l~/tO()~ ((;.,.. , (l,c It l P--F k?s'~/L€rt- t~ b .t ( (c.. "'J"A f.fe-l. ~, : :~~_. . . ," ~ i._.r~" 'C.'. ''''- 4'7~,!' '"." '''' ' ~ g: "'Fe ~ 1; ~.~-T':~,:"1 'So, . - ',':--, ".'_ ~ ,f=, _ , I~'-'--' - ',- f:~;t..--.- .... l-i -J .;t ~". .,', . . ~~~~._" {'~;::-' .t:.-:..," i' ~- I,~_ -"__:~ c,;'" "1 ,........._. 1 ~' , ! '~,__.' '..,.'~' .-_..-.r: - ~!-1 '--'q"""""~-1:.;;:'- - - ~;-.i): ."' -,;' ~ :,.. ", _ _ - -:;. _ ; ;:.<~_~,. ...... ..... ~ ". :~. \.'., \" ~\r June ~ 2007 To: Ashland City Council Hayor City Administrator Charter Review Commission Presented at: Public Forum - June': 2007 THE CHARTER REVISION: WHAT WENT WRONG As distasteful as it is for some, if not all of you, to once again consider the Charter Revision and the dreadful outcome, I want to review the cause with you briefly.. For those who don't know history are doomed to repeat it - and governments today seem to have no institutional memory. One might say that it failed because people were strongly opposed to some of the provisions, such as parks preservation or city manager proposals. But these substantive issues and all others are results of what was really wrong, which was THE PROCESS. The process was flawed at every step of the >Jay. When opportunities were suggested for correcting it, they were disregarded. 1. The Mayor appointed people with whom he ,felt comfortable. Unfortunately this was a narrow group of people, limited by the mayor's view of what the constituency of concern should be. There were no older retired people on limited incomes, students, single parents with children, working class people, minorities, etc. This results in a narrow range of ideas and viewpoints - and thus a constricted process from the first. 2. There was no democratic process - no dialogue. One could present questions or ides, but they were in the same format as these meetings: five minutes, no response or discussion with/from the commissioners and the obligatory "thank you" at the end. 3. There were two public meetings. Citizens circulated among "topic tables" to hear what the commissioners were thinking. Citizens' ideas City Council re: Charter FRevision Failure - 6/6/07 - p. 2 were jotted down, but there was little or no feedback, discussion; no kno..m follow-through. My concern over ethics was put under "etc." and never heard from again. 4. After the Commission concluded, an outside consultant/lawyer was hired to review and edit the report - without overview or opportunity for feedback. 5. Finally, when the proposal came before Council, the mayor and the former City Attorney proceded to make changes ex cathedra, to the surprise of Council and everyone else. One of these regarding water so incensed the public that the response stopped this activity. 6. Finally, some of us came to you and asked that there be public meetings for discussion, explanation, and dialogue from the community. These requests were dismissed. The response to those of us who almost literally begged for such meetings was that we were litigious and troublesome anyway, and would take legal measures to block the public canvas. Had such meetings taken place, the citizens could have been informed of the intention and effect of some of the critical changes. If they were misinformed and frightened, they could have been reassured. If they were correct, changes could have been made. And so the charter, and the City Hanager proposals failed stupendously. We do not have a revised charter, and all parties. regardless of the specific provisions, are discouraged and frustrated. Had a truly democratic process taken place the: ,0utcO!l'e could have been different, It might have taken some more time, but now all the time and energy of many good people has been for nought. This could become a learning and healin6 p~ocess if we re-initiated charter revision based on what we have learned from this failure. I hope this happens in the fore~eable future. // . . n'" 0< ~ CD ..... OJ OJ .., n "C ..... .., ~ 0 -. "C ..... (1) ::r~ .....-< ::r..... (1) OJ nx g nr ~ < .....-< -< 0 ..... ~ o ..... o ::r "C (1) to V') .., CD OJ "'0 r+ ..... (1) (1) ;'3 (1) tT' )>to '" .., ::TO- or~ ::s - c.S- OJ .., OJ ~ n :r r- -. 0- .., OJ ~ . . U'1 00 n to ::s ..... '" "C (1) .., ..... ::r o c: '" OJ ~ C. - ::s .... tD ... -. 3 r- -. CT ... 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OJ OJ"'C 0 0 OQ OJ OJ ...... ,..... .., n (I) - I""t -- -- 0 I""t 0' -- OJ 0 o n ::r (I) ::s C'" :::s :::s (I) (I) :::s .., I""t OJ (I) (I) (I) n I""t "'C (I) (I) 0 0 (I) .., .., (1) t'D OJ .., :::s (I) ~ ~:::J :::s - (I) t'D ~C"'(I) ,..... o::J (I) I""t c: 0 ~ .., .., n OJ OJ OJ ::r a03 - n :::J 0 n (I) " CD n 0 t'D (I) OJ .., ::r - (I) I""t I""t OJ .., (I) (I) o (I) :::s ,..... "'C .., n t'D 0 n -- tit 0 c OJ ::r ~ .., - 3 (I) - .., n -- t'D I""t "'C ::r CT ::s -- OJ .., 3 c: OJ n I""t (I) .., t'D to (I) (I) -< n (I) .., e- n 0 (/) 0 0 - 0 - - - (I) " to ~ (I) n OJ I""t -- -- 0 :::s 0 :::s Q. :J - - 0- 0 '< I""t ..... )> ::r 00 (I) U1 (/) .., ... ::r "'-J - 3 0 OJ :::s OJ U) 0. I""t -- (I) I""t ~ .., (I) -- 3 (I) OJ ~ - (I) (1) (I) .., (I) :::s n (I) PlEXIS May 31, 2007 AsWand Chamber of Commerce Attn: Sandra Slattery 110 E. Main Street Ashland, OR 97520 Re: Kaufman Crossing Dear Sandra, Thank you, the staff and the Rapid Response Team of the Ashland Chamber of Commerce for your ongoing support and assistance. Your help has been invaluable to our growth and success, including helping us with identifying future locations for our business within the city of Ashland. Plexis Healthcare Systems, Inc. was founded in Ashland nearly 11 years ago, and has met with great success in the marketplace. We have grown from two people in my garage to nearly one hundred professionals in our various buildings in Ashland. I believe our Ashland location has been a very positive part of our experience, and has helped make Plexis a good place to work and a good company to do business with for our customers and partners. I would like to keep the company in Ashland in the future, if at all possible. We are projecting continued growth in revenues and staffing over the next five years. Our current facilities are adequate, and will meet our needs for at least the next few years. It is time, however, for us to think ahead and be prepared for the future. Given our current growth rate, we project to have nearly 200 employees within the next five years. It is my preference to have as many of them located in AsWand as possible. With your kind assistance, we evaluated a number of locations in and around the city for future expansion. The proposed Kaufman Crossing development seems to be the best of all the alternatives at the moment. I am very interested in working with the owners of that land to in partnership create a location for our future expansion, while helping the landowners make their vision a reality. My vision is to create a world class campus-like atmosphere at that site for our business and others like it. Plexis attracts highly paid professionals, and will create many jobs for the local community. I guess one way to think of us is as "cash importers". For this reason, we are being courted by a number of other municipalities. We would prefer to stay in Ashland, but if we cannot find a suitable long term location soon, we will start exploring the relocation of divisions of our company to other cities. I had very preliminary discussions with the representatives of the current owners of Kauftnan Crossing. I believe we can work out terms that will be acceptable to all. As I understand it, there are a number of hurdles that need to be crossed before I have more serious discussions with the owners, not the least of which is approval by the city for the development. I am in favor of the development, and very interested in seeing it become a reality. Plexis Healthcare Systems, Inc can be the anchor for other businesses to move into that development and bring clean, high paying professional jobs to the community. Regards, Uv\CkiLr, ~""'-l ('--{rf\, I/fI. (I L'f\\) I i.