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Home My WebLink About2007-0717 Documents Submitted at Meeting July 17,2007 CITY OF ASHLAND Jackson County Board of Commissioners c/o Mr. Danny Jordan, County Administrator Jackson County Administrator's Office 10 South Oakdale, Rm 214 Medford, Oregon 97501 . RE: Remand hearing 2006-8 Rural Use Amendments Dear Commissioners: The City of Ashland requests delay in the adoption of the LRP2005-0008 (Ordinance 2006-8) to facilitate Goal 2 coordination and discussion of the proposed changes in the context of the Regional Problem Solving Process and City - County Urban Growth Boundary Agreement. If the County does proceed the City requests that the County reject the Walker amendments in favor of the Jackson County Planning Commission's recommendations. Coordination: On July 5, 2007 the City of Ashland received a notice of a July 18, 2007 hearing concerning the subject rural use amendments. This is the only attempt at coordination Jackson County has made with the City of Ashland about this amendment. The City's objection at LUBA was that the County failed to coordinate with affected local governments as required by Goal 2. Specifically: The obligation imposed by Goal 2 and ORS 197.015[(6)] goes beyond the county's obligation to address and demonstrate compliance with other applicable approval criteria. The coordination obligation requires an exchange of information and an attempt to accommodate the legitimate interests of all affected governmental agencies [citation omitted] We disagree with the County's characterization of the LUBA remand as only concerning an error by the County in accepting testimony and evidence after the land use public hearing was closed. Goal 2 coordination mandates that the County engage in a meaningful exchange of information and attempt to accommodate the legitimate interests of the cities in Jackson County, including the City of Ashland. Notice of a public hearing is not coordination. The City of Ashland requests that the County formally coordinate with affected governmental agencies, not just conduct a hearing. The City and the Rogue Valley Council of Governments have requested that the County extend early notice and full information to member cities so our staff can comment on the proposals. The City and RVCOG requested delay to exchange information about the impacts of the Walker Amendment. Ashland specifically asked for "discussion of such additional rural development in the context of the Regional Problem Solving effort." [ORS 197.652.] In addition, Ashland requested that "[t]he types of growth that would be allowed by this ordinance. . . be debated in the same way as changes in municipal urban growth boundaries are discussed," (i.e., per the Urban Growth Boundary Agreement). The City again requests that the County delay this amendment to allow time to exchange information and address the City's concerns in the context of the Regional Problem Solving process [ORS 197.652] and the Urban Growth Boundary Agreement, (adopted by County ordinance). (UGBA, par 11A. requires agreement on major policy changes impacting "Areas of Mutual Concern" and an "Area of Future ADMINISTRATION 20 East Main Street Ashland, Oregon 97520 www.ashland.or.us Tel: 541-488-6002 Fax: 541-488-5311 TTY: 800-735-2900 r~' PRINTED ON RECYCLED PAPER Urbanization.") Conducting a hearing and labeling the City of Ashland's concerns as "speculative" and "inconsequential" is not Goal 2 coordination. Jackson County Planning Commission: The City of Ashland requests that the County follow the density limitation recommendations of the Jackson County Planning Commission. Changing the minimum lot size required for a dwelling from 20 acres to 10 acres dramatically alters the proposed legislation. It was this amendment, with the County's failure to discuss the potential impacts with the affected cities, which caused the City of Ashland and others to appeal the decision to LUBA. Prior to the amendment which reduced the minimum lot size to 10 acres, the City of Ashland was much less concerned with the proposed legislation. The last minute timing of the amendment precluded meaningful participation by all interested participants, including affected local governments. Substantial Evidence: The County's Rural Use Amendment with the 10 acre minimum lot size Amendment is not supported by substantial evidence in the record or by the findings adopted by the County. For example, the incorporated JCPC Findings, paragraph 4.2 state that: Thus, a 20 acre minimum lot size Rural Use zone fulfills the intent of the Comprehensive. Plan related to limiting sprawl and its undesirable effects. The supplemental findings adopted by the Board do not address the change to ten acres as it relates to limiting sprawl. Therefore, the findings of consistency with the Comprehensive Plan's policies related to "rural sprawl" based upon 20 acre minimum lot sizes, are not sufficient to support the decision. Similarly, the Planning Commission's findings [Par. 1.4] reflect that the modest opportunity for land division at a 20 acre minimum lot size would not significantly alter or destabilize resource management on productive farm and forests lands. While a ten acre minimum lot size may have been considered by the Planning Commission, it was rejected. The Planning Commission findings incorporated into the decision were in the context of significantly different text, designed to reduce adverse impacts on resource uses and the environment. (e.g. the Walker amendment removed, in addition to items addressed below, "Extension of public roads through resource lands will not be necessary to accommodate the proposed change of land use"). Because the findings and evidence support the recommendations of the Planning Commission, and the City urges the County to return to this reasoned alternative. Public Facility and Service Impacts The City's previous comments in the record, [September 19, 2006 letter incorporated by this reference], addressed the public facility and service impacts of the proposed amendments, as well as adverse effects of sprawl. Specifically, the City remains concerned about the impact on transportation systems, schools, public safety and water availability. The County's response was to label such impacts speculative, exaggerated, inconsequential, and not worthy of a reply. The City's September concerns about the adverse effects of unplanned non-urban sprawl development and the related impacts on transportation, emergency services, and schools remain. These concerns are based on the Walker amendment's removal of the following limitations and considerations in map designation and density criteria: ADMINISTRATION 20 East Main Street Ashland. Oregon 97520 www.ashland.or.us Tel: 541-488-6002 Fax: 541-488-5311 TTY: 800-735-2900 C. All weather access is available that directly connects to a County road, or State highway of appropriate capacity and construction, and the proposal is otherwise consistent with the County's access and transportation facility plans; (removed in its entirety) . D. Public services and utilities needed to serve the development (e.g. police and fire protection and road capacity, recreation facilities and parks) are available or can be made available; and (removed and replaced with only fire service protection) E. Compliance is demonstrated with environmental and health regulations concerning water and air pollution, solid waste disposal, community or public sewage disposal, and, where applicable, individual systems for sewage disposal; and (removed in its entirety) F. (removal of most of the criteria and standards for water supply testingfor land divisions) G. (removal of density limitation in ASC 90-1) Additionally, the City remains concerned with the impacts of increased density (addition ofRU 10, and RU 15), the reduction from 40 to 20 acres in paragraph 4. A, (mean parcel size criteria) and the elimination of "fully protects" relative to identified Goal 5 resources in favor of a case by case ESEE analysis prepared by development applicants (possibly inconsistent with Plan mandate to use 1-40 acre maximum density if clustering is not used). The City of Ashland believes that the existing County Code is sufficient because it allows property owners to apply for a single family dwelling in all of the areas affected by this ordinance. The proposed amendments exacerbate the existing rural development in Jackson County, which the County's own Plan refers to as "sprawling, inefficient, and environmentally detrimental". If the County must change the Code, the City of Ashland supports further discussion and refinement of the effort made by the County Planning Commission. Sincerely, John Morrison Mayor City of Ashland Attachment (September 19, 20061etler) c: Ashland City Council Martha Bennett, City Administrator David Stalheim, Community Development Director ADMINISTRATION 20 East Main Street Ashland. Oregon 97520 www.ashland.or.us Tel: 541-488-6002 Fax: 541-488-5311 TTY: 800-735-2900 nsen:':FW: Defendln Pa e From: "Cate Hartzell" <cate@mind.net> To: "'Richard Appicello'" <appicelr@ashland.or.us>, "'Barbara Christensen'" <barbarac@ashland.or.us> Date: 7/17/200712:30:19 AM Subject: FW: Defending your Decisions Please put this into the record. I read the first sentence and assume we still cannot take ex parte contact on this matter. Cate From: George Kramer [mailto:gkramer@jeffnet.org] Sent: Monday, July 16, 2007 10:19 AM To: george@preserveoregon.com; morrisoj@ashland.or.us; davidchapman@ashlandhome.net; ahardesty88@charter.net; cate@mind.net; katejackson@opendoor.com; ericnavickas@hotmail.com; russcity@zintech.org Cc: bennettm@ashland.or.us; 'David Stalheim' Subject: Defending your Decisions Dear Mr. Mayor and Members of the Council, Recently Council approved by a 4-3 vote to uphold the Planning Commission's approval of a variance to the setback requirement for a proposed commerical project at the corner of North Main and Glenn streets. It has recently been brought to my attention that certain local individuals have appealed this decision to LUBA. It has further been brought to my attention that the City does not intend to take any active role in defending the Council's decision, but will rather merely submit the record and allow it to stand on its own merits. Is this in fact the case? Is this now standard city policy? I can appreciate the cost savings inherent in not providing legal representation at these increasingly frequent LUBA hearings. In this case, however, since it was Council itself which called the PC approval up for review, I think it fair to say that the City itself created many of the issues before LUBA. You are all aware of my concerns about the planning process in recent years. If Council is going to take the unsual step of calling projects up for review on its own whim, I believe you owe it to the applicants, and to the Planning Commission, to take an active role in defending such decisions before LUBA. Doing otherwise is simply irrsponsible and does nothing to impart any integrity to our planning process or the decision of the Planning fCity~f A~h/a'id -} ~ f.a ....0 O;og EXh;b' it I Exh;ti(# 7-6/ . PAil. ~. 0/ "..... l D3:e~<~7, 'St~ -., ...j n - FW: Defendin our Decisions .~~ge. 2 Commission. I would appreciate a response as to both the accuracy of my understanding and the city's policy in this area. George Kramer Ashland, Oregon No virus found in this outgoing message. Checked by AVG Free Edition. Version: 7.5.476/ Virus Database: 269.10.6/902 - Release Date: 7/15/2007 2:21 PM J I -- c:...~ - - "- - ~....~ ~~ ~ 'J ~ 1:0 LiI ~ a '" ..t.~ .. .,. .:!< ~ ~I .. ~o;;..l"~ ....1"- ,,f ~. ~ _ ._ ~...: . It: Q .~~ ,L ~~ . ;_...~':a.- . -I"';:;. "'=:_"._;:;;~~'!j, "-'?:.;;Y "~,lf.;~"""'~ ~ ~-A~.~~i - ~""'}r",.f/a:J! I:l ,,'":! E f..h ,.bi'& '{, I" ~: (\ .1\' u "\" ~ ~'- '"""'11I, . <\,,. ~ ~. ~-~~..... ~\ "l'~ ~ "." . -'.J~~....1 !lIl1:l ~..." . ~ "ffl_UA~li1 : I; ,~ ",,10 D 1UI~.. ''}4 t;lo~ ,p:lI --,,~.'" -- -Q - - IIZ:l !lli ~ \~ 1(S ......... ~ ~ ~ ~\ ~ ~ (3 .J", f.""'" 1.0' ~)} (,j G (3 ~ :~ 1 ." ~ · ~ ~ . -j."~ ~r' ~r:.".. J:fJ '0 .~t 'fl I. 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'"'{') .J' 'o-?- ,'I ~ en ., C:, D ~ Y' ') ,:; ,*.