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HomeMy WebLinkAbout2004-109 Findings - DeBoer BEFORE THE CITY COUNCIL FOR THE CITY OF ASHLAND STATE OF OREGON IN THE MATTER OF AN APPLICATION ) FOR A PHYSICAL CONSTRAINTS REVIEW ) PERMIT FOR THE PURPOSE OF ) CONSTRUCTING A SINGLE FAMILY ) DWELLING ON LAND ZONED R-1-7.5, ) CLASSIFIED AS HILLSIDE LANDS AND ) WITHIN A RESIDENTIAL HISTORIC ) DISTRICT IN ASHLAND, OREGON ) ) ) Sidney and Karen DeBoer: Applicants FINDINGS OF FACT AND CONCLUSIONS OF LAW Planning Action 2003-118 NATURE OF THE APPLICATION; PROCEDURAL BACKGROUND Sidney DeBoer and Karen DeBoer ("Applicants") propose to construct a single family dwelling on land zoned Single-Family Residential (R-1-7.5). The property is designated Hillside Lands pursuant to Ashland Land Use Ordinance (ALUO) Chapter 18.62 and is within a Residential Historic district. This proposal also requires the demol![tion of an existing dwelling which was applied for under a separate application which was approved and not appealed.~ This application was filed and received by the City of Ashland ("the city") on September 2, 2003. On October 10th, 2003, the application was deemed complete by staff. Following public notice in accordance with law, on November 12, 2003 the application was heard by the Ashland Planning Commission Hearings Board ("Hearings Board" or "Board") in an open public hearing. During the hearing, all parties were afforded an opportunity to present evidence and make arguments. Following the public hearing the record was kept open for seven (7) days to allow opponents to submit additional evidence, and for an additional seven (7) days for Applicants' final rebuttal. Following the conclusion of public testimony, the public hearing and record were closed and the Board deliberated to a decision. The Board conditionally approved the application on a 3 to 0 vote. Following the Board's adoption of a final order on this matter the same was appealed to the City Council ("Council"). Following public notice in accordance with law, the Council conducted a public hearing on April 6, 2004. The hearing was continued to April 8, 2004 and Applicants intend to retain the existing accessory garage structure. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 1 City of Ashland, Oregon at the conclusion of public testimony, the public hearing and record were closed and the Council deliberated on the matter. The Council heard the matter de novo and received new evidence and testimony from Appellants/opponents and Applicants, as well ets the entire record from the Board hearing. Following close of public testimony and deliberation, and upon a motion duly made and seconded, the application was conditionally approved on a 5 to 1 vote.2 These Findings of Fact and Conclusions of Law are in support of the Council's decision in this matter. EVIDENCE BEFORE THE HEARINGS BOARD AND CITY COUNCIL, The following evidence was before the Hearings Board and City Council: Record Page 12-9-03 Staff Report Addendum 1-3 11-25-03 Applicant's Final Rebuttal 4-19 11-19-03 Opponent's Additional Testimony (Colin Swales) 20-58 11-19-03 Opponent's Additional Testimony (Bryan Holley) 59-63 11-19-03 Opponent's Additional Testimony (Bill Street) 64-68 11-17-03 Opponent's Additional Testimony (George Kramer) 69-70 11-12-03 Hearings Board Hearing's Board (PCHB) Minutes 71-78 11-12-03 Opponent's Exhibits from November 12, 2003 PCHB Meeting 79-85 11-12-03 Applicant's Exhibits from November 12, 2003 PCHB Meeting 86-99 11-06-03 Tree Commission Comments/Minutes 97 11-5-03 Historic Commission Minutes 98-103 11-12-03 Letter from Claudia Everett 104 11-12-03 Letter from Charles and Margaret Howe 105 11-10-03 Letter from Bill and Shirley Patton 106 11-05-03 Email Correspondence from David Sidman signed by Phyllis Wetzel 107 11-12-03 Letter Requesting Withdrawal from Public Hearing 108 (B.G. Hicks & Paula Daystor) dated November 10, 2003 2 Ashland Mayor Alan DeBoer recused himself from this matter and did not participate in the proceedings. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 2 City of Ashland, Oregon 10-27-03 10-22-03 10-20-03 10-20-03 10-20-03 11-03-03 10-16-03 10-28-03 10-10-03 10-10-03 9-2-03 9-2-03 12-9-03 1-7-04 2-10-04 3-15-04 3-10-04 4-6-04 Exhibit CC- 1 Exhibit CC-2 Exhibit CC-3 Exhibit CC-4 Corrected Notice of Public Hearing and Applicable Criteria (mailed to neighboring property owners within 200 feet and published in Daily Tidings) Notice of Public Hearing and Applicable Criteria (mailed to neighboring property owners within 200 feet and published in Daily Tidings) Request for Public Hearing (B.G. Hicks & Paula Daystor) Request for Public Hearing (Gayle Titus) dated October 18, 2003 Request for Public Hearing (Joyce Cowan) dated October 18, 2003 Letter from Ken Ogden Authorizing Plans to be Copied Fax from Ken Ogden regarding Copyright Email Correspondence from Colin Swales dated October 28, 2003, October 27, 2003 and October 15, 2003 Planning Staff Approval Public Notice and Applicable Criteria (mailed to neighboring property owners within 100 feet) Findings & Order (Bill Molnar, Senior Planner) Applicant's Findings of Fact and Conclusions of Law for a Physical and Environmental Constraints Permit prepared by Craig A. Stone & Associates, Ltd. Applicants Application Form Ashland Planning Commission Hearings Board Minutes 30 day Extension granted by the Applicant 30 day Extension granted by the Applicant Notice of Land Use Appeal Planning Commission Findings, Conclusions and Order Council Communication Appeal of Planning Action 2003-118 Communication to City Council Ashland Municipal Code Section 18.108.110 Appeal to Council Letter of Objection by Gary Peterson, Attorney Dated April 6, 2004 Letter to City Attorney Paul Nolte by Gary Peterson, Attorney Dated April 6, 2004 Topographic Map Illustrating Cross Section Slope 109-110 111-112 113 114 115 116 117-120 121-124 125-126 127-129 130-257 258-259 260-261 262 263 264 272-331 332-334 335-336 337 338 339-341 342 Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 3 City of Ashland, Oregon Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit CC-5 Topographic Map Illustrating Building Envelope Slope CC-6 Letter from C.P. dated April 6, 2004 CC-7 Photos of Nearby Existing Development CC-8 Photos of Nearby Existing Development CC-9 Photos of Nearby Existing Development CC-10Topographic Map Illustrating Cross Section Slope CC-11 Topographic Map Illustrating Building Envelope Slope CC- 12 Photos of Nearby Existing Development CC- 13 Photos CC-14Photos CC- 15 Photos CC- 16 Photos CC-17 Photos CC- 18 Photos CC-19Photos of Nearby Existing Development of Nearby Existing Development of Nearby Existing Development of Nearby Existing Development of Nearby Existing Development of Nearby Existing Development of Nearby Existing Development CC-20 Photos from Glenview of Subject Property CC-21 Photo from Vista of Subject Property CC-22 Photo from Glenview of Existing Vegetation CC-23 Photo of Subject Property CC-24 This Exhibit Number was Skipped CC-25 Proposed Structure Body, Roof, and Trim Color CC-26 Supplemental Packet Email Received after 4-6-04 CC-27 AD HOC Committee for Hillside Development Minutes CC-28 Letter in Opposition from Paul Copeland dated April 8, 2004 CC-29 Photo of Glenview CC-30 Land Partition Survey of Subject Property CC-31 Letter in Opposition from Janice B. Robertson CC-32 Neighborhood Flyer CC-33 Letter in Opposition "Reasons to Deny" CC-34 Half Story Definition 343 