- ~'\.._ Jorge Yant " CEO & President ,:lujSi;,~/tll , ~I v ~+l. _ ./1 i , /i :," I . \, /f i- I' - ! - 'j v',-,-l'\.../l ..j , , :"..1 i~, _ i\).f v BEFORE THE CITY COUNCIL CITY OF ASHLAND, JACKSON COUNTY, OREGON June 5, 2007 In the Matter of an Appeal of Planning Action 2006-02354, a Request for Site Review Approval to Construct a Two-story building for the property located at the southern corner of the ) intersection of North Main St. and Glenn Street. An exception to ) FINDINGS OF FACT the street standards is requested to install a curbside sidewalk ) CONCLUSIONS OF LAW on the Glenn Street property frontage. A variance is requested ) AND ORDER to reduce the special setback requirement for front yards for ) properties abutting an arterial street from twenty to ten feet, ) within the City of Ashland, Jackson County, Oregon. ) Applicant: Raymond J. Kistler, Architecture. I. NATURE OF PROCEEDINGS This matter comes before the City Council for the City of Ashland for a de novo appeal hearing. The appeal is from a March 13, 2007 decision of the City of Ashland Planning Commission approving inter alia a request for a site review approval, exception to street standards and variance to the special setback on the subject property located at the intersection of N. Main Street ad Glenn Street. After a mandatory pre-application conference was held, the subject applications for site review approval, street exceptions and a variance were filed by the applicant with the Planning Department on December 8, 2006. The application was deemed incomplete. Additional materials were submitted by the applicant and the application was deemed complete on January 2, 2007. Notification of the public hearing before the Planning Commission on January 9,2007, was mailed, pursuant to Chapter 18, Ashland Land Use Ordinance to area property owners and affected public agencies. Notice of the January 9,2007, hearing was also published in the Ashland Daily Tidings. On January 9, 2007, the Planning Commission conducted a public hearing and considered the oral and written testimony presented, the staff report and the record as a whole. The application was continued to the Planning Commission meeting on February 13, 2007. On February 13, 2007, after the close of the public hearing and process and the close of the record, the City's Planning Commission deliberated and approved the application, subject to conditions pertaining to appropriate development of the Property. On March 13, 2007, the Findings, Conclusions, and Orders of City's Planning Commission were duly signed by the Chairperson of City's Planning Commission. The Planning Commission's findings are attached hereto as Exhibit "A" and are specifically incorporated herein and made a part hereof by this reference. (In the event of conflict between the Planning Commission findings and Council findings, Council findings control). An effort was made to request of the Planning Commission Chair pursuant to Planning Commission rules to bring forth a motion for reconsideration but the Chair declined, citing no new material facts. On March 20, 2007, and on March 23, 2007, the Ashland City Council met at duly noticed public meetings and discussed calling up the Planning Commission's March 13, 2007 decision. Following discussion, by a vote of 3-1, the Council voted to call up the appeal. As stated by the City Attorney, the reason for the appeal would be to provide guidance to the Planning Commission on balancing between the special setback standards and the historic standards as they relate to the variance criteria. The Council finds and determines that this alone is the basis for the Council initiated appeal. Prior to the discussion, Councilors disclosed ex parte communications and made affirmative statements of impartiality. PA 2006-02354 N. Main St. & Glenn St. Page 1 Notification of the de novo public hearing before the City Council was mailed, pursuant to ALUO to area property owners and affected public agencies. Notice of the appeal hearing was also published in the Ashland Daily Tidings. On May 1, 2007, the City Council conducted a public hearing in the City Council chambers; during the public hearing before the Council, testimony and exhibits were offered and received, in addition to the exhibits and documents reflected in the record before Council. Pursuant to a request from a citizen the record was left open for seven days and the matter was continued to May 9,2007. After the conclusion of testimony at the continued hearing, the hearing was closed and the record was closed. The applicant waived the right to submit final written argument. The Council deliberated and approved the application in file 2006-02354, with conditions, upholding the decision of the Planning Commission. The Council's action generally upheld the Findings, Conclusions, and Orders of the Planning Commission, with some modifications as set forth below. Based upon the evidence in the record, the Council makes the following findings of fact and conclusions of law: II. FINDINGS OF FACT 1) The Nature of Proceedings set forth above are true and correct and are incorporated herein by this reference. 2) The subject of Planning Action # 2006-02354 is real property located within the City of Ashland ("City"), and described in the County Tax Assessor's maps as Tax lot 3600 of 39-1 E-05DA is located at the southern corner of the intersection of N. Main St. and Glenn St. 3) The zoning of the Property is E-1 (Employment). 4) The applicant in Planning Action # 2006-02354 is: Raymond J. Kistler, Architecture, ("Applicant). III. JURISDICTION The May 1, 2007 Council Communication quotes the following ALUO procedural requirement: Appeal Proceedings (18.108.110): A. Appeals of Type I decisions for which a hearing has been held, of Type II decisions or of Type III decisions described in section 18.108.060.A.1 and 2 shall be initiated by a notice of appeal filed with the City Administrator. The standard Appeal Fee shall be required as part of the notice. Failure to pay the Appeal Fee at the time the appeal is filed is a jurisdictional defect. 1. The appeal shall be filed prior to the effective date of the decision of the Commission. 2. The notice shall include the appellant's name, address, a reference to the decision sought to be reviewed, a statement as to how the appellant qualifies as a party, the date of the decision being appealed, and the specific grounds for which the decision should be reversed or modified, based on the applicable criteria or procedural irregularity. 3. The notice of appeal, together with notice of the date, time and place of the hearing on the appeal by the Council shall be mailed to the parties at least 20 days prior to the hearing. 4. The appeal shall be a de novo evidentiary hearing. 5. The Council may affirm, reverse or modify the decision and may approve or deny the request, or grant approval with conditions. The Council shall make findings and conclusions, and make a decision based on the record before it as justification for its action. The Council shall cause copies of a final order to be sent to all parties participating in the appeal. PA 2006-02354 N. Main St. & Glenn St. Page 2 B. Appeals may only be filed by parties to the planning action. "Parties" shall be defined as the following: 1. The applicant. 2. Persons who participated in the public hearing, either orally or in writing. Failure to participate in the public hearing, either orally or in writing, precludes the right of appeal to the Council. 3. The Council, by majority vote. 4. Persons who were entitled to receive notice of the action but did not receive notice due to error. In addition to the appeal provisions provided above, ALUO 18.108.070 (5) provides: The City Council may "call up" any planning action for a public hearing and decision upon motion and majority vote, provided such vote takes place in the required time period, as outlined below. No appeal was filed by the applicant or by any other person who participated in the public hearing within the appeal period. The only basis for Council consideration of this action is the Council's own majority vote on March 23, 2007 to appeal the matter. The Council action on March 23, 2007 was as follows: Councilor Hartzell/Navickas m/s that Council appeal PA #2006-02354 for a hearing. DISCUSSION: Councilor Hardesty voiced support for calling this forward. Councilor Chapman shared his concern that they are getting dangerously close to prejudging this. Councilors Hartzell and Navickas clarified their general concerns are not with this specific proposal. Roll Call Vote: Councilors Hardesty, Navickas and Hartzell, YES. Councilor Chapman, NO. Motion passed 3-1. The record of this proceeding reflects no notice of appeal filed with the City Administrator within the appeal period nor does the record reflect filing of the standard appeal fee (or transfer of funds) during this period. Unless excused, this failure to strictly follow the local appeal requirements is a jurisdictional defect. Siuslaw Rod and Gun Club v. City of Florence. (Where a local filing requirement is "jurisdictional," we stated, neither LUBA nor the local government may disregard that requirement.) 48 Or LUBA 163. 171-72 (2004) Brievoael v. Washinaton County. 24 Or LUBA 63.68. aff'd 117 Or ADD 195. 843 P2d 982 (1992) McKay Creek Valley Assoc. v. Washinaton County. 16 Or LUBA 690.693 (1988). Type I, II and III decisions identified in ALUO 18.108.070 (2)-(4) all provide that appeals shall be "as provided in section 18.108.110A" The action approved by the Planning Commission includes Type II decisions and is subject to 18.108.110A. Specifically ALUO 18.108.070(3) provides: The decision of the Commission is the final decision of the City resulting from the Type II Planning Procedure, effective 15 days after the findings adopted by the Commission, unless appealed to the Council as provided in section 18. 108. 