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HomeMy WebLinkAbout1996-1217 Exhibit 0-2 PA 96-094 , BEFORE THE CITY OF ASHLAND STATE OF OREGON NOW COMES BEFORE THE CITY COUNCIL,) CITY OF ASHLAND OREGON, AN APPEAL ) OF THE PLANNING COMMISSION ORDER ) APPROVING THE TENTATIVE PLAT FOR ) WESTWOOD SUBDIVISION, PLANNING) ACTION 96-094, THE APPELLANTS) ARE THE WESTWOOD NEIGHBORS, THE ) RICHARD STEVENS COMPANY AGENTS ) FINDINGS FOR DENIAL INTRODUCTION. This appeal was filed by individuals who have joined together and are now identified as the "Westwood Neighbors", The participants and members of the Westwood Neighbors organization are identified in Exhibit A attached to these findings. The participants, collectively and individually, have standing the Planning Commission decision as they participated in the proceedings before the Planning Commission and many of the participants are within the notice area and have standing by virtue of the identified impact area. Both the individuals and the Westwood Neighbors have standing before the City of Ashland. This appeal is based on two primary areas of concern. These are: 1. Procedural Errors 2. Failure to adequately address applicable criteria. I. PROCEDURAL ERRORS: Procedural requirements for "Notice of Public Hearing" are stated in ORS 197.763(3). ORS 197.763(3)(b) requires that the notice of hearing include: "(b) List the applicable criteria from the ordinance and the Dlan that apply to the application at issue:" (emphasis added). The notice of public hearing before the Planning Commission and now before the City Council states: 1 City of Ashland Planning Exhib'it EXHIBIT l) . ";3.- , . -~q ".~ . PA# DATq'2 "a. That the development meets all applicable ordinance requirements of the City bf Ashiand." It is apparent that the notice of City of Ashland, is inadequate requirements. public hearing, mailed by the when compared with the ORS There are hundreds of ordinances in the City of Ashland and there is no possible method whereby a participant can provide a well reasoned response to the "criteria" as provided in the notice of hearing. The state statute requires that the applicable criteria be extracted from the ordinance and plan and be listed in the notice of hearing. The notice of hearing shall list the applicable criteria from the ordinance and the plan. It is not sufficient to state that an application "meets all applicable ordinances of the City of Ashland" . Without knowledge of the criteria, persons who are impacted by the application and chose to participate in the proceedings were placed at a significant disadvantage due to the procedural error in the notice of hearing. The due process rights of the Appellants have been prejudiced. LUBA in Oregon Natural Resources Council v. Oregon City (29 OR LUBA 90) states: "We agree with petitioner that in listing the entire zoning ordinance as the applicable criteria, the city's notice of its initial evidentiary hearing failed to comply with ORS 197.763(3)(b)." The notice of hearing, from the initial evidentiary hearing before the Planning Commission, 'failed to list the applicable criteria from "all ordinance requirements of the City of Ashland". The above procedural error was further compounded at the commencement of the Hearing by the Planing Commission. ORS 197.763(5)(a) requires that the "applicable substantive criteria" be articulated. This was not accomplished. At best the criteria from the notice was stated and the deficiency of the notice was carried forward to the public hearing. Once again the due process rights of the Appellants were prejudiced. The notice of hearing inadequate to meet state committed by the Council mailed by standards. notice. the City Council was also The same procedural error was CONCLUSION. 2 Based on the above discussion, the due process rights of the Appellants have been denied. The state statute requires that the applicable criteria be listed from the ordinance and plan. It is not sufficient to state that the application meet all applicable ordinance requirements of the City of Ashland. Based on the procedural error, the application should be denied. The application may be reconsidered by the City of Ashland when the proper notice of hearing is prepared and lists all of the applicable criteria as required by ORS 197.763(3)(b). FINDING. The procedures used by the City of Ashland failed to comply with the requirements of ORS 197.763(3)(b) and ORS 197.763(5)(a). Therefore, the decision of the Planning Commission regarding Planning Action 96-094 is reversed. II. FAILURE TO ADEQUATELY ADDRESS APPLICABLE CRITERIA. A corollary error to the procedural errors addressed above is that it not possible for the Planning Commission to reach a conclusion that the application met the "requirements of all applicable City of Ashland Ordinances" without knowledge of the applicable criteria. The Planning Commission in their order dated October 8, 1996, Section 2, Conclusory Findings, stated: "2.2 The Planning Commission finds that the proposal for a seven-lot subdivision meets all applicable criteria for Outline Plan approval described in the Performance Standards Chapter 18.88." This is the first indication of any criteria identification and this conclusion does not specifically identify the criteria applied to the application. Also, the Planning Commission did not state how the application met these identified sections of the Ashland Code nor did the Planning Commission make a definitive finding that "all applicable ordinances of the Ashland" have been satisfied. In OLCO v. Clatsop County, No. 195-163, 4/1/96, LUBA stated: "Where a local government identifies a particular prov1s1on as an applicable approval standard, it must demonstrate in its findings that the application complies with the identified standard. Gettman v. City of Bay 3 City, 28 Or LUBA 116 (1994). Those findings of compliance