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HomeMy WebLinkAbout2008-252 Findings - 960 Harmony Lane BEFORE THE CITY COUNCIL CITY OF ASHLAND, JACKSON COUNTY, OREGON December 16, 2008 In the Matter of a Request for a Condition'll Use Permit and Site Review Approval To Construct a New 592 Square Foot ) FINDINGS OF FACT Accessory Residential Unit above a Proposed Two-Vehicle Garage) CONCLUSIONS OF LAW for the Property Located at 960 Harmony Lane, within the City ) AND ORDER of Ashland, Jackson County, Oregon [PA #2008-00801] ) Applicant: Bill Emerson, Agent for Jendrisack and Berry ) I. NATURE OF PROCEEDINGS This matter comes before the City Council for the City of Ashland for a de novo appeal hearing. The appeal is from an October 14, 2008 decision of the City of Ashland Planning Commission Hearing Board approving inter alia a request for a conditional use permit and site review approval to construct a 592 square foot accessory residential unit above a proposed two story garage for property located at 960 Harmony Lane, The application was filed by the applicant with the Planning Department on May 19, 2008. The application was deemed complete on June 18, 2008. Notice of Preliminary approval was mailed on June 18, 2008 and published on June 28,2008. The application was called up to public hearing on June 27,2008, The concerns raised were the lack of paved access through the alley, generation of noise, light and glare, similarity in scale, bulk and coverage, and the storm water plan. A written sixty day extension of the 120 day deadline was submitted by the applicant. [Deadline is December 16, 2008.] Notification of the de novo public hearing before the Planning Commission Hearing Board on August 12,2008, was mailed on July 23,2008 pursuant to Chapter 18, Ashland Land Use Ordinance to area property owners and affected public agencies, Notice of the August 12, 2008, hearing was also published in the Ashland Daily Tidings on August 2, 2008, On August 12, 2008, the Planning Commission Hearing Board conducted a public hearing and considered the oral and written testimony presented, the staff report and the record as a whole, At the conclusion of the hearing a neighbor Ronald Doyle, 945 Hillview Drive, one of the parties who had participated in the hearing, requested that the record be held open for seven days, and the applicants requested an additional seven days to respond with final written argument. The requests were granted, the record was left open and final argument was required to be submitted after the record closed, Deliberations were continued to the September 9,2008 FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -1- meeting, On September 9,2008, the Planning Commission Hearings Board considered the record, including the evidence submitted by the opponents and the argument submitted by the applicant, and approved the application subject to conditions pertaining to the appropriate development of the site. On October 14, 2008, the Findings, Conclusions, and Order of City's Planning Commission Hearing Board were approved and duly signed by the Chairperson of City's Planning Commission Hearing Board, The Notice of Decision was mailed to the parties on October 16, 2008. Pursuant to the mandatory language of the ALVa [ALVa 18.108,l10A,(1)] "an appeal shall be filed prior to the effective date of the Commission decision." AMC 18,108.070 makes the Planning Commission decision effective fifteen (15) days after the date of mailing, in this case: October 31,2008. On October 29,2008, Appellant, Ronald Doyle filed an appeal to the City Council under ALVa 18.108.110, thereby appealing the Findings, Conclusions, and Orders of City's Planning Commission Hearing Board as relates to the conditional use approval and site review approvaL A single appeal application and appeal fee was also paid on October 29,2008. The stated reasons for the appeal included the following: · The proposal does not meet the code required setbacks. · The proposal does not meet the code required paving access, · The proposal does not establish that there are adequate facilities for urban storm drainage Notification of the de novo public hearing before the City Council on December 2,2008 was mailed, pursuant to ALVa to area property owners and affected public agencies. Notice of the appeal hearing was also published in the Ashland Daily Tidings on November 10, 2008, On December 2, 2008, the City Council conducted a public hearing in the City Council chambers; during the public hearing before the Council, testimony and exhibits were offered and received, in addition to the exhibits and documents reflected in the record before CounciL Pursuant to a request from opponent, Mr, Doyle, the record was left open for seven days to December 9,2008 at 9:00 p.m. The record was closed and the applicants were allowed to submit final written argument on or before December 16, 2008 at 7:00 p,m. Deliberations were continued to December 16, 2008, During the period the record was left open additional evidence was submitted by the opponent, by the applicant and by City of Ashland staff. [Applicant's materials were incorrectly labeled final argument in the Council packet for December 16, 2008], No written request was made to reopen the record pursuant to ORS 197.763(6)(c). Final argument was submitted on December 15, 2008 and distributed to the CounciL [The 120 days limit is therefore extended to December 23,2008 by operation ofORS 197.763(6)(e)] No new evidence was contained in the final argument. On December 16, 2008, the City Council deliberated and approved the application in file P A #2008-00801, with conditions, upholding the decision of the Planning Commission. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -2- _____~n.__ T Based upon the evidence in the record, the City Council makes the following findings of fact and conclusions of law: II. FINDINGS OF FACT 1) The Nature of Proceedings set forth above is true and correct and are incorporated herein by this reference, 2) The subject of Planning Action 2008-00801 is real property located within the City of Ashland ("City"), and described in the County Tax Assessor's maps as Tax lot 1500 of 391E 15AC (the "Property"), The street address of the Property is 960 Harmony Lane, Ashland, Oregon, 97520. 3) The Property located at 960 Harmony Lane is zoned R-1-7.5, [Single-Family Residential]. All adjacent parcels are also zoned R-1-7.5, parcels across Ross Lane are zoned R-1-10. The parcel is approximately 10,545 square feet in area and is approximately 3,045 square feet larger than the minimum lot size required in the zoning district 4) The applicant in Planning Action # 2008-00801 is Bill Emerson, Agent for Jendrisack and Berry (Applicant), 5) The applicant is requesting a Conditional Use Permit and Site Review approval to construct a new two-vehicle garage with a 592 square foot Accessory Residential Unit above, Site improvements are outlined on the plans on file at the Department of Community Development 6) The property is located on the east side of Harmony Lane, approximately 55 feet north of its intersection with Ross Lane. There is an existing'1,234 square foot, one-story single-family residence oriented to Harmony Lane at the front of the parcel, and an existing 403 square foot detached garage adjacent to the north property line near the rear of the parceL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -3- 7) Mature landscaping exists throughout the parcel. There are six trees, six-inches or larger in diameter-at-breast-height (d,b.h.) on the site, and the application notes that there are approximately 15 total trees on the site. No tree removal is proposed, The parcel slopes to the north at approximately six percent. III. FINDINGS APPLYING APPLICABLE CODE CRITERIA 1) The City Council finds and determines that the relevant approval criteria are found in or referenced in ALUO Section 18.20 Single Family Residential Zoning District, Section 18,72 Site Design and Use Standards, and Section 18.104, Conditional Use Permits. 