344-345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364-406 407-580 581 582 583 584-585 586-587 588-590 591-596 Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 4 City of Ashland, Oregon Exhibit CC-35 Letter regarding Wildfire Land, Definition of Dwelling, Front Yard Setback Exhibit CC-36 Letter in Opposition from Larry G. Kellogg Exhibit CC-37 Letter in Opposition from Elizabeth Udall dated April 8, 2004 Exhibit CC-38 Letter in Opposition from Eric Navickas Exhibit CC-39 Letter in Opposition Regarding Trees in Wildfire Lands by Stephen and Carol Jensen dated April 6, 2004 Exhibit CC-40 Letter in Opposition by Regina Ayrs Exhibit CC-41 Power Point Presentation by Colin Swales and Bryan Holley Exhibit CC-42 Emails to the City from Various Opponents Exhibit CC-43 Architects Rendering of Proposed Dwelling Letter in Opposition by Philip C. Lang Additional Information by Opponent Colin Swales City Council Minutes for April 6 and 8, 2004 Letter of Extension of the Statutory Deadlines dated April 9, 2004 11-12-03 Transcript of Hearings Board Public Hearing of November 12, 2003 597-599 600-605 606 607 608 609-610 611-656 657-691 692 693-698 699-710 711-723 724 1-18 11-6-04 Transcript of City Council Public Hearing of April 6 & 8, 2004 1-89 III RELEVANT SUBSTANTIVE APPROVAL CRITERIA The City Council and earlier the Hearings Board determined that the following constitute all of the relevant substantive criteria which are prerequisite to approval of the proposed Physical and Environmental Constraints Review land use application on land designated Hillside Lands and within a Residential Historic district. The following standards and criteria of the City of Ashland Physical and Environmental Constraints Ordinance are cited verbatim below. In Section V, each relevant standard and criterion (or groups of standards and criteria) are followed by the conclusions of law and ultimate conclusions of the City Council. The conclusions of law and ultimate conclusions are based upon the findings of fact in Section IV and the evidence enumerated in Section II. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 5 City of Ashland, Oregon PHYSICAL AND ENVIRONMENTAL CONSTRAINTS REVIEW PERMIT Ashland Land Use Ordinance (Ashland Municipal Code (AMC)) ALUO Chapter 18.62, Physical Constraints Review Permit ALUO 18,62.040(I) Criteria for Approval. A Physical Constrains Review Permit shall be issued by the Staff Advisor when the Applicant demonstrates the followin(j: 1. 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, That the applicant has taken all reasonable steps to reduce the adverse impact on the environment, Irreversible actions shall be considered more seriously than reversible actions. The Staff Advisor or Hearings Board shall consider the existing development of the surrounding area, and the maximum permitted development permitted by the Land Use Ordinance, ALUO 18.62.080 Development Standards for Hillside Lands. A. General Requirements. The following general requirements shall apply in Hillside Lands. All development shall occur on lands defined as having buildable area. Slopes greater than 35% shall be considered unbuildable except as allowed below. Variances may be granted to this requirement only as provided in section 18.62.080.H. a. Existing parcels without adequate buildable area less than or equal to 35% shall be considered buildable for one unit. b. Existing parcels without adequate buildable area less than or equal to 35% cannot be subdivided or partitioned. 2. All newly created lots either by subdivision or partition shall contain a building envelope with a slope of 35% or less. 3. New streets, flag ddves, and driveways shall be constructed on lands of less than or equal to 35% slope with the following exceptions: a. The street is indicated on the City's Transportation Plan Map - Street Dedications. b. The portion of the street, flag drive, or driveway on land greater than 35% slope does not exceed a length of 100 feet. 4. Geotechnical Studies. For all applications on Hillside Lands involving subdivisions or partitions, * * B. Hillside Grading and Erosion Control. All development on lands classified as hillside shall provide plans conforming with the following items: . All grading, retaining wall design, drainage, and erosion control plans for development on Hillside Lands shall be designed by a geotechnical expert. All cuts, grading or fills shall conform to Chapter 70 of the Uniform Building Code. Erosion control measures on the development site shall be required to minimize the solids in runoff from disturbed areas. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 6 City of Ashland, Oregon , o . For development other than single family homes on individual lots, all grading, drainage improvements, or other land disturbances shall only occur from May 1 to October 3'1. Excavation shall not occur during the remaining wet months of the year. Erosion control meas~Jres shall be installed and functional by October 31. Up to 30 day modifications to the October 31 date, and 45 day modification to the May 1 date may be made by the Planning Director, based upon weather conditions and in consultation with the project geotechnical expert. The modification of dates shall be the minimum necessary, based upon evidence provided by the applicant, to accomplish the necessary project goals. Retention in natural state. On all projects on Hillside Lands involving partitions and subdivisions, and existing lots with an area greater than one-half acre, an area equal to 25% of the total project area, plus the percentage figure of the average slope of the total project area, shall be retained in a natural state. Lands to be retained in a natural state shall be protected from damage through the use of temporary construction fencing or the functional equivalent. For example, on a 25,000 sq. fl. lot with an average slope of 29%, 25%+29%=54% of the total lot area shall be retained in a natural state. The retention in a natural state of areas greater than the minimum percentage required here is encouraged. Grading - cuts. On all cut slopes on areas classified as Hillside lands, the following standards shall apply: Cut slope angles shall be determined in relationship to the type of materials of which they are composed. Where the soil permits, limit the total area exposed to precipitation and erosion. Steep cut slopes shall be retained with stacked rock, retaining walls, or functional equivalent to control erosion and provide slope stability when necessary. Where cut slopes are required to be laid back (1:1 or less steep), the slope shall be protected with erosion control getting or structural equivalent installed per manufacturers specifications, and revegetated. b, Exposed cut slopes, such as those for streets, driveway accesses, or yard areas, greater than seven feet in height shall be terraced. Cut faces on a terraced section shall not exceed a maximum height of five feet. Terrace widths shall be a minimum of three feet to allow for the introduction of vegetation for erosion control. Total cut slopes shall not exceeCl a maximum vertical height of 15 feet. (See Graphic) C. Revegetation of cut slope terraces shall include the provision of a planting plan, introduction to topsoil where necessary, and the use of irrigation if necessary. The vegetation used for these areas shall be native or species similar in resource value which will survive, help reduce the visual impact of the cut slope, and assist in providing long term slope stabilization. Trees, bush-type plantings and cascading vine-type plantings may be appropriate. Grading - fills. On all fill slopes on lands classified as Hillside Lands, the following standards shall apply: Fill slopes shall not exceed a total vertical height of 20 feet. The toe of the fill slope area not utilizing structural retaining shall be a minimum of six feet from the nearest property line.