must state the facts the local government relies on and explain why those facts lead to the conclusion that the standard is satisfied.... In addition, findings must address specific issues raised by a party below, which are relevant to compliance to the approval criteria." The decision offered by the Planning Commission is conclusory. The Planning Commission did not state how the application met the requirements of Section 18.88 of the Ashland Code nor did the Planning Commission identify the evidence in the record which would support their conclusion. The reciting one section of the Ashland Code, Section 18.88 does not satisfy the listed criterion of "all applicable ordinances of the City of Ashland." In addition, issues were raised by parties before the Planning Commission. These issues were raised without knowledge of the criteria, nevertheless, the Planning Commission had an obligation to address these issues and failed to do so. Given the criteria listed in the notice of hearing and comparing that notice to the Planning Commission order, it is apparent that the Commission failed to adequately address the listed criteria. The following are examples of the shortcomings of the Planning Commission order: 1. That the development meets all applicable ordinance requirements of the City of Ashland. The Commission concluded that the application satisfied Section 18.88 of the Ashland Code. Section 18.88 does not contain all of the applicable ordinances of the City of Ashland For example, it appears that Chapter 18.62 has application as well. There is the potential that a large number of Ashland Ordinances will require review prior to reaching a conclusion that the application has met this requirement. 2. Applications are required to demonstrate that "key City facilities can be provided". These facilities are identified as sewer, water, paved access to and through the development, electricity, urban storm drainage, police and fire protection and adequate transportation. The Planning Commission concluded that sewer and water are available; concluded that the street to the development would be paved; and, concluded that electrical service is available. The Planning Commission order is silent regarding, storm sewer, police protection, fire protection, and adequate transportation. Further, the Commission failed to determine whether or not "the development will cause a City facility to operate beyond capacity". 4 3. The third criterion requires that natural features be identified and be set aside. Of the natural features identified in the Planning Commission order, only trees were of apparent concern to the Commission ( Section 2.4, Planning Commission Order). There are other features which require consideration by the City of Ashland, such as, Wrights Creek. This is especially important when reviewed with the forth criterion. There may be other significant physical features on site which require consideration by the City. 4. The fourth criterion listed states: "That the development of the land will not prevent adjacent land from being developed for uses shown on the Comprehensive Plan." The primary concern with this particular criterion is that the Planning Commission failed to make any conclusions of compliance or findings that this criterion had been met. An obvious issue is that phase 2, (lots 8, 9 and 10) is served by a "future 36 foot dedicated way" which must cross Wrights Creek. In crossing Wrights Creek, the identified dedicated way will consume a large portion of the "woodland preserve" as shown on the submitted maps (see criterion 3 above). Further, the tentative plat, as approved by the Commission, would leave that portion of the property outside the City jurisdiction (lot 11) with questionable access. Without adequate and usable access, the property cannot be developed. 5. Criterion 5, requiring maintenance of open space and the phased construction of open space and common areas was not addressed by the Commission in their adopted order. There was no determination that this particular criterion was satisfied. 6. The last criterion listed requires a determination that the density of the project is consistent with the underlying zoning. The Planning Commission Order is silent on this criterion. CONCLUSION. Based on the above discussion there are two identified shortfalls to the Planning Commission Order of approval. First, the Commission failed to identify all of the criteria which may apply to this application and yet they made a finding that "all applicable ordinances of the City of Ashland" have been met. This is a conclusory finding and not supported by the record. Secondly, the findings made by the Commission do not adequately address the criteria which were provided in the notice of hearing. 5 In some cases the criteria were partially addressed. In other cases the criterion were completely ignored. FINDING. Based on the above discussion and conclusions it is found that the Planning Commission Order of approval for Planning Action # 96-094 is conclusory and is not supported by the record. In addition, the Planing Commission failed to fully address the listed criteria. Wi thout an adequate identification of applicable criteria and evidence to support a land use decision, the decision of the Planning Commission regarding Planning Action # 96-094 is reversed. Submitted on be-half of the Westwood Neighbors and those individuals identified herein. The Richard Stevens Company Richard Stevens 6 -. ~' ." . EXHIBIT A We, the undersigned neighbors in the Westwood Street area, would like it to be noted for the record that we are opposed to an LID in our neighborhood, We feel that it should be the developer's responsibility to pay for the street, curbs, gutters & sidewalks which will provide access to the subdivision at the end of Westwood Street. 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