2) The City Council finds that it has received all information necessary to make a decision based on the Staff Report, Staff Report Addenda, public hearing testimony, the exhibits and evidence received, as well as the record as a whole. 3) The City Council findings specifically incorporate the Findings of Fact, Conclusions of Law and Order of the Planning Commission Hearing Board dated October 14, 2008 as well as the findings in support of the application submitted by the Applicant in the Planning File, including the applicant's written responses to Opponents, said documents made a part hereof by this reference. The City Council findings also incorporate the written responses to Opponent in the December 2, 2008 staff report, as well as the September Staff report and Addendum said documents made a part hereof by this reference, (In the event of conflict between the City Council findings, and other findings, including the findings of the Planning Commission Hearing Board and the applicant's findings, the City Council findings control). FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -4- ~T~..~ 4) The City Council finds and determines based on the whole record, that Planning Action 2008-00801, a proposal to construct an approximately 592 square foot Accessory Residential Unit above a proposed two-vehicle garage, is in compliance with all applicable approval criterion. This finding is supported by the detailed findings set forth herein, as well as the incorporated findings and responses noted above, and by competent substantial evidence in the whole record, 5) The criteria for a Conditional Use Permit are described in Chapter 18.104 as follows: A conditional use permit shall be granted if the approval authority finds that the proposed use conforms, or can be made to conform through the imposition of conditions, with the following approval criteria. A. That the use would be in conformance with all standards within the zoning district in which the use is proposed to be located, and in conformance with relevant Comprehensive plan policies that are not implemented by any City, State, or Federal law or program. B. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to the subject property. C. That the conditional use will have no greater adverse material effect on the livability of the impact area when compared to the development of the subject lot with the target use of the zone. When evaluating the effect of the proposed use on the impact area, the following factors of livability of the impact area shall be considered in relation to the target use of the zone: 1. Similarity in scale, bulk, and coverage. 2. Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities. 3. Architectural compatibility with the impact area. 4. Air quality, including the generation of dust, odors, or other environmental pollutants. 5. Generation of noise, light, and glare. 6. The development of adjacent properties as envisioned in the Comprehensive Plan. 7. Other factors found to be relevant by the Hearing Authority for review of the proposed use. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -5- 6) AMC 18.104 A, [Conformance with Zoning]: A. That the use would be in conformance with all standards within the zoning district in which the use is proposed to be located, and in conformance with relevant Comprehensive plan policies that are not implemented by any City, State, or Federal law or program. This criterion requires compliance with the standards of the applicable Zoning District and Comprehensive Plan. The proposed use is an Accessory Residential Unit over a two car private garage. The property has an Ashland Comprehensive Plan designation of Single Family Residential implemented with the R-1-7.5 Zoning District on the property. The Council finds and determines that all applicable single family residential comprehensive plan policies are implemented in the R-1 zoning district in the Ashland Land Use Ordinance, The zoning district codified at AMC 18.20 sets forth the permitted and conditional uses in R-l. An accessory structure or use, that is, one incidental and subordinate to the main single family use of the property, is permitted outright. Private garages are incidental and subordinate to the residential use and are accessory structures permitted outright, [AMC 18,08,020], Accordingly, it is not the garage aspect of the proposal that requires the conditional use, The fact that the proposed accessory structure contains an Accessory Residential Unit, (ARU), requires compliance with specific conditional use criteria in AMC 18,20.030. H.: H. Accessory residential units, subject to the Type I procedure and criteria, and the following additional criteria: 1. The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone. 2. The maximum ,number of dwelling units shall not exceed 2 per lot. 3. The maximum gross habitable floor area (GHFA) of the accessory residential structure shall not exceed 500/0 of the GHFA of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA. 4. Additional parking shall be in conformance with the off-street Parking provisions for single-family dwellings of this Title. 1. The proposal must conform with the overall maximum lot coverage and setback requirements of the underlying zone. As proposed Accessory Residential Unit meets the required setbacks for the zone and complies with the required solar setback. The R-1-7.5 Zoning District on the property requires a six (6) foot side yard setback and a twenty (20) foot rear yard setback based on the two story structure, The proposed site plan shows twenty feet to the rear property line and a side yard setback greater than six feet. The proposed setbacks are in compliance with the requirements of the FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -6- zone. The site plan also demonstrates a total of 45 percent of the site is proposed to be covered with impervious surface, including existing and proposed structures, parking areas, patios, and walkways. The proposed coverage is also in compliance with the maximum 45 percent lot coverage allowed in the zone. Opponent asserts that lithe proposal does not meet the code required setbacks." Specifically opponent asserts that absent a survey it is impossible to determine compliance with the setback. Opponent further argues that the language of the code does not permit demonstration of compliance at a later time and that the conditional use permit must show that the application meets all the code standards. The Council rejects this argument as contrary to the plain language