(Ord 2834 S6, 1998) b. Fill slopes shall be protected with an erosion control netting, blanket or functional equivalent. Netting or blankets shall only be used in conjunction with an organic mulch such as straw or wood fiber. The blanket must be applied so that it is in complete contact with the soil so that erosion does not occur beneath it. Erosion netting or blankets shall be securely' anchored to the slope in accordance with manufacturer's recommendations. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 7 City of Ashland, Oregon d, Utilities. Whenever possible, utilities shall not be located or installed on or in fill slopes. When determined that it necessary to install utilities on fill slopes, all plans shall be designed by a geotechnical expert. Revegetation of fill slopes shall utilize native vegetation or vegetation similar in resource value and which will survive and stabilize the surface. Irrigation may be provided to ensure growth if necessary. Evidence shall be required indicating long-term viability of the proposed vegetation for the purposes of erosion control on disturbed areas. Revegetation requirements. Where required by this chapter, all required revegetation of cut and fill slopes shall be installed prior to the issuance of a certificate of occupancy, signature of a required survey plat, or other time as determined by the hearing authority. Vegetation shall be installed in such a manner as to be substantially established within one year of installation. 7. Maintenance, Security, and Penalties for Erosion Control Measures. , Maintenance. All measures installed for the purposes of long-term erosion control, including but not limited to vegetative cover, rock walls, and landscaping, shall be maintained in perpetuity on all areas which have been disturbed, including public rights--of-way. The applicant shall provide evidence indicating the mechanisms in place to ensure maintenance of measures. b, Security. Except for individual lots existing prior to January 1, 1998, after an Erosion Control Plan is approved by the hearing authority and prior to construction, the applicant shall provide a performance bond or other financial guarantees in the amount of 120% of the, value of the erosion control measures necessary to stabilize the site. Any financial guarantee instrument proposed other than a performance bond shall be approved by the City Attorney. The financial guarantee instrument shall be in effect for a period of at least one year, and shall be released when the Planning Director and Public Works Director determine, jointly, that the site has been stabilized. All or a portion of the security retained by the City may be withheld for a period up to five years beyond the one year maintenance period if it has been determined by the City that the site has not been sufficiently stabilized against erosion. Site Grading. The grading of a site on Hillside Lands shall be reviewed considering the following factors: a. No terracing shall be allowed except for the purposes of developing a level building pad and for providing vehicular access to the pad. b. Avoid hazardous or unstable portions of the site.(Ord 2834,S2 1998) c. Avoid hazardous or unstable portions of the site. Building pads should be of minimum size to accommodate the structure and ;a reasonable amount of yard space. Pads for tennis courts, swimming pools and large lawns are discouraged. As much of the remaining lot area as possible should be kept in the natural state of the original slope. Inspections and Final Report. Prior to the acceptance of a subdivision by the City, signature of the final survey plat on partitions, or issuance of a certificate of occupancy for individual structures, the project geotechnical expert shall provide a final report indicating that the approved grading, drainage, and erosion control measures were installed as per the approved plans, and that all scheduled inspections, as per 18.62.080.A.4.j were conducted by the project geotechnical expert periodically throughout the project. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 8 City of Ashland, Oregon C. D. Surface and Groundwater Drainage. All development on Hillside Lands shall conform to the following standards: 1. All facilities for the collection of stormwater runoff shall be required to be constructed on the site and according to the following requirements: Stormwater facilities shall include storm drain systems associated with street construction, facilities for accommodating drainage from driveways, parking areas and other impervious surfaces, and roof drainage systems. b. Stormwater facilities, when part of the overall site improvements, shall be, to the greatest extent feasible, the first improvements constructed on the development site. c. Stormwater facilities shall be designed to divert surface water away from cut faces or sloping surfaces of a fill. d. Existing natural drainage systems shall be utilized, as much as possible, in their natural state, recognizing the erosion potential from increased storm drainage. e. Flow-retarding devices, such as detention ponds and recharge berms, shall be. used where practical to minimize increases in runoff volume and peak flow rate due to development. Each facility shall consider the needs for an emergency overflow system to safely carry any overflow water to an acceptable disposal point. f. Stormwater facilities shall be designed, constructed and maintained in a manner that will avoid erosion on-site and to adjacent and downstream properties. g. Alternate stormwater systems, such as dry well systems, detention ponds, and leach fields, shall be designed by a registered engineer or geotechnical expert and approved by the City's Public Works Department or City Building Official. Tree Conservation, Protection and Removal. All development on Hillside Lands shall conform to the following requirements: Inventory of Existing Trees. A tree survey at the same scale as the project site plan shall be prepared, which locates all trees greater than six inches d.b.h., identified by d.b.h., species, approximate extent of tree canopy. In addition, for areas proposed to be disturbed, existing tree base elevations shall be provided. Dead or diseased trees shall be identified. Groups of trees in close proximity (i.e. those within five feet of each other) may be designated as a clump of trees, with the predominant species, estimated number and average diameter indicated. All tree 'surveys shall have an accuracy of plus or minus two feet. The name, signature, and address of the site surveyor responsible for the accuracy of the survey shall be provided on the tree survey. Portions of the lot or project area not proposed to be disturbed by development need not be included in the inventory. Evaluation of Suitability for Conservation. All trees indicated on the inventory of existing trees shall also be identified as to their suitability for conservation. When required by the hearing authority, the evaluation shall be conducted by a landscape professional. Factors included in this determination shall include: a. Tree health. Healthy trees can better withstand the rigors of development than non-vigorous trees. b. Tree Structure. Trees with severe decay or substantial defects are more like~ly to result in damage to people and property. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 9 City of Ashland, Oregon , , c. Species. Species vary in their ability to tolerate impacts and damage to their environment. d. Potential longevity. e. Variety. A variety of native tree species and ages f. Size. Large trees provide a greater protection for erosion and shade than smaller trees. Tree Conservation in Project Design. Significant trees (2' d.b.h, or greater conifers and 1' d.b.h, or greater broadleaf) shall be protected and incorporated into the project design whenew.~r possible. Streets, driveways, buildings, utilities, parking areas, and other site disturbances shall be located such that the maximum number of existing trees on the site are preserved, while recognizing and following the standards for fuel reduction if the development is located in Wildfire Lands. Building envelopes shall be located and sized to preserve the maximum number of trees on site while recognizing and following the standards for fuel reduction if the development is located in Wildfire Lands. c. Layout of the project site utility and grading plan shall avoid disturbance of tree protection areas. Tree Protection. On all properties where trees are required to be preserved during the course of development, the developer shall follow the following tree protection standards: ao All trees designated for conservation shall be cleady marked on the project site,. Prior to the start of any clearing, stripping, stockpiling, trenching, grading, compaction, paving or change in ground elevation, the applicant shall install fencing at the drip line of all trees to be preserved adjacent to or in the area to be altered. Temporary fencing shall be established at the perimeter of the dripline. Prior to grading or issuance of any permits, the fences may be inspected and their location approved by the Staff Advisor. (see graphic) Construction site activities, including but not limited to parking, material storage, soil compaction and concrete washout, shall be arranged so as to prevent disturbances within tree protection areas. No grading, stripping, compaction, or significant change in ground elevation shall be permitted within the drip line of trees designated for conservation unless indicated on the glrading plans, as approved by the City, and landscape professional. If grading or construction is approved within the dripline, a landscape professional may be required to be present during grading operations, and shall have authority to require protective measures to protect the roots. d, Changes in soil hydrology and site drainage within tree protection areas shall be minimized. Excessive site run-off shall be directed to appropriate storm drain facilities and away from trees designated for conservation. e. Should encroachment into a tree protection area occur which causes irreparable damage, as determined by a landscape professional, to trees, the project plan shall I:,e revised to compensate for the loss. Under no circumstances shall the developer be relieved of responsibility for compliance with the provisions of this chapter Tree Removal. Development shall be designed to preserve the maximum number of trees on a site. The development shall follow the standards for fuel reduction if the development is located in Wildfire Lands. When justified by findings of fact, the hearing authority may approw~ the removal of trees for one or more of the following conditions: (Ord 2834 S3, 1998) Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 10 City of Ashland, Oregon a. The tree is located within the building envelope. b. The tree is located within a proposed street, driveway, or parking area. c. The tree is located within a water, sewer, or other public utility easement. d. The tree is determined by a landscape professional to be dead or diseased, or it constitutes an unacceptable hazard to life or property when evaluated by the standards in 1~;.62.080.D.2. e. The tree is located within or adjacent to areas of cuts or fills that are deemed threatening to the life of the tree, as determined by a landscape professional. Tree Replacement. Trees approved for removal, with the exception of trees removed because they were determined to be diseased, dead, or a hazard, shall be replaced in compliance with the following standards: a. Replacement trees shall be indicated on a tree replanting plan. The replanting plan shall include all locations for replacement trees, and shall also indicate tree planting details.(Ord 2834 S4, 1998) Replacement trees shall be planted such that the trees will in time result in canopy equal to or greater than the tree canopy present prior to development of the property. The canopy shall be designed to mitigate of the impact of paved and developed areas, reduce surface erosion and increase slope stability.. Replacement tree locations shall consicler impact on the wildfire prevention and control plan. The hearing authority shall have the discretion to adjust the proposed replacement tree canopy based upon site-specific evidence and testimony. Maintenance of replacement trees shall be the responsibility of the property owner. Required replacement trees shall be continuously maintained in a healthy manner. Trees that die within the first five years after initial planting must be replaced in kind, after which a new five year replacement period shall begin. Replanting must occur within 30 days of notification unless otherwise noted. (Ord 2834 S5, 1998) 7. Enforcement All tree removal shall be done in accord with the approved tree removal and replacement plan. No trees designated for conservation shall be removed without pdor approval of the City of Ashland. b, Should the developer or developer's agent remove or destroy any tree that has been designated for conservation, the developer may be fined up to three times the current appraised value of the replacement trees and cost of replacement or up to three times the current market value, as established by a professional arborist, whichever is greater. Should the developer or developer's agent damage any tree that has been designated for protection and conservation, the developer shall be penalized $50.00 per scar. If necessary, a professional arborist's report, prepared at the developer's expense, may b,9 required to determine the extent of the damage. Should the damage result in loss of appraised value greater than determined above, the higher of the two values shall be used. E. Building Location and Design Standards. All buildings and buildable areas proposed for Hillside Lands shall be designed and constructed in compliance with the following standards .... All structures on Hillside Lands shall have foundations which have been designed by an engineer or architect with demonstrable geotechnical design experience. A designer, as defined, shall not complete working drawings without having foundations designed by an engineer. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 11 City of Ashland, Oregon O. All newly created lots or lots modified by a lot line adjustment must include a building enw~lope on all lots that contains a buildable area less than 35% slope of sufficient size to accommodate the uses permitted in the underlying zone, unless the division or lot line adjustment is for open space or conservation purposes. TREE PRESERVATION & PROTECTION ALUO 18.61.200 Tree Protection Tree Protection as required by this section is applicable to any planning action or building permit. A. Tree Protection Plan Required. 