110.A. (emphasis added). Again, no privately initiated appeal was filed in compliance with this section. The only appeal was the City initiated appeal pursuant to ALUO 18.108.070 (5) which references the Council's ability to "call up" a decision. The council's appeal was not as representative of any interested party or group. The Council finds and determines that ALUO 18.108.070 (5) is an independent source of appeal authority and that the appeal requirements and other restrictions in ALUO 18.108.11 OA do not apply to the Council. By way of explanation, certain of the "appeal" requirements in ALUO 18.108.11 OA simply do not make sense when applied to the Council calling up a decision, e.g. specifying error will invite allegations of prejudgment. In addition, the provisions of 18.108.11 OA requiring the Council to make a decision on the appeal do not make sense if the Council is the appellant. Accordingly, the Council finds and determines that the Council has complied with the Code requirement to hear this appeal, as the Council by majority vote, within the appeal period called the decision up for hearing. After due consideration and debate of the matter, the Council independently "withdraws" its own "appeal" or "call up " of Planning Action # 2006-02354. The Council was the only party to "appeal" the decision. The Code does not prohibit withdrawal of an appeal by an appellant prior to final decision and the Council is the only appellant. Specifically, the PA 2006-02354 N. Main St. & Glenn St. Page 3 authority for the Council initiated appeal, ALUO 18.108.070(5), quoted above, does not mandate that the Council "shall" make the decision on call up. This is in stark contrast to the provisions applicable to a privately initiated appeal pursuant to ALUO 18.108.11 O.A , which appears to mandate a Council decision on an appeal. Participants in the Council call up hearing must ascertain for themselves what the requirements of the local code are, and what action is necessary in order to protect their rights. As the Code does not mandate a decision by the Council as it would a privately initiated appeal, the Council finds and determines that participants could not have reasonably expected that the Council was required to proceed to a final decision. Based on this distinction in the Ashland Land Use Ordinance, the Council believes that the exhaustion requirement for participants should not be excused by the Council's call up, as distinguished from the rule for non-appellant local participants in privately initiated appeals. Accordingly, as provided in Section 18.108.070 "[t]he Planning Commission decision is the final decision of the City unless appealed to the Council "as provided in section 18. 108. 110.A". As there has been no 18.108.110.A appeal to the Council, and the Council has withdrawn its 18.108.070(5) appeal, the Planning Commission's decision is the final decision of the City. The Council's decision to withdrawal the appeal is advisable and counseled by the fact that the Council was subjected to extensive ex parte contacts, as reflected in the record, resulting in four (4) of seven (7) members of the decision making body being challenged for bias and prejudgment. Had such challenges been successful, the Council would have had difficulty acting on the appeal. The Council finds and determines that the challenged members are in fact qualified to make the decision and adopts the bias and prejudgment findings set forth below and incorporates them herein by this reference. However, to avoid a wasteful LUBA appeal and further prejudicial challenges and attacks, the Council voluntarily withdraws its own appeal of this matter. The record reflects no challenges to the qualifications of Planning Commission members., accordingly, if exhaustion is excused, and an appeal is had, bias and prejudgment issues should not impact analysis of the merits. Accordingly, the appeal being withdrawn, the Council loses jurisdiction over the matter and no provision of the Code compels any other result. Accordingly, based on the finding set forth herein concerning the voluntary withdrawal of the appeal by the only appellant, the appeal is dismissed for lack of jurisdiction the Planning Commission's decision is the final decision of the City. The Planning Commission's decision is also attached and incorporated herein by this reference. In the event, the Council is found to have jurisdiction, that is, the Council's withdrawal of the appeal is found to be ineffective, the Council sets forth herein all its Findings of Fact, Conclusions of Law and Order, inclusive of findings on bias and prejudgment challenges. IV. FINDINGS APPLYING APPLICABLE CODE CRITERIA 1) The Council finds and determines that the relevant approval criteria are found in or referenced in the following provisions of the Ashland Land Use Ordinances. . The criteria for Site Review approval in 18.72.070 are as follows: A. All applicable City ordinances have been met or will be met by the proposed development. B. All requirements of the Site Review Chapter have been met or will be met. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options. . The criteria for an Exception to the Street Standards are described in 18.88.090 as follows: A. There is demonstrable difficulty in meeting the specific requirements of this chapter due to a unique or unusual aspect of the site or proposed use of the site. PA 2006-02354 N. Main St. & Glenn St. Page 4 B. The variance will result in equal or superior transportation facilities and connectivity; C. The variance is the minimum necessary to alleviate the difficulty; and D. The variance is consistent with the stated Purpose and Intent of the Performance Standards Options Chapter. . The criteria for a Variance in 18.100.020 are as follows: A. That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. B. That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. C. That the circumstances or conditions have not been willfully or purposely self-imposed. 2) The 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, and the whole record. 3) The Council finds and determines that this request for a Site Review approval to construct a two-story building, the request for an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage and the request for a variance to reduce the special setback requirement for front yards for properties abutting arterial streets from twenty to ten feet, meets all applicable criteria for approval described or referenced in the ALUO sections above. This finding is supported by the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, attached hereto and specifically incorporated herein by this reference, the detailed findings submitted by the applicant specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record. 4) Criteria: [ALUO 18.72.070] The criteria for Site Review approval are as follows: A. All applicable City ordinances have been met or will be met by the proposed development. B. All requirements of the Site Review Chapter have been met or will be met. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options The City Council finds and determines that the proposed development meets the approval criteria for Site Review approval. An office is a permitted use in the Employment (E-1) zoning district. The E-1 zoning district requires at least 65 percent of the gross floor area of the ground floor to be used for permitted or special permitted uses. In this case, all of the ground floor building square footage is designated as office use which is a permitted use in the E-1 zone. The site is located in the R-Overlay which allows residential units as a special permitted use. Residential units are permitted at 15 units per acre. The residential density of the site is two units (.136Ac x 15 = 2.04 units). The proposal is to use the second story for office spaces, two residential units, or a combination of office space and a residential unit. The E-1 zoning district does not require standard setbacks from property lines unless a parcel abuts a residential zoning district. The subject parcel abuts a residential district at the rear (east) of the site. A ten foot per story setback is required for a rear yard abutting a residential district. The proposed building is 50 feet from the rear (east) property line, and therefore exceeds the required 20-foot setback requirement for the two-story building. The building is angled at the northwest corner of the lot adjacent to the intersection of N. Main St. and Glenn St. so that the structure is located outside of the vision clearance area as required. The proposed building height is approximately 26 feet which is under the maximum building height of 40 feet in the E-1 zoning district. The proposal will result in 22% of landscaping on site which exceeds the 15 percent minimum for the E-1 zoning district. The City Council finds and determines that the proposed development meets the off-street automobile parking requirements of Chapter 18.92, Off-Street Parking with the attached condition of approval number 19. The original application required six off-street parking spaces for 2,700 square feet of general office (2,700 sq. ft. /450 = 6 spaces). PA 2006-02354 N. Main St. & Glenn St. Page 5 The off-street parking requirement is satisfied by providing five spaces on site and with one off-street parking credit available for the two spaces on the Glenn St. property frontage. The revised proposal, which is the approved submittal, increased the building square footage by approximately three percent or 89 square feet. As a result, the off-street parking requirement is increased from six to seven spaces (2,789 sq. ft. /450 = 6.20). In addition, the applicant revised the second floor to have the flexibility to be used as office spaces, two residential units, or a combination of the two. Here again, the off-street parking requirement is slightly over six spaces increasing the required number of off-street spaces to seven. The Council finds that the building square footage and combination of uses on the second floor can be revised so that the required number of