of the Code, AMC 18.104, the conditional use criteria, begins with the following text: A conditional use permit shall be granted if the approval authority finds that the proposed use conforms, or can be made to conform through the imposition of conditions, with the following approval criteria (emphasis added). The Council finds and determines that the conditional use chapter permits the imposition of a condition to require code setbacks be conformed to in the construction of the building. As evidenced in condition 1, "that all proposals of the applicant shall be conditions of approval" all proposals, including setbacks from property lines, solar setbacks, lot coverage, etc, as proposed in this application are required to be met at the time of building permit. Surveys are not required by Ashland Municipal Code for the identification of property lines for the purposes of planning action applications. Compliance with setbacks is required to be shown in the application and if the location of property lines is questionable or disputed, a survey may be required by the building division. There is no evidence to indicate that compliance with City setbacks will be a problem or that it is not feasible to comply. In response to the objections raised by Mr. Doyle, Stuart Osmus of Terrasurvey Inc, stated the following concerning his application materials in an em ail communication dated 12-09-08 now entered into the record: This is an accurate site survey of the lot located at 960 Harmony Lane in Ashland. The boundary lines shown are based on the property legal description and survey monuments found in the area. The existing residence, fences and garage are accurately shown on the survey based on field measurements taken on the site. Contrasted with bald allegations of the impossibility of compliance, the Council finds and determines that the surveyor's assertions of the accuracy of his work product, together with the work of Emerson Design, constitute competent substantial evidence of compliance with the setback or at a minimum, evidence of the feasibility of compliance at building permit. A condition has been added requiring verification of setback compliance by the Building Official. Finally, if setbacks cannot be met, as proposed, the approval becomes void and must be FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -7- ,--- modified. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions, The above is subject to condition of approval # 1 below. 2. The maximum number of dwelling units shall not exceed 2 per lot. Two dwelling units are permitted on this lot. An additional dwelling unit (total of two dwelling units) is proposed in the application. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions, The above is subject to condition of approval # 1 below, 3. The maximum gross habitable floor area (GHF A) of the accessory residential structure shall not exceed 500/0 of the GHF A of the primary residence on the lot, and shall not exceed 1000 sq. ft. GHFA. The existing house contains approximately 1,234 square feet of living area. Accessory residential units are limited in size to a maximum of half of the gross habitable floor area of the primary residence, The proposed accessory residential unit contains 592 square feet of living space. The proposal is in compliance with the size requirement because the accessory residential unit is less than one-half the size of the primary residence. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions. The above is subject to condition of approval # 1 below. 4. Additional parking shall be in conformance with the off-street Parking provisions for single-family dwellings of this Title. The application involves a request to construct a 592 square foot accessory residential unit above a proposed two-vehicle garage to be located behind the existing garage, with vehicular accessed from the alley. Four parking spaces are required for the proposed accessory residential unit and the existing primary residence. One space is provided in the existing driveway accessed from Harmony Lane, two spaces are to be provided in the lower level of the proposed garage, and two additional parking spaces are proposed to be provided outside of the garage, adjacent to the alley at the rear of the parcel. Parking exceeds the requirements of the Code. Based on the detailed findings set forth herein, the detailed findings of the Planning FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -8- -----r ----- Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions, The above is subject to condition of approval # 1 below, 7) AMC 18.104 B. [Adequate Public Facilities}: B. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to the subject property. Water, sewer, electricity urban storm drainage ...can and will be provided to the subject property This criterion requires a finding that adequate facilities can and will be provided to the" subject property" that is, the legal parcel of property subject to the development application. Conditions can be imposed to achieve compliance, [i.e. "proposed use conforms, or can be made to conform through the imposition of conditions,"] Adequate public facilities are available in the adjacent rights-of-way to serve both the existing and proposed unit. Such facilities are identified on a site plan and discussed in the applicant's materials, Water, sewer, and electric have sufficient capacity and are available in Harmony Lane. [The accessory residential unit is required to have its own electric meter, but can access the existing sewer and water service from the primary residence.] A December 8, 2008 memorandum from City Engineering staff identifies water and sewer lines in Harmony Lane and specifically notes that changes to these existing lines are not required as conditions of approval of this development. As regards sewer, the Engineering memo specifically notes that a new ejector pump [together with a macerating grinder] is required as a condition of approval to service the ARU, but that this installation can be connected to the existing lateral servicing the primary residential structure. This conclusion is supported by a December 9, 2008 email communication from Building/public Works staff, Rick Hackstock, indicating that these installations are common to address fixtures below the sewer line level. Opponent argues that the development does meet the public facility criteria for sewer because: "Being close to a sewer line does not avail the applicant if the applicant cannot get to the facility because of a legal impossibility (no easements, etc.), or because of natural laws such as the law of gravity." Opponent asserts that there is no evidence in the record that the development has access to sewer lines in Hillview Drive and Ross Lane and further opponent asserts that there is no FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -9- evidence in the re<;:ord to demonstrate that pumping to Harmony Lane is feasible. The Council finds and determines that this development does have access to sewer lines located in public rights-of-way. This property has frontage on City right-of-way [an alley and Harmony Lane] thus it has access to sewer lines in nearby streets such as Ross and Hillview. Such access is feasible and construction is permitted per the permit