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. , 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 10,1an 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 and fill dudng 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. . 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. 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 installatior~. 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. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 12 City of Ashland, Oregon 3. The fencing shall be flush with the initial undisturbed grade. . 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 obtained 'from the Staff Advisor for the project. , 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 parked vehicles. . 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. 7. No excavation, trenching, grading, root pruning or other activity shall occur within the tree protection zone unless approved by the Staff Advisor. C. Inspection. The applicant shall not proceed with any construction activity, except installation of erosion control measures, until the City has inspected and approved the installation of the required tree protection measures and a building and/or grading permit has been issued by the City. IV FINDINGS OF FACT The City Council reaches the following facts and finds them to be true with respect to this matter: A. SUBJECT PROPERTY lo Property Description; Acreage; Ownership: The subject property is described in the records of the Jackson County Assessor as Tax Lots 7200 and 7400 (39~ 1E-09BC). Tax Lot 7200 is 0.09 acres and Tax Lot 7400 is 0.88 acre. Applicant proposes to adjust the boundary common to both parcels. There is a pending application to adjust the parcel boundaries. This project concerns the proposed adjusted Tax Lot 7200. As originally proposed, Tax Lot 7200 (the subject property of this application) would have had 0.52 acres following the boundary line adjustments. However, pursuant to stipulation of Applicants' agent and conditions of approval, the subject property will have less than 0.50 acres following the boundary line adjustments. The property is owned by Sidney B. De Boer, Trustee FBO the Sidney B. DeBoer Trust. 2. Comprehensive Plan Map Designation and Zoning: The subject property is designated Single Family Residential on the comprehensive plan map. The property is zoned R-1- 7.5. 4. Existing Land Use: Tax Lot 7200 is presently developed with a single-family dwelling. A lot line adjustment has been proposed between Tax Lot 7200 and 7400. The lot line Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 13 City of Ashland, Oregon adjustment can be approved because the resulting parcels comply with all relevant substantive provisions of the ALUO. Tax Lot 7400 is currently developed with a single- family residence and two accessory structures (garages). If the lot line adjustment is approved, the property boundary will be relocated so that one single-family residence and the existing 576 square foot garage will be located on Tax Lot 7400 and the existing 3,618 square foot two-story garage and the proposed new single-family dwelling will be located on Tax Lot 7200. Applicants' plans show the property in its adjusted configuration (subject to minor future adjustments to reduce the subject property below 0.50 acres). Nature of the Proposed Use: The proposed development will require the demolition of the existing single-family residence on what is now Tax Lot 7200 to allow for the construction of the proposed single-family residence. The city has approved a Demolition Permit for this single-family residence. Although some plans show the location of a proposed future swimming pool, that amenity is not part of this application. e Special Considerations: The subject property is identified on the Physical Constraints map as Hillside Lands and has areas where the slope exceeds 25 percent. The subject property is within a Residential Historic District. 7. Timeline for Development: See, Record p. 254 go Building Envelope: Various standards in the ALUO require the delineation of a building envelope and the same is shown on the plan at Record p. 169 wherein it is', called the "Setback Line." B. HILLSIDE RESIDENTIAL LANDS The following findings of fact relate to the designation of the property as Hillside Residential Lands pursuant to ALUO 18.62.080: lo Protected Hillside Areas: Pursuant to ALUO 18.62.050(C)(1) the reconfigured subject property is included on the Physical Constraints Overlay Map. As established in Record p. 253 and 255, the subject property has an original average slope of 28 percent. Portions of the reconfigured subject property have slopes which are greater and less than 25 percent. Portions of the property with slopes of 25 percent or greater are shown on Record p. 163 and 253 and these are the areas of the property subject to the special regulations for hillside protection. 2. Slope: The proposed development will occur on portions of the property 'which have between 22 and 35 percent slopes. Based upon Record p. 255, a letter from Applicants' Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 14 City of Ashland, Oregon registered land surveyor, Hoffbuhr & Associates, Inc., the average slope of 'the subject property is 28 percent. The average cross-section slope of the building site is 27 percent (see Record p. 349). The footprint of the building is within slope contours of less than 35 percent (see Record p. 350). 3. Driveway: Based upon Record p. 163, 165, 191, 193, and 253, no portion of the driveway to serve the new dwelling is on land greater than 35 percent slope for a distance of more than 100 feet. e Grading, Fill and Erosion Control: Grading and erosion control has been designed by applicants licensed Geotechnical Engineer in Record p. 223-248 (Site Evaluation and Geotechnical Engineering Report). This geotechnical report (Record p. 223-248) establishes the geotechnical parameters for design with respect to grading, retaining wall design, drainage, and erosion control plans, which was used by Applicants' civil engineers, Hardey & Associates, Inc. to prepare the civil engineering plans for this project. As demonstrated by Applicants' plans (Record p. 163, 164, 164A) the potential for erosion has been mitigated through the planned installation of retaining walls which will minimize the erosion of solid matter in the disturbed areas on the site. Grading cuts have been limited to only the extent needed to accommodate the proposed dwelling and protected to the extent possible to protect the area from erosion. 0 Cuts: The only cuts to be made on the property are those necessary to accommodate the dwelling footprint and driveway. Cuts for the dwelling will be retained by its foundation walls. Cuts for the driveway are proposed to be retained by engineered mas. onry walls. The materials in which the cuts will be made are established in Record p. 223-248. On portions of the property where terracing is proposed, no terraced section exceeds a height of five feet, or is separated by more than three feet. The total maximum vertical height of the cut slopes is not greater than fifteen feet. See, Record p. 163 and 164. All cut slope terraces are intended to be landscaped with plant materials which are suitable and appropriate for the stabilization of cut banks. The planting plan for this property was developed by Kerry KenCaim, applicants Landscape Architect, licensed in Oregon. See, Record p. 195-197. 