off-street spaces does not exceed the six spaces provided without a significant effect to the site or building design. This is addressed with the attached condition of approval number 19. Two bicycle parking spaces are required, and the site plan shows the two covered bicycle parking spaces located under the exterior stairs in the front of the building. The City Council finds that the public utilities and transportation system have adequate capacity to serve the development. Public facilities and utilities are in place to service the project in the N. Main St. and Glenn St. rights-of-way. Water, sewer and storm drain services are available in Glenn St. N. Main St. and Glenn St. provide access to the site. N. Main St. is a state highway under the jurisdiction of the Oregon Department of Transportation (ODOT). N. Main St. is classified as a Boulevard (arterial) and Glenn St. is classified as a Neighborhood Street. Sidewalks are in place on the N. Main St. frontage and a portion of the Glenn St. frontage. The applicant will install a sidewalk on the Glenn St. property frontage connecting the existing sidewalk to the east of the property on Glenn St. to the existing sidewalk on N. Main St. The bicycle facilities are a shared lane on both streets. Bus service is provided on N. Main St. The City Council finds and determines that the project is in compliance with the Basic Site Review Standards for Commercial Development, Detail Site Review Standards and Historic District Design Standards. The project lies within the Detail Site Review Zone and the Skidmore Academy Historic District. The proposal meets the Basic Site Review Standards for Commercial Development. The primary orientation of the building is to North Main Street using a recessed entry feature. The front entrance is accessed by the public sidewalk as required. Parking is located behind the building as required. The proposal will result in 22% of landscaping on site which exceeds the 15 percent minimum for the E-1 zoning district. The parking area includes 19.4 percent of the area in landscaping which exceeds the minimum requirement of seven percent of the total parking area in landscaping. Additionally, one tree is required for each seven parking spaces to provide a canopy effect. Two trees are proposed on the north end of the parking area and the application states that the existing walnut in the southeast corner will also shade the parking area. Two street trees are proposed behind the sidewalk on the N. Main St. and three trees are proposed behind the sidewalk on Glenn St. The Council finds and determines that the proposed building satisfies the Detail Site Review requirements. The recessed entry is generously sized, and accented with structural steel columns. The front (west) wall ground floor includes 44 percent in glazing and the Glenn St. (north) wall includes 37 percent in glazing which exceeds a minimum of 20 percent of the wall are is required to be in display areas, windows and doorways. The front entrance to the building is emphasized by the entry alcove and awning. The Detail Site Review Standards prohibit bright or neon paint colors on the building exterior. The applicant provided exterior building materials and colors including Moss Green stucco for the second floor, Mountain Brown polished-face CMU block for the ground floor, Charcoal Black split-faced CMU block for the base and Vintage III (dark grey) Zincalume Roofing. The Council finds and determines that the proposed building meets the Historic District Design Standards. At an average height of 28.5 feet to the ridge of the roof, the proposed building is a similar height to the one and a half and two-story structures surrounding the subject property. The building is broken into two modules which creates a residential scale and reduces the mass. On the Glenn St. side of the building, the ground floor store front exterior treatment is wrapped around the corner of the building. In addition, an awning system has been added to the ground floor windows on the sides and rear of the building. The awnings and change in materials on the Glenn St. elevation serve to provide relief in the massing. The mass of the rear of the building is broken up the recess in the middle of the building. The proposed facade line is in the same plane as the facades of buildings in the vicinity, (See further discussion under variance criteria incorporated herein by this reference. The assertion by opponents that the Council is obligated to define the historic facade line in reference to any specific map or date is expressly rejected. The streetscape in this block includes a mix of buildings PA 2006-02354 N. Main St. & Glenn St. Page 6 considered both historic and non-historic, all of which have a mix of setbacks. As such, the historic fayade line in this streetscape is ill defined. The Council finds that the fayade line encompassing all structures in this streetscape meets the intent of the site design standards by avoiding violation of the existing setback pattern. The Council identified the positive recommendation of the Historic Commission as one of the factors tending to support this interpretation. Similarly, the attempt to define the fayade line solely by reference to building immediately adjacent to the subject property is expressly rejected. The reliance upon an interpretation of the word "adjacent" in other parts of the Code, in prior findings, is not binding in this section which requires a broader analysis. The Council incorporates the findings in the May 1, 2007 Council Communication authored by the Planning Director in support of this finding. The steep pitched gable roofs match the surrounding historic buildings. The windows have a vertical orientation which is compatible with the fayade patterns of surrounding historic structures. The base of the building is differentiated by using a different material with a different color (i.e. split-faced block in Charcoal Black). The two street facing volumes directed towards N. Main St. match the orientation to N. Main St. of buildings in the area. The ground floor front doors are located in a generously-sized entry alcove which is connected to a plaza and walkway area to the public sidewalk on N. Main St. Finally, the proposed building design is a contemporary interpretation with different materials and architectural details. As required, the building is clearly not imitating the style of an older period. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. 5) Criteria: [ALUO 18.88.090] The criteria for an Exception to the Street Standards are as follows: A. There is demonstrable difficulty in meeting the specific requirements of this chapter due to a unique or unusual aspect of the site or proposed use of the site. B. The variance will result in equal or superior transportation facilities and connectivity; C. The variance is the minimum necessary to alleviate the difficulty; and D. The variance is consistent with the stated Purpose and Intent of the Performance Standards Options Chapter. The City Council finds and determines that the proposed development meets the approval criteria for an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage. There is demonstrable difficulty in meeting the specific requirements of this chapter due to the combination of several physical characteristics of the site and existing sidewalk system on Glenn St. - the length of the property frontage on Glenn St., the location of the driveway and the existing curbside sidewalk on Glenn St. adjacent to the property to the east. The unique or unusual aspects of the site, discussed below under variances, are incorporating herein by this reference. A curbside sidewalk is in place on the south side of Glenn St. from the eastern boundary of the subject property to Orange St. Additionally, a curbside sidewalk is in place on N. Main St. and the corner of N. Main St. and Glenn St. The opportunity for a parkrow on the Glenn St. frontage is limited to approximately 50 feet in length between the wheelchair ramp at the corner and the proposed driveway apron near the eastern property line. A transition from a curbside sidewalk to a sidewalk with a parkrow uses approximately ten lineal feet. One transition would need to be installed from the corner and another transition to the curbside before the driveway. The driveway is required to be in this location because the Site Design and Use Standards require the parking to be located behind the building. After the transitions to and from the curbside sidewalk would be installed, there would be a relatively short length of parkrow installed on the Glenn St. property frontage. The Exception to the Street Standards to allow a curbside sidewalk will result in a sidewalk that provides the equivalent pedestrian facility connection as would a sidewalk with a parkrow. The curb side sidewalk will provide a more direct route from the corner of N. Main St. and Glenn St. to the existing curb sidewalk adjacent to the property. The Exception to the Street Standards to allow a curbside sidewalk is the minimum variance to alleviate the difficulty by maintaining a sidewalk connection on the Glenn St. property frontage. The Exception to the Street Standards to allow a curbside sidewalk is consistent with the Purpose and Intent of the Performance Standards Options Chapter 18.88 in that the chapter "is to allow an option for more flexible design that is permissible under the conventional zoning codes." PA 2006-02354 N. Main St. & Glenn St. Page 7 Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. 