requirement noted in the City Engineering memo. However other access appears unnecessary. The Council further finds and determines that this development does have feasible access to sewer lines in Harmony Lane. The subject property contains an existing sewer connection to Harmony Lane which the City Engineering memo expressly states can be "plumbed into" to provide service to this ARU. The ejector pump and grinder proposed by the applicant will be appropriately sized to perform. Accordingly, the opponent's assertion of noncompliance is in error. The original application included a utility plan identifying stormwater drainage into a swale in the alley. Based on the concerns raised by a neighbor regarding 'inadequate storm drainage plan' the applicant revised the plan and then proposed to install a six-inch storm drain with four-inch stub-outs for each property below the subject parcel run down the alley to an existing storm water catchment which then drains through an easement to Hillview Drive. The opponent, questions the adequacy of the easement to handle the project's stormwater, indicating no evidence of the adequacy of the facility is in the record. Additionally, the addition of stub outs for adjacent properties and available capacity to service those properties was raised as an issue. Contrary to Opponent's assertion, the staff report indicates that City Engineering staff confirmed that the facilities as well as necessary easements and rights of way are available to serve the project. A December 8,2008 memorandum from City Engineering staff states: Storm Drainage - Storm drainage capacity will not be adversely impacted by this planning action. However, additional development on neighboring parcels or in the alley itself will trigger the need to review drainage at that time based on the proposed development design, The attached preliminary stormwater conveyance capacity calculation (attachment A) indicates that adequate capacity exists to accommodate the new ARU in the current piping, but it is the applicant's responsibility to verify existing system capacity, given the improvements proposed The Engineering Department revised the required condition of approval to read as follows: Storm Drainage - A detailed design of the storm drainage improvements prepared by a licensed engineer is required at time of building permit submittal. In this calculation, the engineer shall take into account the information provided below under the heading Investigation of Claim of Historical Natural Channel across Ross Lane (attachment B), The engineer shall also design the drainage layout to direct leakage from any TID valve FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -10- in or adjacent to new paving towards a catchment that flows into the storm drain, given recent events related to TID repair work. Public Works will require that the applicant leave the existing diamond plate lid in place and not replace the lid with a [sic] open grate as proposed, Public Works will also require that a new line extended down the alley not include stub-outs unless the submitted calculations can demonstrate that capacity exists to serve the stubs. Storm water detention and water quality shall be addressed in accordance with the Public Works Specifications in effect at the time, The applicant may elect to pipe directly to storm drain, use rainwater harvesting or pervious paving to decrease a portion of the pervious area, or detain a portion of the flows in order to improve stormwater quality. In addition to the above, to address opponent's assertions about the impacts of slope on the effectiveness of stormwater runoff facilities to service this project, the engineering design shall address whether pumping will be required for the facility to operate as designed, and if necessary, pumps shall be incorporated into the design, With the above addition, the above storm water requirements are required as a condition of approval. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that as regards water, sewer, electricity and storm water, the applicable criterion is met, or can be met with the imposition of conditions, The above is subject to condition of approval # 1 and 3b below. Paved access to and through the development & adequate transportation...can and will be provided to the subject property This criterion requires a finding that adequate facilities can and will be provided to the "subject property" that is, the legal parcel of property subject to the development application. Conditions can be imposed to achieve compliance, i.e. "proposed use confonns, or can be made to confonn through the imposition of conditions." Harmony Lane is a neighborhood street, and while it is improved [paved] to city standards, it lacks continuous sidewalks, Adequate transportation facilities are nevertheless available or can be made available in the adjacent rights-of-way to serve both the existing and proposed unit. The alley at the rear of the subject property is unimproved, The alley is accessed via Ross Lane, which is an unimproved City street. Opponent, Mr, Doyle states that since the access to the new structure is off of the unpaved alley which intersects with Ross Lane, which is partially paved, the criterion requiring "paved access" to the site is not met. The paving standard for access has been defined and applied by the City Council and the Planning Commission as the paved access to the subject site for FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -11- .------ providers of services such as the postal service, deliveries, visitors, etc., and Harmony Lane is the serviceable, addressable, legal frontage of the property. The City Council finds and determines that the subject property [960 Harmony Lane] was created with its legal access and frontage from Harmony Lane. Since Harmony Lane is an improved City standard street, the City Council finds, as it has in past applications, that the approval criterion for "paved access" has been met. To the extent the opponent proposed an "everything shall be paved" interpretation of the paved "to and through" standard, the City Council specifically rejects this interpretation of the ordinance. The Code requires a finding that adequate public facilities, including paved access, 1/ can and will be provided to the subject property." Paved access to the subject property is provided with Harmony Lane. Harmony Lane is improved to and through the frontage of the legal parcel containing the proposed development, The City Council finds and determines that Harmony Lane is improved to City standard on the frontage of the subject parcel to be developed and that the proposed ARU has or will have access to Harmony Lane, [See specifically the concrete pedestrian improvement on the plan for access to Harmony] On-street parking is also available on Harmony Lane and the subject property has an off-street parking space existing off Harmony Lane. That the garage (not subject to this conditional use process) and the ARU also have unimproved access off an alley does not detract from compliance with the criterion. The Criterion does not require, nor will it be interpreted to require that all accesses to the subject property be paved. City staff entered into the record drawings concerning the City's application of the "paved