0 Retention in Natural State: The subject property (reconfigured parcel 72'00 after the proposed lot line will be less than 0.50 acres. Therefore, the requirement set forth in ALUO 18.62.080(B)(3) does not apply. Revegetation: Revegetation of the subject property is proposed pursuant to the Record p. 195-197 Lm~dscape Plans and the same are consistent with the requirements for revegetation as set forth in ALUO 18.62.080(B)(4)(c). Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 15 City of Ashland, Oregon 8. Public Facilities, Services and Utilities: The subject property is served with the following public facilities, services and utilities: a. Water: There is an existing 6-inch water line within the right-of-way ol.-' Glenview Drive and Vista Street along the south and northeast frontages of the subject property. be Sanitary Sewer: There is an existing 6-inch sewer line within the right-of-way of Glenview Drive and Vista Street along the south and northeast frontages of the subject property. c. Transportation/Access: The adjusted subject property fronts upon Vista Street and Glenview Drive. Actual access to the property is from Glenview Drive. d. Electricity; Natural Gas: According to representatives for the City of Ashland Electric Department, the existing residence presently receives electric power and power will be available for the proposed residence. Electric power will be used for cooling and lighting of proposed residence. Heat for the dwelling will be supplied by natural gas. e. Urban Storm Drainage: An 8-inch underground storm drain exiists at the intersection of Vista Street and Glenview Drive. C. SOLAR ACCESS: The proposed dwelling observes the solar access standards of the City of Ashland in ALUO 18.70 and the same is evidenced by Record p. 165. D. TREE PROTECTION; REMOVAL; REPLACEMENT le Tree Removal Permit: Single-family residential zones which are occupied by a single- family detached dwelling and their associated accessory structures, are exempt from the requirement to obtain a tree removal permit. However, lands subject to the Physical and Environmental Constraints ordinance are further regulated by Chapter 18.62 and 18.61.200. 2. Tree Removal: The removal of trees from the reconfigured property falls under four categories as follows: ae Trees Already Removed within Protected Hillside Areas: Based upon mistaken advice given Applicants by the Ashland Planning Department, Applicants removed five trees within the Protected Hillside Area. See, p. 16 Transcript of Board Public Hearing of November 12, 2003, and p. 63 and 64 of the transcript of the City Council Public Hearing of April 8, 2004. Applicants propose to mitigate the removal of these Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 16 City of Ashland, Oregon trees by agreeing to stipulate to planting 10 trees within a public location to be determined by the Ashland Tree Commission. See, Section VI. b. Trees Already Removed which are not Regulated: Applicants removed two trees on that portion of the subject property which is not within the Protected Hillside Area. c. Trees to be Removed within Protected Hillside Areas: As shown on Rec, ord p. 197, two additional trees are proposed to be removed within the protected area. d. Trees to be Removed which are not regulated. As shown on Record p. 197, seven additional trees are proposed to be removed within the non-protected portion of the reconfigured subject property. . Tree Protection: Applicants licensed landscape architect has proposed the xnethods by which existing trees (to be preserved) will be protected and the same is shown, on Record p. 197. The methods of tree protection are consistent with the requirements for protection as set forth in ALUO 18.62.080(D)(4). 4. Tree Replacement: In addition to the ten trees Applicants have agreed to supply for planting on public lands located elsewhere: 1) the 6-inch caliper Incense Cedar (Calocedrus decurrens) will be replaced (on-site) with a 10-foot tall Deodar Cedar (Cedrus de,data), and 2) the 12-inch Ponderosa Pine (Pinus ponderosa) will 'be replaced (on-site) with a 2-inch caliper Japanese Pagoda Tree (Sophora japonica). E. WILDFIRE LANDS Pursuant to ALUO 18.62.090, the Heatings Board found and the City Council affirms that the reconfigured subject property is included on the Physical Constraints Overlay Map as Wildfire Lands. F. SURROUNDING IMPACT AREA The Hearings Board found and the City Council affirms that the surrounding impact area is defined as that area entitled to notice of this application. The notice area is any parcel which' is located within 200 feet from the boundaries of the subject property. V CONCLUSIONS OF LAW Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 17 City of Ashland, Oregon The City Council reaches the following conclusions of law for each of the relevant substantive criteria. These are preceded by the criterion or criteria to which they relate and are supported by findings of fact as set forth in Section IV herein above and by the evidence enumerated in Section II. In setting forth its conclusions of law for this application, the Council observes that there are a great many standards and approval criteria, manly of which are related. The Council has not attempted to identify all of the linkages among the standards and criteria, although in some instances, it has explicitly incorporated by reference and adopted the conclusions of law for one criterion and applied the same to another. The Council's intention, however, and it so hereby declares, is that the conclusions of law for each criterion is incorporated and adopted for all of the other individual criteria. Additionally, while this document refers to each of the standards and criteria as ,Criterion 1 through Criterion 30, in fact, only Criterion 1 through 3 function as actual approval criteria; those labeled as Criterion 4 through 30 are development standards. The approval criteria and standards are recited verbatim below and followed by the conclusions of law of the City Council: PHYSICAL CONSTRAINTS REVIEW PERMIT Ashland Land Use Ordinance (Ashland Municipal Code (AMC) Title ALUO CHAPTER 62 PHYSICAL & ENVIRONMENTAL CONSTRAINTS ALUO 18.62.040(I) Criteria for Approval. A Physical Constrains Review Permit shall be issued by the Staff Advisor when the Applicant demonstrates the following: Criterion 1. 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. Conclusions of Law: The Hearings Board concluded and the Council affimls that the, "development standards of this chapter," are the standards in ALUO 18.62.80. These standards address the preservation of natural areas (portions of the property wh!ich are in a "natural state"), erosion control and tree protection. Potential impacts to the property and nearby areas are addressed in detail below. The Council rejects opponents' argument that Applicants have improperly limited the scope of the impact analysis by limiting it to the notice area. They argue that the prominent location of the subject property requires the Council to consider the impacts to the entire city. They support their argument by citing the definition of "impact area" found in ALUO 18.104.020. which, for purposes of conditional use permits, requires the city to consider impacts 'to the area immediately surrounding a use, including land within the applicable notice area and "...any Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 18 City of Ashland, Oregon lot beyond the notice area, if the hearing authority finds that it may be materially affected by the proposed use..." The Council finds the definition of "impact area" in ALUO 18.104.020, while it should be considered, is not necessarily determinative. Since the phrase "impact area" is defined, it would have been easy for the City Council, in adopting ALUO 18.62, to use that phrase and "import" its defined meaning into the Physical and Environmental Constrair.