6) Criteria: [ALUO 18.100.020] The criteria for a Variance are as follows: A. That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. B. That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City. c. That the circumstances or conditions have not been willfully or purposely self-imposed. The City Council finds and determines that the proposed development meets the approval criteria for a Variance to reduce the special setback requirement for front yards for properties abutting an arterial street from twenty to ten feet. The Special Setback requirement (18.68.050) is as follows: To permit or afford better light, air and vision on more heavily traveled streets and on streets of substandard width, to protect arterial streets, and to permit the eventual widening of hereinafter named streets, every yard abutting a street, or portion thereof, shall be measured from the special base line setbacks listed below instead of the lot line separating the lot from the street. . Street Setback: East Main Street, between City limits and Lithia Way 35 feet . Ashland Street (Highway 66) between City limits and Siskiyou Boulevard 65 feet . Also, front yards for properties abutting all arterial streets shall be no less than twenty (20) feet, with the exception of the C-1-D district. . That there are unique or unusual circumstances which apply to this site which do not typically apply elsewhere. The unique or unusual circumstances which apply to the site are the surrounding historic development pattern, the corner lot location, the bend in N. Main St., the configuration of the lot, (specifically the shallow depth) and access to the site. The proposed variance to permit a ten-foot setback from N. Main St. matches the fayade line in the vicinity. The average distance to the historic front fayade lines in this area is approximately ten feet. The subject property is a highly visible location on one of the main gateways in the City and the prominence is accentuated by the location on a corner lot and the bend in N. Main St. From the perspective of traveling south on N. Main St., the side of the building facing Glenn St. will be visible. The site has a short lot depth for a commercially zoned piece of property. There are commercial and employment zoned properties throughout Ashland (e.g. A St., Clear Creek Dr. and Russell Dr.) that allow similar mixed-use types of development, and these areas have been configured with adequate depth and area to accommodate parking on site. Additionally, alley systems and shared driveway systems are in place in these same commercial and employment zoned developments that provide vehicle access and back-up areas outside of the individual lots and building envelopes. There is 50 feet available between the back of the building and the rear (east) property line. The building footprint can not be moved closer to the back (east) property line because the parking area and landscape buffer are at the minimum dimensions. The parking is required to be behind or to the side of the building. Finally, the safest access to the site is from Glenn St. Glenn St. has lower traffic volumes and better visibility than N. Main St. . That the circumstances or conditions have not been willfully or purposely self-imposed. In January 2007, LUBA stated: PA 2006-02354 N. Main St. & Glenn St. Page 8 In Krishchenko /, we found inexplicable the city's apparent conclusion that petitioner's desire to partition the subject property is a "self-created" hardship. We observed that, "[i]f the mere desire to develop property at a density allowed under applicable zoning laws is a self-created hardship, then it is doubtful that any variance to development standards could ever be allowed under... or similar variance standards" In response Krischenko I, the City of Canby identified "a specific action by petitioner, [that created the hardship] not merely a general desire to develop property that all variance applicant's presumably share." LUBA stated: The City apparently understands a "self-created" hardship to exist for purposes of CMC ... when the applicant for a variance has taken an action in the past that is inconsistent with proposed development of the property that requires a variance. We cannot say that that view of CMC ... is inconsistent with the text, purpose or policy underlying that code provision, .... ... the city concluded, petitioner's choice in 2002 to consolidate the two lots to enlarge his existing backyard was inconsistent with, and had the effect of abandoning any expectation under common law or the city's variance procedures to obtain future access... Similarly, the City Council finds and determines that the ALUO variance criteria require that the circumstances or conditions causing the hardship be willfully or purposely self-imposed. The mere general desire to develop the property that all applicants share, is not sufficient for willful self-imposition. An affirmative action by the applicant, (like the lot consolidation in Krishchenko) which occurred in the past, (i.e. past tense) which is inconsistent with or creates the circumstances or conditions is required. In this case, the unusual characteristics of the site, being the surrounding historic development pattern, the corner location, the bend in N. Main St., the configuration of the lot (shallow depth) and access to the site have not been created by an affirmative action of the applicant. Therefore, the circumstances contributing to the request for a variance are not self-imposed. In addition, the ALUO variance criteria are more permissive than traditional, (i.e. variance purposes reference "practical difficulties") as opposed to strict variance terms such as "necessary for the preservation of property rights." The City Council expressly disagrees with the interpretation of the variance criterion proffered by opponents as it relates to self-imposed hardships. The Council finds and determines a hardship is not self imposed merely because there may be an alternative way to build a development without the specific variance requested. In this case, the alternative plan would require an administrative variance to address compliance with historic standards. There is no requirement in Chapter 18.100, Variances, to pursue the lesser of competing variances, (e.g. a standard requiring the minimum variance necessary such as that used in the Administrative Variance to the Site Design and Use Standards, ALUO 18.72.0890.0, and Exception to the Street Standards, ALUO 18.88.090). The "minimum variance necessary" is simply not an approval standard. Similarly, the applicant's stated resignation to the fact that he could develop an alternative, less desirable plan, and therefore, does "not need this variance", for example, for the preservation of a property right, is not an approval criterion applicable to the decision. Neither the enthusiasm (or lack thereof) of the applicant nor the personal desires of the applicant to maximize use of the property in terms of density and intensity are approval criterion for a variance. Clearly, in this case, the difference in square footage (intensity) between the plans is inconsequential. This case is not so crude a choice between compliance with historic standards or compliance with the special setback; the Council strives to give meaning to each and every provision of the Code, reconciling conflicts between competing provisions when necessary. The City Council finds and determines that the hardship is not self created in this case. The Council further finds that when compliance with all the provisions of the City's Development Code creates essentially a no-win situation, the applicant has not created the hardship. See Sommer v. Josephine County (No self-created hardship when lot line adjustment approval condition required rezoning and new zoning district setback precluded proposed development necessitating variance). The City Council, like the City Planning Commission made an informed decision between variance alternatives based upon the peculiarities of the site and superior design. . That the proposal's benefits will be greater than any negative impacts on the development of the adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan ofthe City. PA 2006-02354 N. Main St. & Glenn St. Page 9 The positive benefits of the proposal are maintaining the historic facade line, streetscape and street enclosure of N. Main St. The Historic District Design Standards require historic facade lines of streetscapes to be maintained by locating front walls of new buildings in the same plane as the facades of adjacent buildings. The front fayade line is an important component in creating a historic development pattern and historic streetscape. If the proposed building is setback 20 feet from the front property line, the building will be set back further from the street than the existing historic front facade line on N. Main St. in the vicinity. As a result, the proposed building setback 20 feet from N. Main St. will stand out from the historic facade line and will not be compatible with the historic development pattern. Another positive benefit of the