-:0: r w ~ ~ ~ "" ~ ~ ~ . "" J)l w \ ~ ...... ~ - " ~ L- II BEFORE THE ASHLAND CITY COUNCIL """"""'---,,0; --1 In Re: Appeal of Planning Commission Decision of 3/27/07 approving a Physical and Environmental Constraints Review Permit for the Lynn and Bill McDonald property (P A #2006-01784) MEMORANDUM OF BONNIE BRODERSEN, APPELLANT. History of Proceedine:s Applicants were issued a building permit for a single-family home in October, 2004 on an undeveloped property, without inftastruture, having a depth of 295 feet and a width of 80 feet. In December, 2004, Appellant, Bomrle Brodersen, appealed the Planning Staff decision to issue a building permit to Applicants to the Oregon Land Use Board of Appeals (hereinafter LUBA). In April, 2005 Applicants, Lynn and Bill McDonald, and the City voluntarily agreed to a remand of all issues to the City. One of the issues raised by Appellant in the LUBA appeal was that the City had not required Applicants to obtain a Physical and Environmental Constraints Review Permit for development in a riparian and floodplain corridor. Upon remand, the City required Applicants to submit additional information as required for an application for a Physical and Environment Constraints Review Permit. The Applicants were required to submit additional information but were not required to submit a new local land use application as evidenced by the fact that they did not pay any application fees, which are required for new applications. Approximately, one and one-half years later, on September 8, 2006, Applicants submitted additional information. Planning staff granted preliminary approval for a Physical and Environment Constraints Review Permit on November 22, 2006 and Appellant appealed that decision on December 4, 2006. Following a public hearing, the Planning Commission, with conditions, upheld Staff approval of a Physical and Environmental Constraints Review Permit. In the same document, dated March 27,2007, in which the Planning Commission (hereinafter PC) issued an Order and Findings concerning the Physical and Environmental Constraints Review Permit, it addressed other issues (Assignments of Error) that had been appealed to LUBA. AooUcants Have failed to Incorporate Orders of the Plan nine: Commission into its New Develooment Plan. Submitted Subseouent to the PC Hearine:. alone: with a new Toooe:raohic Survey and a new Preliminary Gradine: & Drainae:e Plan After the PC hearing, Applicants changed their development plan based on filets different :from those presented to the Commission. A surveyor hired by Appellant determined that Applicants' proposed drive crossed a section TL 412 owned by Appellant. Applicants now propose to place part of their paved drive through the middle of the riparian preservation area, requiring removal of riparian vegetation, and within a few feet of the top of the bank. Planning staff incorrectly '1'ecommends [that City Council] focus on the Planning Commission "Findings of Fact" to come to a decision. However, the facts have changed substantially since the Planning Commission hearing and Planning Staffmakes a sham of the Asbland city Council Planning Commission hearing when they arbitrarily approve a Plan of Development substantially changed from that ordered by the Planning Commission and when the proposed plan violates specific Orders of the Planning Commission as follows: 1) The Planning Commission chair noted that the Code states that Wrights Creek is not a storm drainage facility [AMC 4.27.020(0)] and the PC ordered that the "storm drainage from the roof and driveway shall be directed to a retention and water quality treatment system." (Record p 34) Applicants' revised development plan shows the storm drainage being piped into Wrights Creek. 2) The PC ordered that "the public utility trench and lines shall be moved more than 20 feet from the top of the bank ofWrights Creek." (Record, p 34) However, Applicants' revised plan places the utilities within 20 feet from the top of the bank - in the riparian preservation area This area is also in the Floodplain Corridor. 3) The Planning Commission ordered "that all proposals of the Applicant are conditions of approval" unless specfically modified by the Commission. (Record p 34) Subsequent to the PC hearing Applicants made a significant changed the locatio of part of their driveway in the public Grandview Drive ROW. This new proposed driveway will be very close to a very tall old pine tree (25" according to Applicant's topo map), and it appears the drive will cross the drip line. This pine tree is important to the integrity of the riparian area The permit application does not show the distance between drive and the pine nor the distance between the pine and a proposed utility trench. Applicants have not shown they will meet the provisions of the Ashland tree ordinance when they construct in the riparian area Further the proposed driveway will make the area more unsafe at the Grandview Drive area. I. STAFF HAS APPROVED CONSTRUCTION OF A PRIVATE DRIVEWAY ON PUBLICALLY-OWNED LAND IN THE CITY ROW 1. Planning has approved construction of a PRIVATE driveway on a riparian preserve in a public right of way (hereinafter ROW) which was dedicated to the City of Ashland for public road purposes and not for a private driveway. Applicants propose to construct a new part of their driveway in the riparian preservation area which has been dedicated to the City as a public ROW. The construction of this part of their driveway, which would not occur on their property, would be entirely in a public ROW, open to the public, and on TL 411 to the east of Applicants' property. Applicants are proposing to pave over riparian vegetation by placing part of the driveway directly in the vegetated riparian area. The proposed drive is not perpendicular to Grandview Drive. It appears from the Driveway Plan that part of the driveway will run parallel to Grandview Drive, and at one point, abut it. (See Grading & Drainage Plan) Note that the Grading plan does not show a 20' wide drive in the ROW area, which 20' drive is mandatory pursuant to ALUO 18.76.060(B). In essence, Staff has approved using the property the City acquired from a previous property owner -- as a requirement of partitioning -- and allowing Applicant to use it for private purposes. Whether the City has Jurisdiction to take property from an individual for public use and allow extensive private use of that property by a different individual, is another matter that hasn't been researched, but needs to be. 2 Ashland City Council 2. Permitting placement of a private driveway in a public ROW which is open to the public and abuts a public street (Grandview Drive) is historically unprecedented in the City The City Engineer's office confirmed that the City has never given an encroachment permit to a place a private driveway in a ROW that has been opened to the public. Since 1989 there have been two instances (in 1989 on an unopened portion of Spring Creek Dr. & 1993 across the unopened ROW of Bush St. & Scenic Dr.) where the City permitted encroachment of a private drive on the public ROW. In both cases the ROW was unopen to the public, the driveway construction was not extensive and did not include paving and the ROW was not in a protected Riparian Preservation area. Also in those cases the ROW abutted the property requesting the permit. The ROW in which Applicants propose to construct their private driveway, is open to the public and has been used by the public for many years. Furthermore, if the City permits Applicants to build their private driveway in this open ROW, the City will be taking away access in that area that tax lots 411 and 412 have over the ROW. It would be unprecedented for the City to permit over 1100 sq. ft. of private driveway to be constructed in the publically-owned ROW which has been opened to the public and abuts a city street - Grandview Drive -- and which is in the Riparian Preservation protected area. This is a slippery slope that the City should avoid. Considerations a. Necessary findings In Harshman v. Jackson Co., 41 Or LUBA 330 (2002) Luba stated: "Where, as is the case here, driveway improvements are required to ensure emergency vehicle access as mandatory approval criteria for permit approval, the hearings officer was required to find that the required improvements exist or that it is feasible to construct them (Citing Highland Condominium Assoc v. City of Eugene, 37 Or LUBA 13, 30 (1999). However, in this case there was focused testimony ...that raises legitimate questions concerning whether the applicant can make the required driveway improvement. In that circumstance, it is not adequate for the hearings officer to ignore such legitimate questions and simply impose a condition that the necessary improvements be constructed....The hearings officer must address those legitimate questions in his findings and demonstrate that notwithstanding those questions, it is nevertheless reasonable to assume the rquired improvements can be made. The hearings officer's failure to do so is error." If Applicants' proposal to build part of their driveway on the public Grandview ROW is approved, TL 411 (flag lot to the east of Applicants' property) will no longer have frontage on a public road. Further, the SW comer of Appellant's lot (TL 412) which now fronts on the public ROW, will be hemmed in by Applicants' private driveway. It is the public ROW which gives access to TL 412 at the SW comer of the tax lot. There are several issues to be considered: Can the City restrict Appellant Brodersen's access to the SW comer of her TL 412 by allowing a private driveway to be constructed in the ROW which abuts TL 412? Can the City allow private use of a ROW dedicated for public use (street purposes)? Is the ROWan easement or is it held in fee simple? If the City permitted the construction of a private drive in the public ROW would someone accesssing TL 412 from the southwest comer be trespassing when they cross a private drive built in a public ROW? Or is a private drive constructed on a public ROW a public drive? People jog and walk down this area of Grandview Drive. If they walk in the City-owned ROW where the driveway is built will that be a trespass on private property? In other, words, by 3 Ashland City Council allowing an essentially irreversible use -- a private drive in the public ROW - has the City foreclosed use of that area by the public? And there are liability issues to consider: In the event of an accident in the area could the City be held liable - especially if it permits the construction of a driveway in a way which makes the area unsafe or do the Applicants shoulder complete liability? Is the City entitled to compensation when the City allows for an (essentially) irreversible use of its public ROW? Can the City approve an irreversible private use of its public ROW when the dedication of the ROW was a requirement for approval ofa partition, but specifically for PUBLIC purposes? Does development in a riparian area, in violation of the ALVO, enhance the Planning Commission's core mission ofsustainability? Is private development in a publically-owned riparian area consistent with the Parks & Recreation Commission's goal to purchase all Riparian preservation areas within the City? Construction ofa 20' wide private drive (approximately 1100 sq. ft.) in a protected riparian area in a public ROW open for public use, is unprecedented in the City. The foregoing issues should be considered before the City embarks on a path of giving up a ROW for private use in the riparian preservation area. b. Liability Even if Applicants were able to get permission to construct their driveway in the City ROWand riparian area, they still would not be able to meet the standards of the Code to expand the drive to meet the 20 foot flag driveway standard for a drive shared by two properties without a part of the driveway spilling over onto Grandview Drive (a public roadway). The property north of the dirt drive is private property and unavailable for expansion. To expand the driveway to the south, Applicants propose to construct the driveway over the vegetated riparian area owned by the City near the point where the dirt drive splits off from Grandview Drive. To get a 15' paved driveway with 2 -1/2' of "unobstructed" shoulder on each side, it appears that Applicants would have to extend the drive so that it abutted and, for a few feet, ran parallel to Grandview Drive. This would make for a dangerous situation at that area of Grandview Drive. 2. An existing intrusion does not give the City the ability to violate the current land use ordinances by expanding on that intrusion or by theorizing that since there's already an intrusion, the city wiD allow further degradation to the riparian/floodplain area. The dirt drive that splits offfrom Grandview Drive, forming a V, (See Topographic Survey Map - received by Planning Staff on 7/9/07) is on land dedicated to the City of Ashland, and land owned by Mrs. Hulse (whose property adjoins Applicants' property) and on land owned by Appellant Brodersen. The City must enforce the current land use ordinances and not expand on a current violation of the Code, which occurred before Ashland had an ordinance protecting the Riparian and Floodplain areas. Any expansion ofuse by additional homes or further development of the driveway into the riparian area violates the City's ALVO's and the City's stated Comprehensive Plan Policy of preserving riparian areas in their natural state. The fact that a 10' wide dirt drive exists in the area is irrelevant and should not be part of the Council's considerations. The drive could not be constructed today under the current ALVO"s. A pre- existing incursion does not give the City the authority to expand on that incursion in violation of the ordinances. 