access to and through" criterion. Staff's exhibits depict "to" as commonly understood to reference paving only what is necessary just to access the subject property line (such as sufficient for a driveway), while "through" requires paving along the legal street frontage regardless of where the applicant proposed to place a driveway. Council's representation of the concept as relates to development of a single lot is set forth below: Paved Access To: Paved Access Through: In this case, Harmony Lane is fully paved to and through the frontage of the" subject property" on which the development is occurring. Opponent continues to assert, that staff is wrong. The opponent appears to arguing for a narrow interpretation of "to ".the development" to mean "to" the specific area on the property where construction of the building will occur. However, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -12- this interpretation ignores the language of the code requiring the provision of adequate public facilities, including paving, to the" subject property". The term" development" is used only generically in this section to reference that there is a proposal on the subject property, not to require additional paving to the building site within the parcel. The Council finds and determines that the focus of this criterion is the provision of adequate public facilities to the subject property to service the proposed development. To focus on the word "development" to the exclusion of the context of the public facilities criterion would result in unnecessary paving within properties [increasing lot coverage] and still not achieve the extension of public facilities to service adjacent lots [as set forth in the Council's interpretation in the drawing above]. Finally, the Council is mindful of case law holding that the Council is not bound by precedent, that is, the City is not compelled to repeat a mistaken interpretation of the Code. What matters is that the current application is correct. For the reasons stated herein, specifically the focus of the public facilities inquiry being the subject property, the City Council finds and determines that the prior interpretation and application of this criterion has not been in error, Further, the proportionality of the substantial public improvements suggested by the opponent must be weighed against the impacts of a relatively modest (592 square-foot) accessory residential unit. Approximately 275-feet of street improvements would be necessary to pave Ross Lane from the intersection of Harmony and Ross to the paved portion and pave the alley in comparison to the addition of approximately 7 vehicle trips per day generated by the accessory residential unit. Additionally, there were at least two minor land partitions, which created four lots accessed off Ross Lane which have similar vehicle trips per day as the proposed accessory residential unit that were not required to pave Ross Lane. Statements were made at that time by the City Council that large trees would impact the future improvements of Ross Lane and keeping Ross unpaved in the future was desired, Finally, to address the adequacy of transportation improvements and fire access, a condition has been added requiring that the applicants sign in favor of local improvement districts to install sidewalks on Harmony Lane, and for future improvements of the alley, if any. Because the furthest point on the proposed structure is greater than ISO' from the street fronting the property, an alternative to fire apparatus access will also be required. Clarification was added by the Fire Marshal on December 8, 2008, indicating that the alternative is installation of an approved automatic fire sprinkler system pursuant to Oregon Fire Code 503.1.1. Condition 5 (d) to this effect has also been added. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that as regards paved access to and through the development and as regards transportation, the applicable criterion is met, or can be met with the imposition of conditions. The above is subject to conditions of approval set forth below. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -13- 8) AMC 18.104 C [No Greater Adverse Effect on Livability]: C. That the conditional use will have no greater adverse material effect on the livability of the impact area when compared to the development of the subject lot with the target use of the zone. When evaluating the effect of the proposed use on the impact area, the following factors of livability of the impact area shall be considered in relation to the target use of the zone: 1. Similarity in scale, bulk, and coverage. 2. Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities. 3. Architectural compatibility with the impact area. 4. Air quality, including the generation of dust, odors, or other environmental pollutants. 5. Generation of noise, light, and glare. 6. The development of adjacent properties as envisioned in the Comprehensive Plan. 7. Other factors found to be relevant by the Hearing Authority for review of the proposed use. Under the ALUO an Accessory Residential Dwelling is a conditional use; as noted above, the garage is not a conditional use. This criterion requires the proposed conditional use to have no greater adverse material effect on the livability of the impact area than [as compared to] development of the subject property with the target use of the zone. The impact area is considered to be the adjacent properties and the notice area. [See description under II. 3 above], The target use of the zone is residential. The minimum lot size for R-1 is 7500 square feet. The livability criterion is only a comparison of the proposed use relative to the target use, The Council expressly finds and determines that this criterion is not a uno adverse impact" standard. The standard is not a standard requiring the reduction, minimization or mitigation of adverse impacts. For example, Opponent's December 52008 submission states that U[t]here is no evidence in the record to show how,this proposal will mitigate all these problems [i.e. noise, light, glare, and dust] to show that it meets the approval criteria of section 18.104.050,C." The Council expressly rejects opponent's assertion of a mitigation of adverse impacts standard. The target residential use of the zone will have adverse impacts on livability, such as increased noise, light, glare and dust associated with residential use; the conditional use, which is also residential, may have no greater adverse material effect. AMC 18.104,C. is a comparison standard. A comparison standard such as is presented in AMC 18.104.C. is almost pointless as a standard when both the target use (residential) and the FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -14- proposed use (residential) are the same, That is, the addition of a residential use could hardly have a greater adverse material impact on livability of the impact area than the development of the lot with the target residential use of the zone, Essentially, a residential use has the same adverse impact as a residential use, The fact that the proposal is for additional residential square footage in the form of a detached residential unit, and not just expansion of the square footage of the existing unit is of little consequence. For