proposed building location at ten feet from the front property line is maintaining the streetscape and street enclosure of N. Main St. The proposed building setback at the required 20-foot special setback for front yards abutting arterials is too far from the sidewalk to provide pedestrians visual interest from the front of the building or a sense of safety from moving vehicles. The streets that pedestrians find most comfortable and safe feeling are those where buildings front directly on or near the street. In contrast, when buildings are set farther from the street pedestrians tend to feel isolated and unprotected. Additionally, the building setback at 20 feet will be further back from the street than most of the front facades on the east side of N. Main St. in the vicinity thereby making the street more open in this location. The building front facade should maintain the historic facade line because vertical surfaces such as building fronts close to the street encourage drivers to slow down. To discount the benefits of the variance, opponents of the variance argue that the historic facade line is better maintained without the variance; this argument is based on excluding construction any more recent than 45 years old. As noted above, the Council rejects this interpretation. Concerns were also raised that approval of the front yard variance may prevent the installation of bicycle lanes on N. Main St. at a future date. County and city maps provide general information about the N. Main St. corridor. Based on county assessor's maps, city aerial maps and the Ashland Street Standards, there appears to be adequate space between the proposed building and the building on the opposite side of the street at 493 N. Main St. for a future reconstruction of N. Main St. as a four-lane Boulevard including parkrows and bicycle lanes. Accordingly, this cannot be identified as a negative impact. Additionally, the street corridor is partially located in the Skidmore Academy Historic District (Le. from the downtown to Maple St.). The Skidmore Academy Historic District is on the National Historic Register, and the associated federal regulations could affect street widening projects in listed historic neighborhoods. The 20-foot setback intrudes into some of the building footprints on both sides of N. Main St. A street widening project could potentially impact the character of the historic district by reducing front yards and removing historic buildings, and thereby altering the historic development pattern . Accordingly, the benefits of the proposed variance will far outweigh any negative impacts on development of adjacent uses. Finally, the intent and purpose of the variance Chapter includes avoiding practical difficulties caused by strict application of the requirements of the Code. No use is allowed not in conformity with the Comprehensive Plan or Code for the subject property. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in the whole record, the Council finds and determines that this criterion is met. V. QUALIFICATIONS OF MEMBERS Alleged Bias and Prejudgment Two parties submitted written bias and prejudgement challenges to the qualifications of Council members and the Mayor. The speaker request provides that such challenges must be made in writing with supporting documentation. One challenge to Councilors Hartzell and Navickas was submitted by citizen Mike Morris, with supporting evidence, a DVD of the City Council's special meeting to consider the appeal. The other challenge was submitted by citizen Art Bullock against the Mayor and Councilor Kate Jackson and included 17 points against the Mayor and 2 against Councilor Jackson. PA 2006-02354 N. Main St. & Glenn St. Page 10 Challenaes bv Mr. Bullock: Mr. Bullock's submittal identifies the following legal standard in his written submittal: Oregon Supreme Court: "The public interest in appearance of propriety over public interest in efficiency is so great in judicial proceedings that readjudication is required regardless of whether decisions were fair when appearance of impropriety is present" 1000 Friends of Oregon v. Wasco County Court, 304 Or. 76, 742 P.2d 391987. The Council finds and determines that the standard identified by Mr. Bullock, the appearance of impropriety, is erroneous. This is a quasi-judicial decision, not a judicial decision. In a quasi-judicial decision, a local decision maker must follow the procedures applicable to the matter before it in a manner that does not prejudice the substantial rights' of the parties. The substantial rights of the parties include 'the rights to an adequate opportunity to prepare and submit their case and a full and fair hearing.' Muller v. Polk County. 16 Or LUBA 771.775 (1988). An allegation of decision maker bias, accompanied bv evidence of that bias, may be the basis for a remand under ORS 197.835(9)(a)(B). Halvorson Mason Corp. v. City of Depoe Bay, 39 Or LUBA 702, 710 (2001) Bias as discussed herein includes both prejudgment and personal bias. In Oreaon Entertainment COrD. v. City of Beaverton. 38 Or LUBA 440. 445 (2000). aff'd 172 Or App 361. 19 P3d 918 (2001 ). LUBA set out the standard for establishing decision maker bias: "To demonstrate actual bias, 'petitioner has the burden of showing the decision maker was biased, or prejudged the application, and did not reach a decision by applying relevant standards based on the evidence and argument presented [during the quasi-judicial proceedings].''' (quoting Spierina v. Yamhill County. 25 Or LUBA 695.702 (1993)). In addition, this burden is significant. That is: In order to succeed in a bias claim, petitioner must establish that the decision maker was incapable of making a decision based on the evidence and arguments of the parties. Sparks v. City of Bandon. 30 Or LUBA 69. 74 (1995). Further, bias must be demonstrated in a clear and unmistakable manner. Schneider v. Umatilla County. 13 Or LUBA 281. 284 (1985). See also Loveioy v. City of Depoe Bay. 17 Or LUBA 51.66 (1988). LUBA recently reviewed the impartiality expectations of quasi-judicial decision makers: As we have explained on many occasions, local quasi-judicial decision makers, who frequently are also elected officials, are not expected to be entirely free of any bias. Friends of Jacksonville v. City of Jacksonville, 42 Or LUBA 137, 141-44, aff'd 183 Or App 581, 54 P3d 636 (2002); Halvorson-Mason Corp. v. City of Depoe Bay, 39 Or LUBA 702, 710 (2001); Oregon Entertainment Corp. v. City of Beaverton, 38 Or LUBA 440,445-47 (2000), aff'd 172 Or App 361, 19 P3d 918 (2001). To the contrary, local officials frequently are elected or appointed in part because they favor or oppose certain types of development. 1000 Friends of Oregon v. Wasco Co. Court, 304 Or 76, 82-83, 742 P2d 39 (1987); Eastgate Theatre v. Bd. of County Comm'rs, 37 Or App 745, 750-52, 588 P2d 640 (1978). Local decision makers are only expected to (1) put whatever bias they may have to the side when deciding individual permit applications and (2) engage in the necessary fact finding and attempt to interpret and apply the law to the facts as they find them so that the ultimate decision is a reflection of their view of the facts and law rather than a product of any positive or negative bias the decision maker may bring to the process. Wal-Mart Stores, Inc. v. City of Central Point, 49 Or LUBA 697, 709-10 (2005), appeal pending. Heiller v. Josephine County (LUBA 2005) Procedurally, after the enumerated bias challenges by Mr. Bullock were summarized, the Mayor and Council Jackson both made and/or agreed to the following statement of impartiality: "I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will make this decision based solely on the application of the relevant criteria and standards to the facts and evidence PA 2006-02354 N. Main St. & Glenn St. Page 11 in the record of this proceeding." Other members of the Council were asked if they accepted the statement and all members did in fact accept the impartiality of the Mayor and Councilor Jackson. No member requested removal based on ALUO Section 18.108.1 OO(B). The Council finds and determines that the Mayor and Councilor Jackson are capable of making this decision and did make their decision based upon the application of the facts in the record as applied to the relevant standards in the Code. Any bias, if any exists at all, that the Mayor or Councilor Jackson may have had was placed to the side while the Mayor and Council performed the duties of their office as related to this quasi-judicial decision. Roberts v. Clatsop County (While alleged statements may indicate a certain predisposition, that is not enough to provide a basis for reversal or remand, in light of his assertions that decision maker would consider the application on its merits and vote with an open mind.) The Council finds and determines that Mr. Bullock has not demonstrated bias or prejudgement on the part of the Mayor of Councilor Jackson in a clear and unmistakable manner. The allegations were not individually addressed at the hearing but the Mayor and Councilor Jackson both stated the allegations were false and misleading. Several other members of the Council noted the allegations were completely irrelevant and inappropriate to the proceedings. For the most part, the allegations submitted by Mr. Bullock are unsupported with reliable verifiable