4 Ashland City Council Ashland residents want GoalS Resources protected and maintained in their natural state. Undoubtedly, residents of Ashland want stringent protection of the City's riparian areas. According to an Ashland Daily Tidings article, "The Parks Department has a goal of acquiring much of the riparian land in Ashland city limits." (article, Jan. 9,2007) Fortunately. the City does not need to eJq>end City resources to purchase this Wrights Creek riparian corridor because it already owns it. But Staffhas approved degradation of the riparian area and private use of the area with the construction of Ap,plicants' private driveway. More recently, articles about "sustainability as a new planning priority" and children helping to restore a damaged wetland/creek on private property have appeared in the Tidings. These are activities which reflect our community values for preserving our natural resources It's incongruous to have, on the one hand, children working to replant and restore vegetation along a stream, and on the other hand, the City permitting developers to put a driveway in a City-owned, protected Riparian area. Even if the ALUO's permitted construction of a driveway in the protected riparian preservation area, which they do not, there is a strong community mandate to retain and protect our Riparian areas. It is incumbent upon the City to enforce the provisions of the Land Use Ordinances and the Comprehensive Plan that protect our valuable natural resources from incursion by development. II. THE PROPOSED DEVELOPMENT DOES NOT MEET THE STANDARDS OF ASHLAND LAND USE ORDINANCES FOR RIPARIAN AND FLOODPLAIN CORRIDOR LANDS PART I 1. Introduction Part of the land that will be developed under Applicant's proposal is in a Riparian Preservation Area and Flood Plain Corridor Lands area requiring Applicant to obtain a Physical and Environmental Constraints Review Permit. But as a matter of law, a Physical and Environmental Constraints Review Permit cannot be issued, because Applicants development proposal does not meet the mandatory provisions of BOTH the Riparian Preservation ordinance and the Floodplain Corridor ordinance. If any of the applicable mandatory standards of either ordinance cannot be met, a permit must be denied. Also,ifthere are conflicting standards in the ordinances, the Code provides that the most stringent standard must be applied. It is important to remember that the Riparian Preservation area and Floodplain corridor are part of the same land in the same area. 18.62.010 Purpose and Intent The purpose of this Chapter is to provide for safe, orderly and beneficial development of districts characterized by diversity of physiographic conditions and significant natural features; to limit alteration of topography and reduce encroachment upon, or alteration of, any natural environment and; to provide for sensitive development in areas that are constrained by various natural features. Physiographic conditions and significant natural features can be considered to include, but are not limited to: slope of the land, natural drainage ways, wetlands, soil characteristics, potential landslide areas, natural and wildlife habitats, forested areas, significant trees, and significant natural vegetation. (Old 2808, Added, 12/0211997) 2. The Planning Department erred as a matter of law in determining that the proposed development met the Standards for RiDanan Preservation Lands. 5 Ashland City Council A Physical and Environmental Constraints Review permit must be denied, because the development cannot meet the applicable criteria of the Riparian Ordinance. Applicants have proposed to place fill in the riparian preservation area for driveway construction. The objective section of the Riparian ordinance limits the purposes for which fill can be placed in the riparian area. Construction of a driveway is not a purpose for which fill can be placed in the riparian area. Riparian Preservation Lands are defined as: Riparian Preservation - The following Flood plain Corridor Lands are also designated for Riparian Preservation for the purposes of this section and as listed on the Physical and Environmental Constraints Overlay Maps: Tolman, Hamilton, Clay, Bear, Kitchen, Ashland, Neil and Wrights Creeks. 18.62.050B The definition of "riparian" for purposes of Chapter 18 of the Code is "that area associated with a natural water course including its wildlife and vegetation." [18.62.03OQ] The applicable Riparian Preservation ordinance provides: ALUO 18.62.015 A. All development in areas indicated for Riparian Preservation, as defined in section 18.62.050(B), shall comply with the following standards: I. Development shall be subject to the standards for floodplain corridor lands. (18.62.070) 2. Any tree over six inches d.b.h. shall be retained to the greatest extent feasible. 3. Fill and Culverting shall be permitted only for streets, access, or utilities. The crossing shall be at right angles to the creek channel to the greatest extent possible. Fill shall be kept to a minimum. 4. The general topography of riparian preservation lands shall be retained. Applicants have stated that development, as defined by the ALUO, will occur in the Riparian Preservation area. I The Staff Report to the PC stated that ''The Grandview Drive right-of-way giving access to the property is in the Floodplain Corridor and in the Riparian Corridor." "According to Staff's calculations, there is approximately 280 square feet of widening and paving of the driveway outside of the existing driveway surface, and it is located mostly in the Grandview Dr. right-of- way." (Record, p 255-56). It should be noted that the what Staff calls ''the existing driveway surface" is a 10' wide dirt road also in the Riparian and Floodplain Corridors. Part of the "existing driveway surface" is located on TL 411, 412 and the ROW. These "existing driveway surfaces" will need to be re-graded and paved, but Staff and Applicant have not included this area in their calculations of the number of square feet to be developed for the driveway. (See Photo & Council Communication for 7/17/07, P 2) Applicants propose to pave/construct part of their driveway on the adjacent Hulse property and on the Grandview ROW owned by the City. Applicants' engineer stated at the PC hearing that fill would be used to build a driveway. And in a transmittal dated 6-27-06 (sic), Applicants' agent, Stuart Osmus, refers to the placement of the toe of the road in the flood plain (and also riparian) area. I The term "development" as used for purposes of this chapter is defined in Chapter 18.62.030 E as follows: DeYelopmeot- Alteration oftbe land sur&c:c by: I. Earth-moving activities such as grading, filling, stripping. or cutting involving more than 20 cubic yards on any lot, or earth-moving activity disturbing a surfitce area greater than 1000 sq. ft. on any lot: 2. Construction ofa building, road, driveway, parking area, or other structure; except that additions to existing buildings ofless than 300 sq. ft. to the existing building footprint shall not be considered development for section 18.62.080. 3. Culverting or diversion of any stream designated by this chapter. 6 Asbland City Council In the Council Communication Staff revises the estimate for widening and paving beyond the existing driveway surface t0324 square feet. The point to be made is that the existing driveway, which is a narrow dirt road, also needs to be regraded and paved so that actual construction work to be done in the riparian ROW area far exceeds 324 square feet. (Council Communication for July 17, page 2). Appellant has measured the area and determined that approximately 1100 sq. ft. in the ROWand on neighbor's property, will be needed to construct a 20'wide driveway. a. Staff incorrectly determined that the driveway is already constructed and that paving a driveway is not prohibited in the regulated area. The site plan shows that the proposed driveway will enter the property on the southeast side. The protected riparian area runs the length of the south side of the subject property. The southeastern marker for the property is in the eastern part of the riparian area, which area has been previously dedicated to the City. (Topographic Survey) Staff found that a driveway exists. There is no existing driveway crossing the property (on the unimproved property). What the City refers to as an existing driveway is a very short, unfinished dirt area that has been used as a place to park cars. Planning Staffhas approved construction of part ofa private driveway on land in the Riparian Preservation area which land is owned by the City of Ashland and dedicated to the City for public use and not private use. The ALUO does not allow for the construction of a driveway in the Riparian Preservation area. Neither the AMC nor state statutes guarantee development rights to a property if such development cannot occur without violating applicable land use laws. In its revised Council Communication Staff states, "The revised Preliminary Grading and Drainage Plan includes moving the proposed driveway completely off tax lot 412. This results in a shift in the driveway of approximately one foot to the southwest." (p. 2) If the driveway is shifted only one foot to the southwest, it will still cross Appellant's tax lot 412. The flag drive requires a 20' wide driveway. (18.76.060B) The southwestern comer of Appellant's property encompasses three feet of the dirt drive that Applicant's intially proposed to expand and pave for their own driveway. From the pin marking Appellant's property, the dirt drive extends south approximately 7' to the edge of the driving area. Applicants will have to extend their driveway in the public ROW all the way southwest to Grandview Drive where it will abut Grandview Drive and run somewhat parallel to Grandview Drive, making that an unsafe area. Further, to allign the grade of the driveway with Grandview they will have to change the topography of the riparian area which is now the Grandview Drive embankment sitting approximately 1-3 feet above Grandview Drive. b. As a matter of law. the City cannot approve any introduction of fill into the protected riparian area for the construction of a driveway. The Applicants propose placing a 20'wide paved driveway and utility trenches in the protected riparian preserve. The Riparian ordinance is subject to all of the standards ofthe Floodplain ordinance, along with additional standards. While the floodplain ordinance mayor may not allow the construction of a driveway in the floodplain corridor, the mandatory riparian ordinance provides that ftll shall be permitted "only for streets, access or utilities." The riparian ordinance does not permit the introduction of fill material into the riparian area for driveway construction. Driveway construction is not one of the limited types of development that fill can be used for in the protected area. If the legislative body intended fill to be placed in the riparian 7 Ashland City Council area for construction of a driveway, it would have included the word "driveway" in the ordinance. Applicants' proposal to place fill in the riparian corridor for purposes of driveway construction - whether it be constructing a portion of a new driveway or widening and upgrading a portion of an existing dirt drive violates the ordinance. Any further development or expansion of the dirt drive that was constructed before the riparian ordinance was in effect, violates the City's ALVO's and the City's stated Comprehensive Plan Policy of preserving riparian areas in their natural state. c. "Access" is not the same as "driveway" In it's findings PC does not include a finding that the fill will be placed for one of the three purposes for which fill is allowed under the riparian ordinance. (Record p 23-24) There must be a finding that the fill is being used for a lawful pupose. The City Code provides: Access: Each lot shall abut a minimum width offorty (40) feet upon a public street (other than an alley). This requirement may be decreased to twenty-five (25) feet on a cul-de-sac vehicle turn-around area. Except with an approved flag partition, no lot shall abut upon a street for a width ofless than twenty-five (25) feet. [18.68.030] The inference is that one gets access to her property from a public street or road, but once she is on her private property, she has accessed it and traverses it using a driveway. A driveway is generally built on one's own property; it is not built on a neighbor's property or in a ROW. One does not generally get access to a property by use of a driveway. One gets access to her property via a public street or public roadway. The words "access" and "driveway" are not synonymous and are not interchangeable. They have different meanings. One would not say "I'm going to build an access across my property," but rather, "I'm going to build a driveway across my property." Likewise one would not say "You can driveway my property via Wimer Street," but rather "You can access my property via Wimer Street." We can deduce that the legislative body that approved the ordinance did not perceive of someone using fill to build a driveway in the riparian area to access their property, although they may have inferred that one would need to construct a bridge to cross the riparian area. There is a difference between constructing a bridge and driveway. A bridge crosses over the riparian area leaving its vegetation in tact. A paved driveway destroys all the vegetation under and around it and continues to throughout the life of the driveway as the exhaust fumes and tires from a car encroach on the surrounding area. d. The ALUO calls for the crossine: to be at right angles to the greatest extent possible When enacting this Code section, Council knew that a bridge might have to be buih over a riparian area and they qualified the type of construction by stating that the crossing should be at right angles (as a bridge would be). The applicable section of the riparian ordinance provides: 3. Fill and Culverting shall be permitted only for streets, access, or utilities. The crossing shall be at right angles to the creek channel to the greatest extent possible. Fill shall be kept to a minimum. From the second sentence - "The crossing shall be at right angles to the creek channel. .. " -- we can extrapolate that the Council was thinking that fill might be needed to place a bridge across a riparian area to give access to a property. Similarly, with utitlities - Council realistically knew 8 Ashland City Council that at times utilities might have to cross a riparian area, and that's what the ordinance permits. We can infer from the two sentences back-to-back that Council was not approving the laying of utilities in the protected riparian area in any manner other than crossing it. They did not intend that fill would be used to build a driveway parallel and through the riparian area as Applicants propose. Provisions of a local ordinance should be interpreted in a manner which gives meaning to all parts of the ordinance. 