~ts Review process. That the city did not do so is evidence that the expanded definition of"irnpact area" for conditionally permitted uses was not necessarily intended to apply to cases such as this. Applicants' proposed use is one permitted outright in the zone, subject only to P~wsical and Environmental Constraints Review. This distinguishes the application from those ALUO 18.104 uses which may only be conditionally permitted in city zoning districts and which may require an expanded impact area analysis. While the Board found and concluded and the Council affirms the phrase "impact area" as defined in ALUO 18.104 is not necessarily determinative of ALUO 18.62 applications, ALUO 18.62.050(I) does require consideration of impacts to "...the property and nearby areas..." In this instance, the evidence shows that all physical and environmental impacts governed by ALUO 18.62.080 or 18.62.090 will most likely be limited to the boundaries of the subject property and probably will not reach other nearby lands which could be entitled to public notice of this proceeding. The evidence further shows that according to the applicant's geotechnical engineer's opinion the site should be completely stabilized following construction. See, Record p. 86A. Therefore, the Board concluded and the Council affirms that the potential impact area does not need to be expanded beyond the m:ea entitled to notice of this proceeding; that "nearby areas" includes and is limited to property lying within the prescribed notice area as required by ALUO 18.108.080. Some opponents argued that the impacts of this project include those related to elements of "identity, aesthetic quality and visual character," all elements recited in the purpose, statement for ALUO 18.62.080 which are therein set forth as follows: It is the purpose of the Development Standards for Hillside Lands to provide supplementary development regulations to underlying zones to ensure that development occurs in such a manner as to prote, ct the natural and topographic character and identity of these areas, environmental resources, the aesthetic qualities and restorative value of lands, and the public health, safety, and general welfare by insuring that development does not create soil erosion, sedimentation of lower slopes, slide damage, flooding problems, and severe cutting or scarring. It is the intent of these development standards to encourage a sensitive form of development and to allow for a reasonable use that complements the natural and visual character of the city. The Board concluded and the Council affirms the purpose statement of ALUO Chapter 18.62.080 does not contain independent approval criteria and even if it did, the language in the purpose statement does not permit the Council to decide this application based upon Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 19 City of Ashland, Oregon elements of historic and visual compatibility as urged by these opponents. The purpose statement in ALUO 18.62.080 deals with matters related to identity, character and the aesthetic value of lands, but these are in the context of protecting Ashland hillsides, not its historic elements. Moreover, the Council believes it is only entitled to apply the purpose statement of an ordinance to resolve ambiguities in the identified approval criteria. The Council concludes that the language of Criterion 1 is clear and unambiguous. Therefore there is no need for the Council to refer to elements of the purpose statement iin order to resolve ambiguities in the ordinance. The Council finds that the subject property has already been developed with a dwelling, garage, driveway, swimming pool, pedestrian walkways, ornamental landscaping,, and other site improvements. As such, this application involves the redevelopment of a previously developed property. From the evidence the Board concluded and the Council affinms, that no significant portions of this property can fairly be characterized as in the natural state of the original slope. Regarding the control of erosion, Applicants have engaged qualified experts in geotechnical and civil engineering, architecture, and landscape architecture in the design of this project. From the evidence, the Hearings Board concluded and the Council affirms that reasonable and appropriate measures have been employed and standards and requirements of the City of Ashland have been incorporated into Applicants' design/development plans. Based upon the submittals by applicant's experts, the evidence also shows that, following the redevelopment of the property, all areas potentially subject to erosion should be stabilized with retaining walls and plantings such that potential impacts have been addressed and carefully minimized and mitigated. See, Record p. 86A and 223-248. The Hearings Board considered the potential impacts to nearby areas, and concluded that this project should not produce any erosion impacts beyond the boundaries of the subject property and the Council affirms. With respect to tree protection, the Hearings Board concluded and the Council affirms: . While some trees on the property were removed without benefit of public review, applicants have proposed to replace these at a rate that is consistent with and exceeds the requirements of the ALUO -- a ratio of two replacement trees for each removed tree. 2. Although some additional trees (within the regulated hillside area) are proposed to be removed, they will be replaced at a ratio of one replacement tree for each removed tree. 3. All trees outside the construction/development area are protected with measures required by the ALUO and which have been dealt with by Applicants' expert landscape architect. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 20 City of Ashland, Oregon Opponents argued the criteria in ALUO 18.62.040(I) are ambiguous and should be resolved pursuant to the provisions of ALUO 18.108.160. The Hearings Board concluded and the Council affirms that Criterion 1 is neither unclear nor ambiguous in ways that require the Board to interpret its provisions by relying on the comprehensive plan or purpose statements in ALUO 18.62. The examples G,f potential ambiguity that this opponent cites are, "potential impacts," "nearby areas," "rninimized," "mitigate," "reasonable steps," "shall be considered more seriously," and "shall consider ... surrounding area." While some words and phrases (from Criterion 1-3) may not have a precise meaning when used generally, they are clear and unambiguous when used in the context of this criteria. These phrases do not require "interpretation," they only require that the Council apply the facts of this application to them. Opponents urged the Council to apply the historic preservation standards and provisions to the application. The Council finds that the historic preservation standards are made applicable when a project is subject to site design review under ALUO 18.72. Pursuant to ALUO § 18.72.040 A. 3., the site design review criteria