evidence, although certainly verifiable evidence in the form of City video or audio recordings, findings and minutes could have been submitted, it was not provided. For example: (1) Mr. Bullock asserts personal attacks against him during the hearing on the Schofield/Monte Vista LID. Mr. Bullock makes factual assertions and characterizations (e.g. "viciously attacked") in his challenge, but no record of the Schofield LID proceeding, a public meeting, was submitted. No official minutes or other official record was submitted. (2) Similarly, Mr. Bullock alleges that his bias challenge in the same proceeding was arbitrarily limited to three minutes, yet no evidence no support this allegation was submitted. (3) Mr. Bullock also alleges in the same hearing that he was denied a right to speak on the merits. Again, no evidence was submitted. (4) Again, Mr. Bullock alleges he was denied a right to make oral presentations of bias and denied his right to speak. No evidence supports this allegation. (5) Mr. Bullock attributes certain statements to the mayor, including public pressure to stop him from speaking and "shut him up". No verifiable evidence supports this allegation. (6) Again without verifiable evidence, Mr. Bullock asserts another personal attack by the Mayor after the close of the record in the Schofield LID project, and further (7) asserts he had no right to rebut the statements of the mayor made during deliberations in that proceeding. (8) Mr. Bullock alleged denial of an opportunity to make oral Conflict of Interest challenges from the floor during the Hellman Bath hearing before the City Council in 2006. No evidence to verify this allegation was submitted, despite the existence of written findings, minutes and DVD records of the unappealed decision. (9) Mr. Bullock alleges the Council and not the mayor has the authority to control his conduct at meetings in making oral challenges from the floor. (Despite the Council's adoption of Roberts Rules of Order and the clear authority of the Presiding Officer to control the conduct of non-members) (10) Mr. Bullock again asserts the Mayor denied his right to orally make a conflict of interest challenge in the Helman Baths project. (11) Mr. Bullock identifies an alleged error in the Helman Bath project related to his alleged right to point out alleged errors from the floor. (12) Mr. Bullock alleges inter alia the mayor conspired to violate the 120 day rule in the Park Street Condo case and blame him for the delay which led to the mandamus proceeding. These allegations are completely unsupported. (13) Mr. Bullock alleges he reported misconduct by City employees in 2004 and was subjected to verbal assaults. His allegations are unsupported by verifiable evidence. (14) Mr. Bullock alleges the Mayor prevented him from presenting audio-visual matters in a 2006 meeting. This allegation is not supported with verifiable evidenced. (15) Mr. Bullock asserts failure of the Mayor to supervise the Public Works Director. The allegation is irrelevant and unsubstantiated. (16) Mr. Bullock alleges the Mayor is responsible for opposition to Mr. Bullock's position on the proposed Charter amendment. This allegation is unsubstantiated. As regards Councilor Jackson, Mr. Bullock makes several allegations, without verifiable supporting evidence, that Councilor Jackson (1) yelled at him during an encounter while Mr. Bullock was campaigning against the proposed Charter amendment, a measure Councilor Jackson supported. Councilor Jackson acknowledged that they had contact and that she was concerned for her safety given Mr. Bullock's behavior. Mr. Bullock also alleges that Councilor Jackson is incapable of making the decision because she ignores the law and has prejudged this matter because she will ignore the 20 foot setback which is the subject of the variance. This allegation is unsubstantiated. Mr. Bullock was merely a participant in the proceedings below, and is not the applicant or appellant in this proceeding. His position in his challenge appears to be that because the Mayor and Councilor Jackson have taken or have political PA 2006-02354 N. Main 81. & Glenn 81. Page 12 positions which are contrary to his positions, they should be disqualified from participation in any matter in which he chooses to participate. In the case of the Mayor, Mr. Bullock's disagreement appears to be primarily in the area of the proper manner for the conduct of quasi-judicial proceedings. The Council finds and determines that the Mayor and Councilor Jackson are expected to have political positions as elected public officers. That their positions may at times be contrary to political positions taken by Mr. Bullock, a citizen of the City of Ashland and that this fact does not demonstrate in a clear and unmistakable manner an inability on the part of these elected officials to apply the facts to the law in a quasi- judicial matter before the City Council. The Councilor and Mayor declared their intent to apply the law to the evidence in the record and performed their duty. As regards the conduct of public meetings, the Mayor, as presiding officer, has clear authority to control the conduct of non-members. Nonmembers who disrupt public meeting may be removed pursuant to Roberts Rules of Order or Criminal statutes. Mr. Bullock is not a member of the governing body, and must comply with the directions of the presiding officer. That Mr. Bullock feels he should have more opportunity to participate in quasi-judicial proceedings, specifically to orally making challenges to members or "points of order" from the floor, or question members of the Council, is not personal bias against Mr. Bullock but simply the normal conduct of a public meeting by the Presiding Officer. Mr. Bullock, as a non-member, cannot assert bias and prejudice based on denial of the rights and powers to him of rights afforded duly elected members of the Council. The Council finds and determines that this challenge to the qualifications of Councilor Jackson and Mayor Morrison is not well founded. It is unfortunate that at times prejudicial or inflammatory material is introduced into the record of land use proceedings and other government proceedings. Quasi-judicial decision makers, being human may be tempted to react to such material or base the decision on improper matters. Accordingly, It is important that decision makers exercise discipline and set aside such inflammatory or prejudicial matters and exercise their quasi-judicial duties properly. This can be especially difficult to volunteer Council members in public service, when as in the challenge submitted by Mr. Bullock, is in the manner of a personal attack. Accordingly, the Council expressly finds and determines that although Mr. Bullocks written materials are inflammatory and prejudicial, the Council expressly rejects such improper considerations in applying the facts in the record to the applicable standards in the ALUO. ChallenQes bv Mr. Morris: A prejudgment challenge was made against Councilor's Eric Navickas and Councilor Cate Hartzell by Mike Morris. Procedurally, after the challenges were summarized, both Councilor Navickas and Hartzell made and/or agreed to the following statement of impartiality: "I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will make this decision based solely on the application of the relevant criteria and standards to the facts and evidence in the record of this proceeding." Other members of the Council were asked if they accepted the statement and all members did in fact accept the impartiality of the Councilors. No member requested removal based on ALUO Section 18.108.1 OO(B). The Council finds and determines that Councilor Hartzell and Councilor Navickas are capable of making this decision and did make their decision based upon the application of the facts in the record as applied to the relevant standards in the Code. Any bias, if any exists at all, that the Councilors may have had was placed to the side while the Councilors performed the duties of their office as related to this quasi-judicial decision. Roberts v. Clatsop County (While alleged statements may indicate a certain predisposition, that is not enough to provide a basis for reversal or remand, in light of his assertions that decision maker would consider the application on its merits and vote with an open mind.) The Council finds and determines that Mr. Morris has not demonstrated bias or prejudgement on the part of the Councilors in a clear and unmistakable manner, in light of the assertions of impartiality made by the members at the hearing. While the allegations were not individually addressed at the hearing, both Councilors specifically stated the they would make the decision based on the applicable law and the evidence before them. For the most part, the concise allegations of prejudgement submitted by Mr. Morris are well supported with reliable verifiable evidence, that being the DVD of the City Council's public meeting to appeal the decision of the Planning Commission. Mr. Morris identifies verifiable statements by time code made by Councilor Hartzell which indicate a pre- disposition based on public safety concerns to maintain the twenty foot special setback. Similarly, Mr. Morris identifies PA 2006-02354 N. Main St. & Glenn St. Page 13 verifiable statements by time code made by Councilor Navickas