19th Street Project v. City of The Dalles. 20 Or LUBA 440,449 (1991). The ordinance also requires that fill be kept to a minimum. The amount of fill keeps increasing. Applicants' attorney wrote Staff a letter stating 280' of widening and paving was needed. (Record, p 45). However, Council Communication (p.2) states that they estimate 324' square feet need to be paved and widened beyond the existing driveway surface. The existing driveway surface needs to be paved also which will also require filL Of course, this doesn't include the fill needed to grade the driveway now running across the southern portion of the property (and also in the riparian area) to Code standards, as required when the property is developed or to place utilities in the riparian area, as Applicant proposes. Appellant's measurements show that over 1100 sq. ft. of fill will be required. The purpose of the riparian ordinance is to protect and preserve our Precious riparian resources. It's not a stretch to see that allowing a paved 20'wide driveway to be placed right down the middle of a riparian area would have an irreversible deleterious effect resulting in significant destruction of the protected riparian area. 3. The General Topography of the Riparian Area cannot be Retained if Applicants' proposal is approved The applicable riparian code section provides that "the general topography of riparian preservation lands shall be retained." The Code does not define ''topography,'' but the American Heritage Dictionary defines it as ''the surface features of a place or region." A 20'wide paved driveway will destroy the surface features of the entire area of the riparian surface that it covers. Furthermore, it will be impossible to Preserve the embankment that Applicant's engineer stated would be graded down to the level of the abutting Grandview Drive to build the driveway. The general topography of this area will not be retained. The Grading and Drainage plan shows the proposed drive built over the embankment and abutting Grandview. 4. Wrights Creek is classified pursuant to the comprehensive plan and ALUO's as a significant riparian resource despite planning department's reliance on a consultant's report which has not been adopted by the Council Ashland residents have demonstrated time and again that they want strong protection for our natural resources. Our community is replete with organizations trying to protect our natural resources including, to list just a few, National Center for Conservation Science & Policy, Sierra Club, Southern Oregon Nature Conservancy, Lomakatsi Restoration Project, Ecology Center of the Siskiyous, Friends of Ashland, etc. The City must enforce existing resource protective ordinances and turn back the destruction of our GoalS resources. Planning Staff promote destruction of our natural resources when they attempt to use a consultant's report to declassify Wrights Creek as a "Significant Resource"and when they fail to enforce even minimally- protective riparian setbacks. Both State Statutes and Jackson County Ordinances have far more 9 Ashland City Council II stringent riparian setbacks than does the City of Ashland. It's a finger in the dike. But Nothing short of strict enforcement by the Planning Department of the, at present, insufficient ordinances protecting our resources will suffice. Nance Louise, adjacent property owner, spoke for all ofus when she stated at the Planning Commission hearing, "You have to protect the creek." a. The StatJReport Incorrectly states that Wrights Creek is not a "significant Riparian Corridor because it is not fish bearing." (Stafl'Report, 11) Staff relies on a consultant's report completed in July, 2005 which has not been adopted by the City Council to deny Wrights Creek's status as a "Significant riparian corridor,." The consultant's report flies in the face of the official "Bear Creek Watershed Analysis"done by the U.S. Forest Service which establishes Wrights Creek as fishhearing - in the lower two-tenths of the stream -- and found that a barrier (which could possibly be removed) blocked fish from the upper reaches of the Creek. Brent Crowe, with the ODFW - Rogue District Watershed writes concerning Wrights Creek: "Regardless of whether or not the barrier completely bloc/cs fish passage, ODPW would recommend protecting the riparian area for the entire length of the stream. The riparian area is valuable in controlling water temperatures by shading the stream. Wood that falls into the stream provides habitat complexity and nutrients for a variety of creatures which can eventualy be eaten by fish and wildlife. The topo map shows the lower reaches of Wrights Creek flowing through relatively flat terrain. We frequently find fish using these types of steams as winter refuges during high flows." Brent Crowe, ODFW, 1-5-2007 Of course, for purposes of the proposed development it is not necessary to find that Wrights Creek is a "significant riparian corridor." It is only necessary to find that it is a designated for riparian preservation -- which it is pursuant to ALUO 18.62.050B: "Riparian Preservation . The following Flood plain Corridor Lands are also designated for Riparian Preservation for the purposes of this section and as listed on the Physical and Environmental Constraints Overlay Maps: Tolman, Hamilton, Clay, Bear, Kitchen, Ashland, Neil and Wrights Creeks 5. The Planning Department erred as a matter of law in determining that the proposed development met the Standards for Floodplain Corridor Lands. Applicai1ts' property on the southern side is in a Floodplain Corridor. The criteria which must be met to obtain a Physical and Environmental Constraints Review Permit for development in a Floodplain Corridor is found in ALVO 18.62.070. The sections of the ordinance applicable to this application are 18.62.070(M) and 18.62.070(A)(2) as follows: ALUO 18.62.070M: ~Local streets and utility connections to developments in and adjacent to the Floodplain Corridor shall be located outside of the Floodplain Corridor, except for crossing the Corridor..." ALUO 18.62.070A(2): "The toe of the fill shall be kept at least 10 feet outside offloodway channels, as defined in Section 15.10, and the fill shall not exceed the angle of repose of the material used for fill." ALUO 15.10.050(1): Floodway means that channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more than one (1) foot. In their original development proposal Applicants proposed to place the utilities trench and lines in the Floodplain Corridor (this is also the Wrights Creek riparian preservation area) running parallel to the corridor. Subsequent to a hearing the PC ordered that the utility trench 10 Ashland City Council and lines must be located more than 20 feet from the TOCB - outside of the Floodplain Corridor. In a letter to the Planning Commission dated 1/24/07 Applicants' attorney stated: ''Ms. Brodersen stated that the utility trench is not permitted in the flood plain corridor. As stated in our 1st submittal, we have elected to relocate the utility trench so it is no longer in the corridor. Ms. Brodersen's contention in that regard is now moot." (Record, p 42) However, in their latest revised plans, submitted on June 29, 2007, Applicants have again placed the utility trench and lines in the Flood Plain Corridor contrary to the PC Order. The applicable ordinance unequivocably states that "streets and utility connections... shall be placed outside the floodplain corridor." In a Transmittal to Maria Harris from Stuart Osmus, Mr. Osmus states: "I received permission from the property owners to the south of Grandview to locate the toe of the road embankment and the creek where it crosses their property." Although the sentence needs to be clarified, it appears that Applicants' plan to put the toe of the fill near the creek that crosses the neighbor's property. This would violate the Floodplain ordinance which requires that the toe be kept 10 feet outside of the floodplain channels. PART 2 1. Weighing of Impacts The subjective ''weighing of the impacts" of development is the second part of a two-part process. If Council fmds that the riparian ALUO does not allow for placing a driveway in the riparian preservation area, no further consideration is needed. However, if Council finds that Applicant has met the objective requirements of the Riparian and Floodplain ordinances, (purposes for which fill can be used, where utilities can be placed, that topography will be retained, etc.) which Appellant believes it has not met pursuant to the ALUO, then, and only then, would Council proceed to ''weigh the impacts" of the development. The following criteria must be met by the Applicant: J. Through the application of the development standards of this chapter. the potential impacts to the property and nearby areas have been considered, and adverse impacts have been minimized. 2. That the applicant has considered the potential hazards that the development may create and implemented measures to mitigate the potential hazards caused by the development. 3. That the applicant has taken all reasonable steps to reduce the adverse impact on the environment. Irreversible actions sholl be considered more seriously than reversible actions. The Stq/J Advisor or Planning Commission shall consider the existing development of the surrounding area, and the maximum permitted development permitted by the Land Use Ordinance. 18.62.040(1) In weighing the impact of the development, the potential impacts - impacts that could possibly occur in the future -- to the property to ''nearby areas," including Wrights Creek, must be considered. (ALUO 18.62.040(I).. Impact considerations include, but are not limited to, loss of habitat, increase in water temperature, amount of sediment displaced into the creek, placement of manmade materials in the area and pollutants entering the creek. 2. Considerations for weighing of impacts a. Babitat Wrights Creek is fishbearing (below highway) and is a tributary of Bear Creek which is designated as a ''water quality limited" Creek with special protections. The Ashland Comprehensive Plan (CP) has as two of its Goals: to "[P]rotect the quality ofriparian resource lands, and preserve their wildlife habitats" and "[t]o preserve and protect significant wetlands, 11 Ashland City Council ----ro-y--- and to mitigate potential impacts on these areas due to development and conflicting uses." (CP page IV-ll&13) The Wrights Creek area is home to abundant wildlife including: wild turkey, quail, bear, porcupine, bobcat, and coyotes. b. Erosion, Sedimentation, Po Dation Council must weigh the impact of the disturbances proposed -- placement of fill, laying of asphalt within 8 feet of the top of the bank, trenching, piping of storm water into the Creek and the affect of embankment erosion and sediment runoff entering the Creek from the development's use of retaining walls and the use of heavy equipment to construct a driveway and the extensive disturbance of the embankment. (The embankment sits at least one foot higher than Grandview Drive which the proposed driveway will abut.) Because the City did not require an SDUS, there is nothing in the record about what is proposed for sewage disposal. Is the intention to pump sewage up Grandview to the Grandview/Wrights Creek area or to have a drainfield? Is so, how close to the Creek will the pump and other infrastructure be located? What measures will be taken to prevent sewage leakage into the Creek in the event of a flood in the floodplain area? Prior to the remand, the Planning Department had granted Applicants a variance to allow for a slope of up to 18<<'./0 for up to 200' of the proposed driveway. (This was one of the issues appealed to LUBA) Now the proposal is to reduce driveway slope to 10 and 11% in some areas. There is no indication in the Record about the type and amount of excavation needed to reduce a slope of possibly 18% down to 10% or 11%. How will sediment from excavation affect the Creek. Applicants also propose the use of a retaining wall. There is no information in the Staff Report or the Applicant's Narrative about the height, material used and amount of excavation needed to place the retaining wall. c. "Unnatural" Mitigation proposals Applicants' proposals to mitigate the damage from the construction, are unnatural, manmade solutions which detract from and destroy the natural state of the riparian area. To mitigate their proposal to put a paved driveway within eight (8) feet of the top the the Creek bank, Applicants propose to place riprap (manmade concrete/cement rocks) in the riparian area, to put a drain pipe and energy dissipater in the riparian area and directly into the creek water, an irrigation system in the riparian area, and bank stabilization measures in the riparian area (Record, pp 334-35) Using unnatural, manmade products and solutions to stabilize a riparian area that would not need stabilization were it not for harmful development, is not conducive to maintaining the area in its nataral state as required by the City's CP, nor is its natural topography being maintained as required by ALUa 18.62.075A While Applicants may be able mitigate the destabilization of the riparian area, their proposals will not retain the natural state of the riparian area and its natural topography as is required by the ALUa d. Flooding This area flooded during the flood of 1997 to the extent that a FEMA representative assessed damage. With so such a large portion of Applicants' site taken over by impervious surmces and with a propoased paved driveway in the riparian area, and storm drainage piped into the Creek, there is the real possibility offlooding in the future. The more impervious surface the less surface for storm water to penetrate. 