example, in R-1 the size of the residential unit on the lot is bounded only by the coverage requirement; in addition, duplexes are permitted use in the R-l zone, [albeit on corner lots], Even if the addition of a 597 square foot ARU is considered the equivalent of a duplex, it is still equivalent in adverse impact to the target residential use, which allows a duplex or larger residential unit subject only to coverage, [The existing unit is only 1234 square feet], Finally, the Council finds and determines as evidenced in the record, that this lot as well as numerous adjacent lots shown in the subdivision area map are oversized, thus there is substantial under-utilized residential use density available which could be realized if the performance standard subdivision standards are applied to the underlying subdivision. While redevelopment as a performance standard subdivision is not practical, available residential target use density is appropriately utilized by ARU infill, through the conditional use process, including the subject residential proposal. Factors of livability are enumerated and compliance with the standard is analyzed below: 1. Scale, Bulk, Coverage and Architectural Compatibility The proposed unit is 592 square feet and will be above a proposed two-vehicle garage, The applicants are proposing adequate parking, and as proposed the lot coverage and setbacks comply with that allowed in the zone. The modest size of the proposed unit and its placement at the rear of the parcel are appropriate and architecturally compatible with the bulk, scale, coverage and development patterns found in the vicinity. Opponent argues the project (which is two stories) is not similar in bulk and scale and must be denied. However, the criterion is not "the project must be similar in bulk and scale" the criteria involves a comparison of the bulk and scale of the proposed use in relation with the target use of the zone. The target use, is also residential, and allows two stories in accordance with the same setbacks as proposed here. Accordingly the proposed use and the target use have equal impacts on the impact area. The proposed residential use will have no greater adverse mater~al effect on the livability of the impact area than the development of the subject property with the target residential use of the zone. 2. Generation of Traffic and Effects on Surrounding Streets FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -15- Harmony Lane provides access to the subject site. Harmony Lane is a neighborhood street and is currently improved to 25-feet in width with a paved driving surface, curb and gutter. Large stature trees are currently in place and serve as the street trees. The Institute of Transportation Engineers estimates that c;\ residential unit of 500 square feet or less will generate approximately 6.7 automobile trips per day and the proposed unit at 592 square feet will generate slightly more than that. Given the proximity of the site to a park, shopping, and Siskiyou Boulevard, non-motorized trips are a viable option. Specifically, under this factor, the ALVa notes that "Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities." The parcel is within walking distance of Siskiyou Boulevard and the bus route, which makes walking, bicycling and transit viable options for residents of the accessory residential unit. The application notes that the proposed accessory unit is traditional in style, with a small cottage design Opponent argues the project will generate twice as many vehicle trips as a single family use. As noted above, the Council finds and determines that this is not correct. While the proposed use will generate some additional residential vehicular traffic, it will also generate pedestrian, bicycle and mass transit usage, which is seen as positive. The Code criteria is not "the project must not generate additional traffic." The criterion requires a comparison of the traffic in relation with the target use of the zone. Owing to the modest size of the unit, there is a modest increase in all forms of traffic, but this residential use creates no greater adverse impact on the livability of the impact area than would a large residence housing an extended family. The target use, which is also residential, allows almost any number of residents, any number of vehicles, unrestricted vehicular access to the surrounding unimproved roads and alleys; accordingly the proposed use and the target use have nearly equivalent impacts on the surrounding impact area. Accordingly, the Council finds and determines that the proposed accessory residential unit will have no greater adverse affect on the livability of the neighborhood than would full development of the site to it's the target, residential use. In terms of effect on surrounding streets, parking was identified as a factor of livability. Four parking spaces are required for the proposed accessory residential unit and the primary residence; five parking spaces are being provided on site. One space is provided in the existing driveway accessed from Harmony Lane, two spaces are to be provided in the lower level of the proposed garage, and two additional parking spaces are proposed to be provided outside of the garage, adjacent to the alley at the rear of the parcel. Testimony at the August 12th Planning Commission hearing indicated there is an on-street parking issue on Harmony Lane with sufficient demand for the on-street parking spaces. The applicant proposed two additional parking spaces on their site which would alleviate some of the parking demand. The two additional parking spaces are not required. Based on the concerns raised by the neighbors pertaining to the amount of impervious area, the applicant agreed at the August hearing to construct the two extra parking spaces with a pervious material, a condition to this effect has been added. In a recent accessory residential unit FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -16- application in the neighborhood, residents of Harmony Lane and Garden Way expressed considerable concern with the impact of existing on street parking demand to neighborhood livability. The applicants have proposed to address their parking demand on site at the rear of the subject property, rather than utilizing an on-street parking credit, and this proposal works to effectively minimize what is typically one of the most noticeable impacts of infill development in an established neighborhood. While the proposed residential use has parking impact, the impacts are met on-site. The target residential use of the zone allows any number of vehicles, accordingly, the proposed use and the target use have nearly equivalent impacts on the surrounding impact area.. Even without the applicant's additional efforts to meet the parking requirements on-site, the proposed accessory residential unit will have no greater adverse affect on the livability of the neighborhood than would full development of the site to it's the target, residential use. 3. Architectural compatibility with the impact area. The proposed accessory residential unit is above a proposed two-vehicle garage. Though this would be one of the first two-story structures located in this section of Harmony Lane, as long as the required 20-foot rear yard setback and Solar