which indicate a preference for the twenty foot setback over historic standards, an issue in the variance portion of the appeal. On the basis of the verifiable statements made at the public meeting to call up the appeal, the allegations of prejudgment on their face, without more, are substantial. However, in the context of the actual appeal hearing, and the direct question to the Councilors of whether the Councilors would set aside whatever predisposition or bias they had, and make the decision based upon the facts as applied to the law, the Council finds and determines that the challenged members are qualified to make the decision and have properly exercised their duties in quasi-judicial proceedings as required by law. VI. FINAL ORDER In sum, the City Council concludes that the proposal represented in Planning Action 2006-02354, an application for Site Review approval to an office building, an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property frontage, and a Variance to reduce the special setback requirement for front yards for properties abutting arterial streets has satisfied all relative substantive standards and criteria and is supported by evidence in the whole record. Accordingly, based on the above Findings of Fact and Conclusions of Law, the incorporated findings of the Planning Commission and the findings provided by the applicant, and based upon the evidence in the whole record, the City Council hereby APPROVES Planning Action #2006-02354, subject to strict compliance with the conditions of approval, set forth herein. Further, if anyone or more of the conditions below are found to be invalid, for any reason whatsoever, then Planning Action #2006-02354 is denied. The following are the conditions and they are attached to the approval: 1) That all proposals of the applicant are conditions of approval unless otherwise modified here. 2) That the applicant shall submit an electric distribution plan including load calculations and locations of all primary and secondary services including transformers, cabinets and all other necessary equipment. This plan shall be reviewed and approved by the Ashland Electric Department prior to building permit submittal, and the approved plan submitted with the building permit application. Additionally, the placement of any portion of the structure in the public utility easement shall be reviewed and approved by the Electric Department. Transformers and cabinets shall be located in areas least visible from streets and outside of vision clearance areas, while considering the access needs of the Electric Department. 3) That the engineered construction drawings for the public sidewalk improvement shall comply with approved plans, and submitted for review and approval of the Ashland Planning and Engineering Divisions prior to issuance of a building or excavation permit. The concrete color and surface finish shall be the city standard in accordance with the Ashland Engineering Specifications. Additionally, evidence of approval of the Oregon Department of Transportation for any work in the jurisdiction of the state shall be submitted with the engineered construction drawings. 4) That the required pedestrian-scaled streetlight shall consist of the City of Ashland's commercial/historic streetlight standard, and shall be included in the utility plan and engineered construction drawings for the public sidewalk along Ashland Street. That the property owner shall install public pedestrian-scaled street lights to City specifications on the N. Main St. and Glenn St. street frontages. 5) That a final utility plan for the project shall be reviewed and approved by the Engineering Division and Building Divisions prior to issuance of a building permit. The utility plan shall include the location of connections to all public facilities in and adjacent to the development, including the locations of water lines and meter sizes, sewer mains and services, manholes and clean-outs, storm drainage pipes and catch basins. 6) That if a fire protection vault is required, the vault shall not be located in the sidewalk. 7) That all public improvements including but not limited to the sidewalk, street trees and street lighting shall be PA 2006-02354 N. Main St. & Glenn St. Page 14 installed in accordance with the approved plan prior to issuance of the certificate of occupancy. 8) That the plans submitted for the building permit shall be in substantial conformance with those approved as part of this application. If the plans submitted for the building permit are not in substantial conformance with those approved as part of this application, an application to modify this Site Review approval shall be submitted and approved prior to issuance of a building permit. 9) That a Tree Protection Plan in accordance with the requirements of 18.61.200 shall be submitted for review and approval of the Staff Advisor with the building permit submittals. The Tree Protection Plan shall include an analysis from the project landscape architect or certified arborist of the impact of the installation of the pervious paving on the walnut tree to be preserved. 10) That the recommendations of the Ashland Tree Commission with final approval of the Staff Advisor shall be addressed prior to the issuance of a building permit. The recommendations shall be included on a revised tree protection plan, landscaping plan and final irrigation plan at the time of submission of building permit. Landscaping and the irrigation system shall be installed in accordance with the approved plans prior to issuance of the certificate of occupancy. 11) That a Verification Permit shall be applied for and approved by the Ashland Planning Division prior to site work, building demolition, and/or storage of materials. The Verification Permit is to inspect the installation of tree protection fencing for the walnut tree in the southeast corner of the property. The tree protection shall be chain link fencing six feet tall and installed in accordance with 18.61.200.B. 12) That public utility easements on the property shall be shown on the building permit submittals. No portion of the structure shall intrude into a public utility easement without approval by the Ashland Engineering Division. 13) That the finished floor elevation (FFE) of the building shall be at a minimum, the same elevation as the public sidewalk in front of the building in the N. Main St. right-of-way. Verification of the FFE being at or above the elevation of the public sidewalk shall be submitted with the building permit for review and approval by the Staff Advisor. 14) That mechanical equipment shall be screened from view from N. Main St. Location and screening of mechanical equipment shall be detailed on the building permit submittals. 15) That the windows shall not be heavily tinted so as to prevent views from outside of the building into the interior of the building. 16) That the building materials and the exterior colors shall be identified in the building permit submittals. Bright or neon paint colors used extensively to attract attention to the building or use are prohibited in accordance with the Detail Site Review Standards. 17) That exterior lighting shall be shown on the building permit submittals and appropriately shrouded so there is no direct illumination of surrounding properties. 18) That a comprehensive sign program in accordance with the requirements of Chapter 18.96 shall be developed for the building and submitted for review and approval with the building permit submittals. That a sign permit shall be obtained prior to installation of new signage. Signage shall meet the requirements of Chapter 18.96. 19) That the building size and number of residential units shall be revised so that the total number of required off-street parking spaces does not exceed the six spaces provided (i.e. five on-site spaces and one on- street parking credit). P A 2006-02354 N. Main St. & Glenn St. Page 15 20) That the recommendations of the Historic Commission with final approval of the Staff Advisor shall be incorporated into the building permit submittals. 21) That the requirements of the Ashland Fire Department including fire apparatus access and fire hydrant flow requirements shall be satisfied prior to issuance of a certificate of occupancy. 22) That the new structure shall meet Solar Setback B in accordance with Chapter 18.70 of the Ashland Land Use Ordinance. Solar setback calculations shall be submitted with the building permit and include the required setback with the formula calculations, an elevation or cross-section clearly identifying the height of the solar producing point from natural grade and the solar setback in site plan view called out from the solar producing point to the north property line. 23) That a seven foot bicycle and pedestrian easement shall be granted to the City of Ashland along North Main that will allow the city, or designee, to construct, reconstruct, install, use, operate, inspect, repair, maintain, remove and replace access improvements, including but not limited to street, sidewalk, bike path and landscaping improvements. (The Applicant agreed to this condition) Ashland City Council Approval Date: f//t,!fJ7 ~ Signature authorized and approved by the full Council this.5" day of June, 2007 CI Date: ,J~nL(;'ldDD7 PA 2006-02354 N. Main St. & Glenn St. Page 16