12 Ashland City Council Nance Louise, whose property abuts the riparian area and also adjoins the Applicant's property, said it best at the Planning Commission hearing, "You have all these million dollar houses that are draining into the culvert and they are causing a mess down there. All this storm drainage is really causing havoc on that fork and on Wrights Creek and that's a City issue." Clearly, there is a drainage problem and the impact of additional storm runoff being piped into the area is one that Planning has failed to address. The amount of storm runoff will not be insignificant considering the slope of Applicants' property and the considerable impervious surface proposed for the development. 3. The topographic map required by ALUO 18.62 does not include required info and Staff recommended approval of this development based on incomplete and inaccurate information ALVO 18.62.040 (H)(k) requires that Applicants submit a topographic map with mandatory information so that decisions can be made with knowledge of the facts. The following pertinent information for development required by the ALVO have not been identified on the topo map: Indicate total area of disturbance, total percentage of project site proposed for disturbance, and maximum depths and heights of cuts and fill; The proposed method of erosion control, water runoff control, and tree protection for the development; Natural features on adjacent properties potentially impacted by the proposed development shall also be included, such as trees with driplines extending across property lines; A topographical map of the site at a contour interval of not less than two feet nor greater than five feet. The topographic map shall also include a slope analysis, indicating buildable areas, as shown in the graphic. (Applicants' topo map is not of the site but only of the southern portion of the property and there is no slope analysis.) The location and site of all public utilities affected by the proposed development (Applicants have not shown location of sewage disposal lines ) Location of aU areas of land disturbance, including cuts,fiUs, driveways, building sites, and other construction areas. (emphasis added) Location for storage or disposal of all excess materials resulting from cuts associated with the proposed development. ALUa 82. 62.040(H) 1. This required information for development in a sensitive area has not been provided. These are not onerous requirements: but Applicant has not met them. What is the plan for protecting the root system of the tall pine tree in the riparian area? Where is the significant stand of trees located on TL 500 (neighbor's property to the west) and how far do the drip lines extend onto Applicants' property? This is important information, because Applicants have placed a paved driveway right up to the property line on the west side of their property. Visually, this appears to be the area where the neighbors tree drip lines extend.) The Staff Report confirms that staff lacked information required by ordinance and required to make good decisions: "The application does not address the amount of surface area of the driveway located in the Wrights Creek Floodplain" (Staff Report, page 3). ..The application does not quantify the earth work in cubic yards or surface area disturbance involved in the private storm drain line or utility trench. According to Staff's calculations, approximately 40 lineal feet of privte storm drain line is located in the Wrights Creek Floodplain with an additiona12S square foot area for the storm drain outlet/energy dissipater." (page 4) "According to Staff's calculations, there is approximately 280 square feet of widening and paving of the driveway outside of the 13 Ashland City Council existing driveway surface, and it is located mostly in the Grandview Dr. right-of-way." (Record. p 255) "It is not clear :from the application, but it appears the proposal also involves the pavement of the portion of the driveway on the subject parcel that serves the existing residence on the property to the west" [in the floodplain and riparian corridors]. (Record, p 252) ALva 18.62.040 clearly states what information the Applicant is to provide so that Staff decisions are based on :fuctual information about the development. When the application does not contain the required information, the antidote is to return the application to the Applicant as incomplete rather than making "guess-timations." Council should deny a Permit for development in a sensitive area when it does not have pertinent information such as the quantity and location of fill material, location of drip lines, total area of disturbance, etc., as required by ordinance. m. PIPING STORM WATER RUNOFF INTO WRlGHTS CREEK VIOLATES THE STORMWATER AND DRAINAGE MASTER PLAN, THE AMC, ODEQ REQUIREMENTS AND OREGON STATUTES 1. Piping Storm Water RunoO'into Wrights Creek Violates the City's Storm Water Master Plan and the AMC The City has clearly stated its intention not to pipe storm water into Wrights Creek: AMC 4.27.020(0) states that Wrights Creek is not a storm drainage facility. Storm Drainage Facilities shall mean any structure(s) or configuration of the ground that is used or by its location becomes a place where storm water flows or is accumulated including, but not limited to, pipes, sewers, gutters, manholes, catch basins, ponds, open drainage-ways and their appurtenances. Ashland Creek, Bear Creek, Wrights Creek...are not storm dninage faeUities.(emphasis added) AMC 4.27.020(0) In addition to the prohibition in the AMC, the City has a "Stormwater and Drainage Master Plan"(2000) which was formally adopted by the City Council on June 18, 2002. (Resolution 2002-15). Concerning Wrights Creek the Plan provides: "The creek is relatively undeveloped and the upper, steeply sloped reaches of its watershed are still heavily forested. With its preserved vegetation, the watershed provides an opportunity for a vegetated wildlife link between the National Forest and the Bear Creek Greenway. Future development should be reviewed carefully because it would increase erosion and flooding problems and reduce the possibility ofa wildlife connection." (p.3-11) In a Table presenting goals for the protection of Wrights Creek, the protection method for the WR-4 area in which the subject property is located is ''protect from future development." (pp.4- 14 & 4-15). Even thought the Stormwater and Drainage Master Plan proscribes piping stormwater into Wrights Creek, Staff approved the proposal which allows for storm water to be piped directly into the protected Creek and for a private storm water pipe and tap to be placed in the riparian preservation area owned by the City. (Narrative page 7 (Record, p 255 & and "Council Communication for 5/15/0T' p. 9) This is in violation of Ashland's municipal code and Ashland's Stormwater and Drainage Master Plan. 2. Piping of storm water into Wrights Creek violates Oregon water quality statutes and Best Management Practices 14 Ashland City Council As part of its application with ODEQ for a National Pollution Discharge Elimination System (NPDES) for storm water discharges, Ashland agreed to use the "Best Management Practices" (BMP) possible. Allowing a private development to pipe its stormwater directly into a public waterway is not only not a BMP, but also violates Oregon's water quality statute which provides in part: (I) Except as provided in ORS 4688.053 01'4688.215, withoutboldingapennit from the Director of the Department of Environmental Quality or the State Department of Agriculture. which permit shall specifY applicable effluent limitations, a penOB may Dot: (e) CODstnct or use aDY Dew oudet for the discba...e OfaDY wast~ into tbe waten oftbe state. ORS 4688.050 3. A Private Storm Drain is Not a Public Utility and is not a Utility Connection and Cannot be Placed in the Riparian Corridor Ashland Riparian Preservation ordinance provides that "fill and culverting shall be permitted only for streets, access, or utilities." Culverting will be necessary to place a private storm drain. Placing of a private storm drain is not one of the three uses for which culverting is permitted under the ordinance. While Applicants' attorney has argued that a storm drain is a utility, and therefore would be permitted in the riparian area, the Ashland Code does not support that theory. AMC Title 14 is the "utility" Title. Its chapters address Ashland's utilities including chapters on water, sewage and electricity. But there is no chapter in Title 14 about storm drainage systems because storm drainage systems are not utilities as defined by the Code. It is important to remember that Applicants propose to pipe storm runoff into Wrights Creek using a private storm drain system. In Cox v. Polk County. 174 Or App.332; 25 P.3M 970 (2001) the court stated that "The term 'utility' commonly means "a service provided by a public utility" and a unit composed of one or more pieces of equipment connected to or part of a structure and designed to provide a service (as heat, light, power, water or sewage disposal)." Websters defines "utility" in part, as "a business enterprise that performs essential public service. The private storm drain pipes and dissipaters are not utilities, culverting in the riparian area is not permitted for the purpose of placing them. Even if a private storm drain were a utility, which it is not, it could not be placed in the Floodplain corridor because the floodplain ordinance only permits utility connections to cross the corridor. The implication is that the a private connection would cross the corridor to connect to a public utility. The storm drain is not connecting to anything. It is being used to dump storm drainage into Wrights Creek, a tnoutary of Bear Creek which is a federally protected water- quality limited Creek. The Council must deny Applicants' request for a Physical and Environmental Constraints Review Permit because Applicants' proposed storm drainage plan is in violation of the cited ALVO's, and the City's Storm Water Master Plan. IV. THE APPLICATION REQUIRES SUBMISSION OF A TREE PROTECTION PLAN Tree protection is applicable to this planning action (ALVO 18.61.200) but there is no tree protection plan in the application record. The applicable ALVO provides: 18.61.200 Tree Protection Tree Protection as required by this section is applicable to any planning action or building permit. 2 "Wastes" means ... liquid, gaseous, solid, radioactive or other substances which will or may cause pollution or tend to cause pollution ohny waters of the state. 15 Ashland City Council Ii .- A. Tree Protection Plan Required 1. A Tree Protection Plan approved by the Staff Advisor shall be required prior to conducting any development activities including, but not limited to clearing, grading, excavation, or demolition work on a property or site, which requires a planning action or building permit. 2. In order to obtain approval of a Tree Protection Plan; an applicant shall submit a plan to the City, which clearly depicts all trees to be preserved and/or removed on the site. The plan must be drawn to scale and include the following: a. Location, species, and diameter of each tree on site and within 15 feet of the site; b. Location of the drip line of each tree; c. Location of existing and proposed roads, water, sanitary and storm sewer, irrigation, and other utility lines/facilities and easements; d Location of dry wells, drain lines and soakage trenches; e. Location of proposed and existing structures; f. Grade change or cut andfill during or after construction; g. Existing and proposed impervious surfaces; h. Identification of a contact person and/or arborist who will be responsible for implementing and maintaining the approved tree protection plan; and i. Location and type of tree protection measures to be installed per AMC 18.61.230. 3. For development requiring a planning action, the Tree Preservation Plan shall include an inventory of all trees on site, their health or hazard condition, and recommendations for treatment for each tree. B. Tree Protection Measures Required. 1. Except as otherwise determined by the Staff Advisor, all required tree protection measures set forth in this section shall be instituted prior to any development activities, including, but not limited to clearing, grading, excavation or demolition work, and shall be removed only after completion of all construction activity, including landscaping and irrigation installation. 2. Chain link fencing, a minimum of six feet tall with steel posts placed no farther than ten feet apart, shall be installed at the edge of the tree protection zone or dripline, whichever is greater, and at the boundary of any open space tracts, riparian areas, or conservation easements that abut the parcel being developed 3. The fencing shall be flush with the initial undisturbed grade. 