Setbacks can be complied with, a two-story structure is permitted. For the purposes of Conditional Use Permits, in the past, the architectural compatibility has been reviewed pertaining to style, design and material usage similarities and compatibility - not solely height or number of stories. In response to the concerns raised regarding architectural compatibility, bulk and massing, the applicant has provided an alternative East elevation (alley facing) which shows an additional roof line over the window on the south side of the elevation. The findings set forth under bulk and scale above are incorporated herein by this reference as they relate to architectural compatibility. The proposed accessory residential unit will have no greater adverse affect on the livability of the neighborhood than would full development of the site to it's the target, residential use. 4. Air quality, including the generation of dust, odors, or other environmental pollution. Opponent, addresses the generation of dust from the unpaved street and alley in his objections. The findings under adequate public facilities above are incorporated herein to demonstrate that there is no greater adverse impact based on the proposed use than from the target use, thus paving is not required to mitigate such alleged impact. Specifically, as noted above, the target residential use of the zone does not limit the number of motor vehicles using the alley. Garages and vehicular access to the alley is unconstrained in the R-1. The findings set forth under traffic impacts as they relate to dust, odors and pollution, above are incorporated herein by this reference. Finally, to the extent storm water issues are considered "other environmental pollution" the findings above under adequate public facilities are incorporated herein by this reference to demonstrate that the proposed use will have no greater adverse impact than the target residential use. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -1 7- 5. Generation of noise, light, and glare. Opponent, Mr. Doyle also expressed concerns regarding the generation of light and noise. It is not anticipated that the proposed use would create more dust, noise light and glare than the wide range of occupants that can reside in a larger residence. The findings concerning traffic impacts, and bulk and scale above, as they relate to noise light and glare, are incorporated herein by this reference. According to the Site Design requirements, parcels are not permitted to directly illuminate adjacent parcels and all lighting details will be required to demonstrate this requirement is being met with the building permit submittals. Additionally, because of the size of the accessory residential unit and that, it is only large enough for one or two residents the generation of light and noise will be minimal. Past planning approvals of accessory residential units have included conditions requiring screening of adjacent properties through fencing, lighting type and placement and door placement to mitigate or reduce potential noise and light impacts to adjacent properties. The level of mitigation requirements should be based on an evaluation of a comparison of the noise and light impacts of the proposal with the target use of the property, which is a single-family home. The proposed accessory residential unit will have no greater adverse affect on the livability of the neighborhood than would full development of the site to it's the target, residential use. 6. The development of adjacent properties as envisioned in the Comprehensive Plan. The proposed accessory residential unit will have no greater adverse affect on the livability of the neighborhood in terms of development of the adjacent properties than would full development of the site to it's the target, residential use. 7. Other factors found to be relevant by the Hearing Authority for review of the proposed use. The Planning Staff report contains the following discussion which is incorporated herein and accepted as supportive of the proposal under this criterion by the City Council: Accessory residential units provide a different housing type. Accessory residential units were added as a conditional use in the R-1 Single-Family Residential zoning district in 1991. This was based upon the recommendation from the" Affordable Housing in Ashland" report which was adopted by the City Council in May of 1990. ~dditionally the "Housing Needs Analysis" and the "Affordable Housing Action Plan", adopted by the City Council in 2002 identified a need for accessory residential units. The addition of accessory residential units is consistent with several goals and policies of the Ashland Comprehensive Plan that follow. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -18- "Ensure a variety of dwelling types and provide housing opportunities for the total cross-section of Ashland's population, consistent with preserving the character and appearance of the city." Goal, Chapter VI, Housing "Strive to maintain a diversity of population groups in Ashland, especially if increased growth pressure leads to more expensive housing. Concentrate on population groups that are important to Ashland's character, such as students, artists and actors, employees of the city, school district and college, service personnel who work in the tourism industry, hourly wage earners in local industries and local residents who have not retired and live on fixed incomes." Policy V -4, Chapter V, Population "It is the City of Ashland's goal to maintain a compact urban form and to include an adequate supply of vacant land in the city so as not to hinder natural market forces within the city, and to ensure an orderly and sequential development of land in the city limits." Goal, Chapter XII, Urbanization In general, few complaints have been received once the accessory residential units are constructed and in use, and complaints tend to focus on units that are existing but did not go through the Conditional Use Permit process. In the Garden Way-Harmony Lane neighborhood, there are multiple approved accessory residential units located at 869 Garden Way (PA 2002-073), 904 Garden Way (PA2004-052 (has since been inactive)), 968 Garden Way (PA 2004-161). No complaints regarding these accessory units have been filed. In sum, the City Council expressly finds and determines that the proposed ARU use will not have any greater adverse material effect on the livability of the impact area than the development of the property with the target residential use of the zone. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions. 9) Site Design Review: AMC 18.72. Two or more residential units on a single lot require application of the Site Design Review. The criteria for Site Review are described in Chapter 18.72.070 as follows: A. All applicable City ordinances have been met or will be met by the proposed development. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -19- B. All requirements of the Site Review Chapter have been met or will be met. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options. A. All applicable City ordinances have been met or will be m.et by the proposed development. The City Council finds and determines that this criterion is a general reference to all the mandatory requirements for the application. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions. B. All requirements of the Site Review Chapter have been met or will be met. The City Council finds and determines that this criterion is a reference to applicable specific site design review criteria contained in Chapter 18.72, (such as specific criteria for wireless communication facilities in 18.72..180. There are no specific requirements for ARUs in 18.72. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions. C. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. The City Council finds and determines that this criterion is a reference to the separately bound and adopted site design standards. To the extent these standards have been addressed in findings above, (e.g. parking) those findings are specifically incorporated herein by this FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -20- reference. 'Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions. D. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter 18.88, Performance Standards Options. Findings of compliance with the adequate public facilities standard in AMC 18.104 B. as set forth above are specifically incorporated herein by this reference. Based on the detailed findings set forth herein, the detailed findings of the Planning Commission Hearing Board, the findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the City Council finds and determines that this criterion is met, or can be met with the imposition of conditions. IV. ORDER In sum, the City Council concludes that the proposal represented in Planning Action 2008-00801 to develop an approximately 592 square foot Accessory Residential Unit above a proposed two- vehicle garage is in compliance with all applicable approval criteria. Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the evidence in the whole record, the City Council hereby APPROVES Planning Action #2008- 00801, subject to strict compliance with the conditions of approval, as set forth in the body of this document, incorporated herein, and as set forth below. The following are the conditions and they are attached to the approval: 1) That all proposals of the applicant shall be conditions of approval unless otherwise modified here. The building official shall verify setback compliance prior to issuance of the building permit. 2) That the plans submitted for the building permit shall be in substantial conformance with those approved as part of this application. If the plans submitted for the building permit are not in substantial conformance with those approved as part of this application, an application to modify this Conditional Use Permit approval shall be submitted and approved prior to issuance of a building permit. FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -21- 3) That building permit submittals shall include: a) Exterior lighting details demonstrating that the lights are appropriately shrouded, so there is no direct illumination of surrounding properties. b) That the sewer and stormwater conditions set forth under paragraph 7 above, concerning adequate public facilities, are incorporated herein by this reference. The improvements shall be designed by a licensed Engineer. The plans shall be reviewed and approved by the City of Ashland Engineering Division prior to the issuance of a building or excavation permit. c) That the disturbed alley surface shall be restored to their original state following the installation of the sto~m drainage line. d) Utility, drainage and grading plans shall be provided for the review and approval by the Building and Engineering Divisions. e) That a revised landscaping, irrigation and tree protection plan to include: 1) irrigation details satisfying the requirements of the Site Design and Use Standards Water Conserving Landscaping Guidelines and Policies; 2) the expansion of the proposed landscape buffer strips adjacent to the rear parking spaces along the alley to a minimum of five feet in width as required in the Site Design and Use Standards Parking Lot Landscaping and Screening Standards shall be provided with the building permit submittals. f) Solar calculations in the requisite formula demonstrating compliance with Solar Access Standard B, and a clear identification of all shadow producing points and their height to natural grade. 4) That prior to the issuance of a building permit: a) The applicants shall sign in favor of a Local Improvement District (LID) for the future improvement of Harmony Lane and the alley. b) The applicants shall sign an agreement not to install kitchen facilities in the existing garage, or to utilize the existing garage as a separate unit. With this approval, the site is approved only for the primary residence and a single accessory residential unit. c) All necessary building permits fees, including those for the new electrical service to the accessory residential unit, utility fees, and system development charges for water, sewer, storm water, parks and transportation shall be paid. 5) That prior to the issuance of a certificate of occupancy: a) That if garbage service is to be provided by the property Qwners, an opportunity to recycle site shall be located on the site, or an individual recycle bin shall be provided to all units in conformance with 18.72.040. Screening for the trash and recycling enclosure shall be installed in accordance with the Site Design and Use Standards FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page-22- b) A separate, underground electric service for the accessory residential unit shall be installed in accordance with Ashland Electric Department requirements. c) A separate address for the accessory residential unit shall be applied for approved by the City of Ashland Engineering Division. Addressing shall be visible from the public street. d) The requirements of the Fire Department for approved addressing and installation of smoke alarms complying with current O.R.S. requirements shall be addressed. Because the furthest point on the structures is greater than 150' from the street fronting the property, an alternative to fire apparatus access is required. Oregon Fire Code 503.1.1 allows a modification to this access requirement when fire sprinklers are installed. e) All landscape improvements, including the pedestrian walkway from the proposed accessory residential unit to Harmony Lane and the irrigation system shall be installed in accordance with the approved plans, inspected, and approved by the Staff Advisor. f) The parking spaces shall be installed with pervious paving and in accordance with the approved plan and the off-street parking standards, inspected, and approved by the Staff Advisor. A minimum of 22-feet of clear back-up space shall be provided behind each of the required parking spaces. g) All necessary building inspections shall be approved prior to the issuance of a certificate of occupancy for the new accessory residential unit. 6) That the recommendations of the Tree Commission, where consistent with the applicable approval standards and with final review by the Staff Advisor, shall be conditions of this approval. Ashland City Council Approval ~ - -- I~ /IG, /08 Date' I d approved by the full Council this 16th day of December, 2008 Date:/dj&.! of FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -23-