4. Approved signs shall be attached to the chain link fencing stating that inside the fencing is a tree protection zone, not to be disturbed unless prior approval has been obtainedfrom the Staff Advisor for the project. 5. No construction activity shall occur within the tree protection zone, including, but not limited to dumping or storage of materials such as building supplies, soil, waste items, equipment, or par/ced vehicles. 6. The tree protection zone shall remain free of chemically injurious materials and liquids such as paints, thinners, cleaning solutions, petroleum products, and concrete or dry wall excess, construction debris, or m-off. There is a "significant" (18.61.010) old pine tree, 25" according to the Topo, in the riparian/floodplain area which sits very near to where Applicants propose to constiuct a driveway. The topo and driveway maps provided by Applicants do not provide enough information to determine how close the driveway will be to the tree. However, one of Applicants' markers for the driveway in the ROW is directly under the drip line. The proposal calls for removal of riparian vegetation and grading down of the riparian area (where there is an incline) very near the pine tree. The ALUO provides special protection for significant trees, which by defmition are greater than 18 inches. Driveway construction is prohibited within the 16 Ashland City Council drip line area of the significant pine. There are other trees in the riparian preservation area and a "grove" of trees along the western property line (on TL 501) which have drip lines extending onto Applicants' property on the southern end where driveway construction is proposed. The tree ordinance standards need to be applied to this application. v. THE CITY'S PHYSICAL AND ENVIRONMENTAL CONSTRAINTS AND REVIEW PERMIT ORDINANCE, RELATING TO GOAL 5 RESOURCES, VIOLATES THE CITY'S ACKNOWLEDGED COMPREHENSIVE PLAN, STATED CITYWIDE GOALS, AND OREGON ADMINISTRATIVE RULES FOR GOAL 5 RESOURCES The Planning Commission's approval of a Physical and Environmental Constraints Permit and of significant expansion of a driveway, paving of a driveway, placing of fill and utilities in the Wrights Creek protected area violates the City's Comprehensive Plan and the stated Citywide goals. 1. The City's Physical Constraints and Review Permit Ordinance, in so far as it affects GoalS Resources, violates the City's aclmowledged Comprehensive Plan and violates Oregon Administrative Rules for GoalS Resources Because the Physical and Environmental Constraints Review Permit ordinance had not been acknowledged by DLCD when Applicants applied for a building permit in 2004, the City must revert to the OAR's affecting GoalS resources as the applicable law.3 It is incumbent upon the City to apply the safe harbor rules to this application. Those rules require a 50 foot riparian setback for the Wrights Creek riparian area. a. Application of August, 2006 is not a new application Applicants' application should be evaluated under the ordinances in effect when it was first made in 2004 because the evidence shows that the application of August, 2006 is not a new application. While Staffhas treated the revisions filed in November, 2006 as a ''new application," this is really just a continuation of the original application filed in 2004. The revisions were made in response to the remand from the 2004 LUBA appeal. That this is not a new application is evidenced in the filet that Applicants have neither submitted a new Site Plan nor paid a new application fee (Record p 325). This is a continuation of the application remanded from LUBA. VI. APPLICANTS' PROPERTY IS NOT A "LEGAL LOT" AS DEFINED IN ALUO 18.08.350 WHICH IS A REQUIREMENT FOR THE ISSUANCE OF A DEVELOPMENT PERMIT 1. Applicant's property was unlawfully created The subject unit of land was created by Partition and by a Subdivision variance in 1979 by Planning Action #79-110. (Supplemental Rec. 12 & 28) It did not comply with all applicable laws at 3 The City, which had its Physical and Environmental Constraints Permit ordinance acknowledged in June, 2005, did not follow proper procedure including notice to Petitioner, who was a party to a LUBA appeal where the acknowledgement issue was raised. There was substantial and prejudicial error in the way the City handled this PAPA and it substantially and prejudicially affected Petitioner's rights. 17 Ashland City Council In the time it was created. The unit ofland had a widthof85' and a depthof295'. In 1979 ALVO 18.20.040 provided that the maximum depth for a lot created by Partition was 150 feet. 17.08.040 Lots. A ...Lots shall have aan average depth of not more than one hundred fifty (150) feet except when the lot width at the front building line is in exess of one hundred (100) feet. The Ashland Municipal Code required strict adherence: AMC 17.04.020 Scope ofRee:ulations. Subdivision plats, minor land partitioning, and streets and ways created for the purpose of partitioning land shan be approved by the planning comission in accordance with these regulations. No person shall subdivide land, partition land by creation of a street or way, or engage in minor land partitioning without complying with this title and the state law. In 1979 there was no provision in the Ashland Code which would permit a lot depth variance for lots formed by a Minor Land Partition. Applicants, who could not partition the property because of its depth, applied for a lot depth variance using an ordinance which applied only to subdivisions. Applicants state in Planning Action #79-110: "A subdivision variance is also being requested as the proposed parcels #1 and #2 are 85' wide and 295' in depth which is in excess of 150' maximum lot depth allowed by ordinance." But the applicable ALVO's explicitly distinguished between a Minor Land Partition and a Subdivision: AMC 17.04.010 N Subdivide land means to partition or commence partition ofa parcel ofland into four (4) or more parcels ofless than five (5) acres each.... (1979 Code) AMC 17.04.010 F Minor land partitioning means partitioning ofland other than subdividing land or creation ofa street way. (1979 Code) The applicants had created three units of land by Minor Land Partition, as stated in their application. The subdivision variance could not be used to bring a non-conforming unit ofland created by a Minor Land Partition into conformity. In Woolsley v. Marion Co., 118 Or App. 206, 846 P2d 1170 (1993), the Appellate Court affirmed the County's denial of an application for a replacement dwelling on property that had, earlier, been unlawfully partitioned. The Court looked to county legislation that forbade land use approvals on property that was in violation of any county ordinance. In Maxwell the Oregon Court of Appeals reviewed its decision in Woosley: "For similar reasons, this case is unlike Woosley v. Marion County. 118 Ore. App. 206, 846P2d 1170 (1993), where LUBA and we affirmed the county's denial ofan application for a replacement dwelling on property that, earlier, had been unlawfully partitioned. The basis for that decision was county legislation that forbade land use approvals on property that was in violation of any ordinance of the county." As in Woosley, there is corresponding legislation that bears on this application. The current ALVO definition of "lot" requires compliance with all laws in effect at the time the lot was created. In deciding Maxwell, the Comt of Appeals presented a lengthy analysis of the 1egallot issue considering legal lot cases up to the time of Maxwell. In Yamhill County v. Ludwick, 294 Or 778, 663 P2d 398 (1983) the Oregon Supreme Court concluded that the original subdivision or partition of the land had violated state statutes and consequently, the tracts were not "existing legal lots of record" as required by the applicable zoning ordinance. "That conclusion was not dependent on whether the 18 Ashland City Council sales of the tracts to the owners were void or voidable under contract law...Rather, the court was concerned "only with the legal status of the lots for the purpose of land use planning." Id at 790,663 P2d 398. The Ashland Planning Commission lacked jurisdiction to approve a lot depth variance for a lot formed by minor land partition, because there was no provision under the Ashland Code for such a variance or for a waiver of jurisdictional requirements. The lot depth requirements could not be waived by the Planning Commission nor could they be waived by stipulation. (A jurisdictional requirement may not be waived by stipulation. City of Hermiston v. Employment Relations Bd, 280 Or 291,570 P2d 663 (1977).) The planning commission is given authority to make recommendations to the City Council pursuant to AMC 2.12.060. Legislative powers are reserved for the Ashland City Council, made up of elected members. AMC 2.04. The planning commission possesses only those jurisdictional powers as are expressly conferred on it by state statute or city ordinance. The planning commission did not have jurisdiction to grant partitioners an exception to the Ashland Code. Unable to set aside the lot depth requirement ofthe Code, a new entity - a partition/subdivision was devised. There was no provision in the Code for such an entity or for a subdivision variance being applied to a partition. 2. The Final Plat was not timely prepared Although the Ashland Planning Commission gave preliminary approval for the partition-subdivision on September 14, 1979, a final map was not recorded until December 15, 1981, over 27 months later. In a letter from the City Planning Department to the applicants, then Associate Planner Wanderscheid noted that a final map must be submitted within one year of the date of preliminary approval; otherwise approval becomes invalid. (Exhibit) The relevant 1979 Code provision provided: 17.24.010 Submission. Within six months after tentative approval of the preliminary plat, the subdivier shall cause the subdivision or any part thereof to be surveyed and a final plat prepared. Although the Ashland Planning Commission gave preliminary approval for the partition- subdivision on September 14, 1979, a final document was not signed by the planning commission secretary and president until November 9, 1981. It reads, "We certify that pursuant to authority granted to us by the Ashland planning commission in an open meeting of September 13, 1979, this map is hereby approved by the Ashland Planning Commission this 9th day of November 1981." The city engineer signed a statement on the document: "Examined and approved this 26th day of February, 1981." (Ree. 15-16) This final map was approved over 26 months after preliminary approval on September 14, 1979. 3. The Plat was not timely tiled as required by ordinance Finally, the final plat had to be recorded within 30 days afthe date of the last required signature: 17.24.080 Filin(!. The subdivider shall, without delay, submit the final plat for signatures of other public officials required by law. Approval of the final plat is null and void if the plat is not m:orded within thirty (30) days after the date the last required signature has been obtained. (Emphasis added) The plat was not timely filed and is null and void. It was filed on December 15, 1981. The final official signature was added on November, 9, 1981. The plat was not recorded within 30 days of 19 Ashland city Council In the last signature as required by the applicable ordinance. The ordinance could not be clearer: that recordation of the final plat had to be within 30 days after the last required signaure was obtained. 4. In 1981 lots were not recognized by use of a Minor Land Partition Pursuant to County Recordation requiremen~ in 198110ts could not be formed/recognized by use of a partition. Jackson County did not recognize Partitions as a legal division of land. Prior to 1990 a survey + partition were not legally recognized as a way to divide land. The division had to be done by a metes & bounds description in a deed. In 1981 division of property was acknowledged by the County when there was a Subdivision or recordation of a Deed. A Minor Land Partition, which was the method used to create Applicants' property, could not be legally recognized by the County. There were no deeds recorded immediately after the Minor Land Partition in 1981. 4 Based on ordinances and case law, Appellant respectfully disagrees with the Memorandum written by Ashland's former City Attorney, in which he opines that Applicants' lot is a legal lot. Ashland's definition of "lot" requires a Maxwell inquiry: ALUO 18.08.350: Lot: A unit ofland created by a partition or a subdivision, or a unit or contiguous units of land under single ownership, wbieb eomplies with all appUeable laws at tbe time sueb lots were ereated. (Emphasis added.) Ashland's code specifically requires that a lot be a legal lot - a lot that "complies with all applicable laws" at the time it was created. The defInition also requires that the "lot" be created by "a partition or a subdivision." Intervenors' lot was created by both - a partition using a subdivision variance. And again, partitions were not recognized by the county as a means of dividing land in 1981. Partitioners, by defmition, did not create a "lot," as defIned in the Code, and to the extent Intervenors relied on a recorded deed, recordation was a void action. The deed which conveyed the property from Partitioners to the Applicants has a "buyer beware" warning in capital letters which states: "This instrument will not allow use of the property described in this instrument in violation of applicable land use laws and regulations..." As part of its analysis, the City will have to determine how Appellants' "lot" was created. Was it created by Partition or Subdivision or some combination of both? ALUO 18.20.040(C) states that maximum lot depth shall be 150 feet, with the exception oflots created by minor land partition. Appellants' property is approximately 280' deep. It will be necessary to determine what process created this "lot" when Partitions were not recognized as a way of legally dividing land at the time of creation. Finally, state statutes forbid giving a ROW easement for land that has been unlawfully partitioned or subdivided in violation of state statutes. 4 The Deed of Record for the larger piece ofland which was petitioned into three properties was a 1945 deed. 20 Ashland City Council VB. THE DECISION TO ISSUE A BUILDING PERMIT TO APPLICANTS IS FLAWED BY PROCEDURAL ERRORS THAT PREJUDICED THE SUBSTANTIAL RIGHTS OF THE APPELLANT, BECAUSE APPUCANTS' APPLICATION WAS PROCESSED WITHOUT A SITE DESIGN AND USE STANDARDS (SDUS) REVIEW, WHICH REVIEW REQUIRES A TYPE I PROCEDURE PROVIDING FOR AN OPPORTUNITY FOR A BEARING AND INFORMATION WHICH IS NOT PART OF THE CURRENT APPLICATION ALua 18.108.020(B) provides that all planning actions.5shaIl be subject to processing by one of four procedures: Staff permit procedure, Type I procedure, Type II procedure, or Type III procedure. Pursuant to ALUa 18.108.040A(8)( c) new structures greater than 2,500 square feet are subject to a Type I Procedure: "A. Actions Included. The following planning actions shall be subject to the Type I Procedure: 7. Variances for: d) Parking in setback areas. 8. The following developments subject to the Site Design and Use Standards in section 18.72.040.D: .... c) All new structures or additions greater than 2,500 square feet...." ALUO 18.108.040A(8)(c) The proposed development is greater than 2,500 square feet; the proposed development provides for a paved parking area in the northern setback. (Rec. Site Plan) The proposed development does not meet any of the exceptions which would preclude the necessity ofa Type I Procedure for a house greater than 2,500 square feet and for parking in a setback. The City has failed to comply with the express wording of its ordinance. The City's failure to follow the statutory requirements for notice and the opportunity for a hearing prejudiced the substantial rights of the Petitioner. Ifan SDUS had been initiated additional information about the development of the property would have been in the record, as required by ALua 18.72.060 including the proposed location of: 1. Connection to the City water system. 2. Connection to the City sewer system. 3. Connection to the City electric utility system. 4. The proposed method of drainage of the site 5. location of all parking areas 6. percentage of lot coverage 7 That there is adequate capacity of city facilities for urban storm drainage (criteria for approval) [ALUa 18.72.070] 5 The Ashland Land Use Ordinance defines a planning action as: "A proceeding pursuant to this ordinance in which the legal rights, duties or privileges of specific parties are determined, and any appeal or review of such proceeding, pursuant to the provisions of this ordinance. A planning action does not include a ministerial decision or a legislative amendment." ALUO 18.08.595 . 21 Ashland City Council The foregoing information is integral to the protection of the Wrights Creek riparian area - how can Planning determine there will be no seepage of sewage into the Creek when there is no information about where a sewer system will be placed and what kind will be used. Is Applicant intending to pump sewage up the hill to the sewage collection station on Wrights Creek or will a drainfield be used? If so, where will the infrastructure be placed? Will Applicants' private connection to the sewage collection station have to cross property owned by neighbors? Will development on the steeply sloping property displace already existing drainage ways and how will that affect surrounding properties? There are unanswered questions which would have to be addressed .in an SDUS proceeding. Planner Harris states in the Staff Report that Site Design and Use Standards for single- family homes are excluded from the Site Review process and that that language was inadvertently omitted from the applicable ordinance. (Record, p 257) The remedy is to amend the Code - not to violate it - because the language of the SDUS ordinance is clear and objective: "all new structures or additions greater than 2500 square feet" are subject to SDUS review. That is the law to be applied. Planning Staff takes on a legislative role when it decides what the City Council meant when it passed the ordinance, which is clear on its face. Further, even if an SDUS were not required for Applicant's home in excess of2,5oo square feet, an SDUS review is required for parking spaces placed in the northern setback. (See Site Design) It appears from the site plan map that an area will be paved in the northern setback as part of the parking space and that the garage (also a parking space area) extends into the 20'setback. In its Findings the Planning Commission finds that the section of the ordinance it uses to find an snus is not indicated for this development is unclear ("While B.3 could be made clearer. . ."). Nonetheless, the ordinance states on its face that "All new structures or additions greater than 2,500 square feet are subject to a Type I Procedure except for developments included in Section 18.72.040(A) (Staff Permit developments). There is nothing in the exception that relieves the City of a Type I Procedure for a home in excess of2500 square feet. In fact, contrary to the findings of the Commission, use ofa Staff Permit procedure for a single family home or for an addition greater than 2500 square feet is specifically not permitted. 18.71.040 Appl'O'VlIl Precess A StaffPennit. The following types of developments shall be subject to approval under the StaffPennit Procedure. Any StaffPermit may be processed as a Type I permit at the discretion of the Staff Advisor. 2. Any addition less than 2,500 square feet or ten percent of tile building's square footage, whichever is less, to a building. 3. Any use which resuIts in three OJ' less dwelling writs per lot, other diu siagle-flllllily homes 011 iJldividaal... [18.72.040A] (enpbasis added) While there may be different interpretations of the meaning of "other than single-family homes on individual lots," if it is read in conjunction with the requirement of a Type I procedure for additions greater than 2500 sq. ft. and that "all new structures greater than 2500 sq. ft." are specifically cited as requiring a Type I procedure in 18.72.040B, then there can be little doubt that a Type I Procedure is required for the subject development proposal. But if the Council fmds the ordinances have conflicting requirements, the Code requires that the most stringent requirements shall be applied. The hearing for a Physical & Environmental Constraint Review Permit did not elicit the kind information concerning the development that would be required for a Type I Procedure. Factual issues about which Petitioner and other neighbors have concerns 22 Ashland City Council including disposal of sewage have not been addressed and would have to be addressed in a SDUS hearing. VID. THE CITY HAS FAILED TO MAKE ACCURATE FINDINGS CONCERNING SEVERAL LAND USE ISSUES 1. Lot Coverage Maximum coverage (defined in 18.08.160 is "total area of all structures, paved driveways or other soil disturbances that will not allow normal water infiltration...") shall be 40% in the R-l-l 0 district. (ALUO 18.20.040(E). Maximum Coverage for the current revised proposed development is not given and can't be determined from a Site Plan that was prepared in 2004 and does not include any of the more recent revisions. Planner Maria Harris stated at the PC hearing that she thought the coverage was more than 40%. "Coverage" includes retaining walls, fire turnaround, parking area, driveway, home footprint, etc. The impervious surface for the fire turnaround has changed; the drive which is on the subject property going to the home at 507 Grandview must be included; the retaining walls must be included; accurate driveway coverage - including the portion of the driveway proposed for the Ashland ROWand over TL 411 must be included.6 The City needs more facts about the percentage of property "covered." This is an important aspect when deciding mitigation of impact factors, in part, because impervious surface will affect the amount of water runoff and sedimentation entering Wrights Creek which runs both south and west of the property. The impervious surface calculations, which are especially pertinent in a flood/riparian corridor, need to be accurate to determine if they meet Code requirements for development in a sensitive area. 2. Length of Driveway is Unknown Subsequent to the LUBA remand, Applicants modified their driveway; and they again modified the driveway subsequent to the PC hearing. The Staff Report and Applicant's Narrative/application do not give the length of the driveway or total square footage. The Grading & Drainage Plan does show the modified driveway but does not include square footage. The length of the proposed driveway is significant, because it is used to determine total impervious surface, which is required by ordinance. The Council must deny the application for a Physical and Environmental Constraints Permit when the total square feet of the driveway, used to determine total amount of impervious surface necessary for any weighing of impacts, is undetermined. 3. Rear Yanl Setback: Applicants' proposed development fails to meet the setback requirements for the R-l Single Family Residential district. The rear yard setback for said district is 10 feet with an additional 10 feet for each story beyond one. The Site Plan shows a home with two stories and a rear yard setback of 14 feet. The ALUO requires a 20-foot rear yard setback. [18.20.04O(D)] A variance to place a garage within the setback, requires an SDUS process. 6 The Record shows applicant will use a new asphalt surfacing for the driveway which is considered pervious, however, how pervious is a question for debate. Information from those familiar with the pervious driveway surfacing is that it works better than impervious asphalt, but not as well as normal water infiltration and that it easily clogs up with sediment. This relatively new, untested ashpalt looks like rice crispie bar. It has mini tunnels. Any dirt on the top layer will block its percolation ability. The laying of "pervious asphalt" does not affect the "coverage" requirement of ALUO 18.20.040(E). The property is "covered" whether it be pervious or impervious asphalt when "normal water infiltration" will not occur. 23 AsbIand City Council 4. Applicants' property does Dot abut a pubBe street ALUO 18.68.030 specifically requires that a lot abut a public street. The subject property, on the south side, abuts an undeveloped protected riparian area dedicated to the City of Ashland: "A portion ofWrights Creek daylights near the southwest comer of the property and is situated between the driveway [the "driveway" is the one used by a neighbor - not by Applicant] and Grandview Dr." (planning Commission Findings of Fact, dated Feb. 13, 2007, page 2, # 10) The riparian area is not a street, which is defined as follows: A public right-of-way for roadway, sidewalk, and utility installation including the terms "road," "highway," "land," "place," "avenue, " "alley" or otha' similar designations. The entire width between the right-ot:way lines of every way which puvides for public use for the purpose of vehicular and pedestrian traffic. [18.08.670] Vehicular or pedestrian access to the property through the undeveloped Wrights Creek riparian area is not possible. Because there is no viable pedestrian or vehicular access to the property from a public street, Applicants propose getting access to their property by easement from a neighbor who owns the adjoining property to the east. Access by easement does not meet the requirements of ALUO 18.68.030, which requires that the property abut a street. s. What is the real slope? Various slope percentages have been given at different times. In its "findings offuct" the Planning Commission states "The site contains slopes of approximately a 14 percent grade sloping downhill in a easterly and northeasterly direction" In viewing a map with contour lines the southwest portion of the property shows a contour line of2140 feet; a contour line running across the northeast portion of the property is 2160 feet. Initially, the City granted Applicants a "variance" to allow for a driveway slope of 18% (the maximum allowed) for up to 200 feet of driveway. Applicants' Drainage map shows a retaining wall to be built. The slope on the property is severe enough that a survey to determine slope should be required, as suggested by the ALUO's. 6. Applicant's Development Proposal Is Subject to the Severe Constraints Land Ordinanee which is Part of the Physieal Constraints Chapter This property, part of which is in the Wildfire Zone (See Wildfire Map), part of which is in the Riparian area and the Floodplain corridor and on which major excavation will be done to put in an underground bottom floor, retaining wall(height and other dimensions not in the record), to build a driveway (length not in the record, but a guesstimate based on the length of lot lines + slope is in excess of250'), to put in a fire turnaround, and put in the entire underground infrastructure (sewage, storm drainage, electric, TV lines, etc.) is a ''Severe Constraint Property." The proposed development, should be subject to the Severe Constraint Lands ordinance, ALVO 18.62.100 which is part of the Physical and Environmental Constraints Chapter. The Commission is already reviewing the development under the Riparian/Floodplain provisions, but the changes elucidated in part by Mr. Thornton at the Planning Commission hearing, show that the development should be considered as a Severe Constraint Lands development. This property needs to have a slope survey done, because it is impossible to know what the actual slope is without such a survey. 24 Asbland City Council Applicable ordinances: A. Severe Constnint Lands are extremely sensitive to developmen~ grading, fiDing, or vegetation removal and, whenever possible, alternative development should be considered. B. Development of floodways is not permitted except for bridges and road crossings. Such crossings shall be designed to pass the 100 year flood without raising the upstream flood height more than six inches. ALUO 18.62.100 Severe Constnint Lands - Lands with severe development characteristics which generaDy limit normal development. The following lands are e1assitied as Severe Constraint Lands: 1. All areas which are within the floodway channels, as def"med in Chapter 15.10. 2. All lands with a slope greater than 35 percent ALUO 18.62.050 (E) While the foregoing Ordinance gives examples of Severe Constraint Lands, the examples are not exclusive. The subject property has severe development characteristics which limit normal development. The property, parts of which are in three regulated zones (riparian, floodplain, and wildfire), where significant excavation and change of the topography of the property is proposed, where Applicant proposes excavation and placement of fill in all three regulated areas (amount of fill not in the record or application), and where Applicant proposes to place retaining walls and build an underground 1st floor on the steepest part of the property, is a severe constraint property. IX. APPLICANTS' DEVELOPMENT PROPOSAL DOES NOT MEET THE ALUO FLAG DRIVE REQUIREMENTS 1. The Proposed Turnaround does not Meet the Minimum Turnaround Standards Required by the City Applicant has included a modified turnaround as part of the development but the turnaround is not one of the City approved turnarounds and does not met the "minimal turnaround standards" approved by the City. (See Turnaround Exhibit Attached). The turnaround is not included on the site plan, but The Preliminary Grading and Drainage Plan includes a drawing of a modified turnaround. Using the scale provided on the map of 1" = 40' the turnaround does not meet the minimum requirements of an 80'width and 50' from the centerline of the driveway lengthwise. 2. A Flag Drive Shared by Two Properties Must be 20' Wide with 15' paved surface 7 Staff erred when it approved a drive that has paved surfaces both 15' and 12' wide. Applicants propose two different widths for their flag drive: the part of the drive they propose to build in the ROWand across TL 411 has a 15' paved surface. Note that the Grading & Drainage plan shows a 15' wide drive. The mandatory requirement is a 20' drive (fifteen feet paved surface and five feet of unobstructed shoulder.) A short distance after the drive enters Applicants' tax lot, it narrows to a 12' paved surmce. Part of the flag drive is shared by two tax lots. The applicable ordinance provides: ALUO 18.76.060(8) Except as provided in subsection 18.76.060.K, the flag drive for one flag lot shall have a minimum width of 15 feet, and a 12 foot paved driving surface. For drives serving two lots, the flag 7 Applicants' attorney incorrectly states that the drive is 20 feet where it serves two dwellings.(Record, p 43) It is not now 20 feet and cannot be made into a 20 foot wide drive without constructing in the vegetated Riparian Preservation area. 25 Asbland City Council drive shall be 20 feet wide, with 15 feet of driving surface to the back of the first lot, and 12 feet, respectively, for the rear lot. Drives shared by adjacent properties shall have a width of 20 feet, with a 15 foot paved driving surface. (Ord. 2815 SI, 1998) Applicants' tax lot 500 is east of the tax lot sharing the drive (TL 501). Applicants' tax lot is the first lot - it is the first lot entered upon leaving the public ROW. ALUO 18.76.060(B) provides that 15' of driving surface shall extend to the back of the first lot. It also provides that drives shared by adjacent properties shall have a width of20 feet, with a 15 foot paved driving surface. While the entire driveway is not shared by both properties, they do share part of one drive. The ordinance does not limit the 15' requirement to that portion of a drive shared by both properties. It's common in the City that both properties sharing a flag drive do not use the entire drive. The ordinance standard does not change when one of the properties uses less of the length of the drive than does the other property. Applicants' driveway proposal is not in conformance with the provisions of the flag drive ordinance, which mandates a 15' wide drive to the back of the first lot. 3. Minimum standards of ALUO 18.76.060 The subject property is in a Wildfire Corridor that experienced two severe wildfires in 1910 and 1959. Staff stated in its conditions of approval that the proposed driveway is a flag drive subject to the requirements of ALUO 18.76.060. ALua 18.76.060 " .Flag drives and fire work areas shall be deemed Fire Apparatus Access Roads under the Uniform Fire Code and subject to aU requirements thereof. Flag drives greater than 250 feet in length shall provide a turnaround as defined in the Performance Standards Guidelines in 18.88.090. The City has adopted minimum turn-around standards (Attached as Exhibit). Applicants' Grading & Drainage Plan shows a proposed turn-around for their property, but it does not meet the minimum turn-around standards approved by the City for flag drives in excess of250'. The three possible approved turn-arounds all have 80 linear feet for turning, while Applicants' proposed turn-around has, at best, 40 feet and the turning area is impeded by the retaining wall. While the UFC gives the Fire Chief the ability to modify certain sections of the UFC, the Fire Chief does not have the authority to modify provisions of the ALUO. Neither the Fire Chiefnor the Planning Staff can modify the minimum turnaround standards. This application must be denied when it fails to meet the minimum turnaround standards. x. mE CITY'S RIPARIAN ORDINANCE VIOLATES ASHLAND'S COMPREHENSIVE PLAN AND STATEWIDE PLANNING GOAL 5 AND WAS SUBMITTED TO DLCD TO BE ACKNOWLEDGED WITHOUT NOTICE TO APPELLANT, WHO WAS A PARTY TO A LEGAL ACTION IN WHICH THE LACK OF ACKNOWLEDGEMENT OF THE PAPA WAS AN ISSUE Wrights Creek is designated as a protected riparian area by ordinance. Ashland's riparian ordinances must be in conformity with its Comprehensive Plan. The Ashland Comprehensive Plan (CP) has as two ofits Goals: to "[p]rotect the quality of riparian resource lands, and preserve their wildlife habitats" and "[t]o preserve and protect significant wetlands, and to mitigate potential impacts on these areas due to development and conflicting uses." (CP page IV-l1&13), Policy 25 requires the City to "Examine the Physical and Environmental Constraints chapter of Ashland's Land Ordinance concerning wetland and riparian areas, and 26 Ashland City Council insure that existing zoning regulations maintain these valuable areas in a natural state." (CP page IV-14). Given the express language of Policy 25, requiring that riparian areas be maintained in a natural state, the City's Physical Constraints ordinance, ALVO 18.62.040 violates its Comprehensive Plan when it fails to include adequate setbacks for the City's protected riparian areas and when it allows development which destroys the natural state of the protected areas. The City has failed to comply with the mandate of Policy 25 to insure that zoning regulations maintain the riparian areas in a natural state. Further, Wrights Creek riparian area is home to diverse wildlife including black bear, quail, and wild turkey. Protecting the wildlife habitat is a CP goal, and as Mr. Crowe points out, development on any portion of the Corridor affects the habitat of the entire stream. Earthmoving activities and other development affects a much larger area than the immediate area bulldozed or backhoed. Damage to the protected area may occur from depositing of sedimentation, water runoff and loss of habitat due to development on any part of the unit of land. The building plans/site plan show a home with the bottom floor underground, which one can conclude will require digging a deep recess for the underground floor. There is no discussion in the Staff Report about the effect of significant sedimentation deposits in the Wrights Creek area. The City riparian ordinance does not even meet the Goal 5 mandated minimum setbacks. And in 1997 and 1998, when the City amended its riparian ordinance, it failed to adopt setbacks mandated by OAR 660-023-0090(5) or to do an ESEE review. Local governments are required to apply Goal 5 in cOnsideration of a PAPA (post acknowledgement plan amendment) when the PAPA affects a Goal 5 resource. OAR 660-023-0250(3). A PAPA affects a Goal 5 resource when "[t]he PAP A creates or amends a resource list or a portion of an acknowledged plan or land use regulation adopted in order to protect a significant Goal 5 resource or to address specific requirements of Goal 5" OAR 66O.023.0250(3)(a). However, in December, 2005 the City was able to obtain DLCD acknowledgement for the amended ordinance but failed to give 45 days notice, as required by statute (except in the case of an emergency) and failed to give Petitioner Brodersen written notice, even though she was a party to the LUBA appeal in which she raised the issue ofunacknowledgement. Because the City of Ashland did not do an ESEE review before amending the ordinance, it must determine that the development is in compliance with Goal 5 by applying the safe harbor OAR, which would require, at a minimum, a 50 foot riparian setback. OAR 660-023-0090(5): "As a safe harbor in order to address the requirements under OAR 660-023-0030, a local government may determine the boundaries of significant riparian corridors within its jurisdiction using a standard setback distance from all fish-bearing lakes and streams shown on the documents listed in subsections (a) through (t) of section (4) of this rule, as follows: (a) Along all streams with average annual stream flow greater than 1,000 cubic feet per second (cfs) the riparian corridor boundary shall be 75 feet upland from the top of each bank. (b) Along aU lakes, and fish-bearing streams with average annual stream flow less than 1,000 cfs, the riparian corridor boundary shall be 50 feet from the top of bank. OAR 660-023-090(5). 27 Ashland City Council XI. CONCLUSION This case involves preservation of a riparian area versus development. It demonstrates that Staff must require strict compliance with the ALVO's during the planning process, because anything less is unlawful and contributes to delay and frustration for the Applicant. In 2004, when Applicant initially applied for a building permit, Staff did not require a Physical and Environment Constraints Permit. Subsequently, after an appeal to LUBA, Staff reversed itself and decided a Permit was necessary. The kind of driveway construction proposed for the riparian area ofan opened public ROW is inconsistent with the expressed community goals of sustainability and the desire to acquire all protected riparian areas in the City. The City is under no obUgation to aHow for private use of an open public ROWand should not aHow such unprecedented use. Furthermore, to permit extensive priVate use of the public ROW may be unlawful, because the ROW was dedicated for "public" purposes. When this area was partitioned, partitioners were required by the City to relinquish the area which is now the ROW in order for the partition to be approved. Ifthe City allows private use of the ROW, it's tantamount to taking property from one private citizen without compensation and giving it to another private citizen to use. The subject riparian area has already been dedicated to the City - the City does not need to commit funds to acquire it. Why would it give up this precious natural resource to private development? Why would it take on additional liability attendant to this kind of development? There are several ALVO requirements which have not been met by Applicants. Council can easily decide this matter by affirming that the riparian land use ordinance does not aUow for construction of a driveway in the setback area (20') or that the general topography of the area will not be retained. Council must deny a permit if it finds that Applicants have not met anyone of the Code requirements. To grant a permit for extensive driveway construction in an open City ROWand a City-owned protected Riparian Preservation area is unprecedented. The Council should deny Applicants' request for a permit. By: ~-~~~~- Bonnie Brodersen Appellant 28 Ashland City Council Minimum turn-around standards for public streets less than 250' in length and serving less than ~O residential units;.. or private flag drives in excess of 250' in length. ,- 90' -( 80' 1 20' j . .~leara~Ce Area .+ .f. 32' 1 20' J