are not applicable to construction of a new single family residence. Opponents expressed concern that any added fill to the property could negatively impact other properties, citing failures in roadside fill during the 1997 flood. The expert testimony of Applicants' geotechnical engineer establishes that the subject property should be completely stabilized after the dwelling is completed. Opponents argued removal of some of the large trees could affect the slope stability. Applicants' expert geotechnical engineer, Mark Amrhein (Record p. 223-248 and 86A) shows that following construction, the subject property will be completely stabilized and the Council concludes this will be the case. Based upon the findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application has considered the variety of potential impacts to the property and nearby areas, and that the adverse impacts should be minimized. Criterion 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, Conclusions of Law: The Hearings Board concluded and the Council affirms that applicants have evidenced their consideration of the potential hazards (that this develop~nent might create) in the conduct of detailed geotechnical investigations. The Hearings Board also concluded and the Council affirms that Applicants have properly evidenced the Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 21 City of Ashland, Oregon implementation of mitigation measures by incorporating the geotechnical investigations into the architectural, engineering and landscape plans of record, and in the stipulations Applicants agreed to in tendering this application. At Record p. 21, opponents contended that the application did not show volumes of cut and fill, whether any material will be imported to or exported from the site or the nature/type of material to be used. Opponents further argued that the fill to be used for lawn will be retained only with a rubble wall, putting owners below the wall in danger of liquefaction of the fill material during flood conditions. As to these objections, the Hearings Board concluded and the Council affirms: 1. There is no requirement under the ALUO to show volumes of cut and fill or whether material will be imported or exported from the site. , Applicants agent testified there that in the geotechnical report by applicants expert geotechnical engineer, some of the retaining walls are recommended to be "rockeries" (stacked rock walls with drainage provisions) and these are to face stable slopes and protect them from erosion or sloughing. Applicant's agent also testified there are other rockeries intended as part of Applicants' ornamental landscaping and these are effective in preventing erosion or sloughing. Other portions of the site are to be retained with engineered structural retaining walls, including the wall used to retain the lawn area. Council finds, based upon testimony of applicant, they do not intend to retain fill with a rubble wall. , As to the potential for liquefaction, there is nothing in Ashland's comprehensive plan nor the ALUO that suggests liquefaction poses any threat in Ashland. The Board[ concluded and the Council affirms that based upon testimony from applicant's expert geotechnical engineer, this property is not subject to flooding as no streams exist in the area. The record shows that Applicants engaged qualified civil, structural and geotechnical engineers, architects and landscape architects to design this project. The Board concluded and the Council affirms from the evidence that Applicants' consultants are all qualified experts and that this project has been designed and engineered in ways which ensure that all applicable requirements of the ALUO's Physical and Environmental Constraints chapter were been appropriately addressed, including the potential effects of drainage, erosion and sloughing. Therefore and based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with Criterion 2. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 22 City of Ashland, Oregon Criterion 3 That the applicant has taken all reasonable steps to reduce the adverse impact on the environment. Irreversible actions shall be considered more seriously than reversible actions, The Staff Advisor or Hearings Board shall consider the existing development of the surrounding area, and tile maximum permitted development permitted by the Land Use Ordinance, Conclusions of Law: The potential for adverse impacts upon the environment include erosion, mass movement, the loss of natural areas including trees and tree canopies, and the loss of wildlife habitat. Based upon the evidence, the Heatings Board concluded and the Council affirms that Applicants have undertaken the following reasonable steps to reduce adverse impacts upon the environment: 1. Applicants have engaged qualified experts who have offered recommendations as to the best methods to accommodate the proposed new dwelling. . Applicants' design professionals have incorporated environmental mitigation recommendations into the design and construction plans for the reconfigured subject property. 3. Applicants have considered existing development of the surrounding area and have taken steps to reduce any adverse impacts on these areas. 4. Applicants have agreed to stipulate to the tree mitigation plan recommended by the Ashland Tree Commission. Opponents argued the Ashland Land Use Ordinance requires replacement of cut trees in the same general vicinity from where they were cut on the property. The Hearings Board concluded and the Council affirms that Applicants have agreed to the tree mitigation plan recommended by Ashland's Tree Commission, which requires replanting both on and off the subject property. There is nothing in the ALUO to suggest that mitigation must occur close to the same area where trees were mistakenly removed.6 Moreover, the evidence shows that following construction, this property should be completely stabilized with vegetation, landscaping, rockeries and engineered retaining walls. See, Record p. 86A. Opponents argue that the application should be denied as inconsistent with the surrounding development pursuant to Criterion 3. The only basis to consider existing development of the surrounding area, is in the context of Criterion 3, and it states only that the Board must 6 The record makes clear that trees which were remOved on the subject property before this application was filed, were removed based upon erroneous advice from the Ashland Planning Department. The Hearings Board and this Council believe that Applicants acted in good faith based upon advice they received from the Planning Department. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-11 $ Page 23 City of Ashland, Oregon consider the same and the maximum permitted development under the ALUO. The Hearings Board concluded and the Council affirms this requires only that, in determining Ire adverse environmental impacts, the Board must consider existing development in the surrounding area and, for vacant or underdeveloped properties, the Board must consider the environmental impacts as if these lands were developed to the maximum levels permitted by the ALUO. This language does not provide a basis for the Board to consider historic or architectural impacts, nor impacts of a nature not covered by the Physical and Environmental Constraints ordinance -- ALUO 18.62. In their consideration of this application, the Hearings Board and this Council haw.~ examined the surrounding area and the development that now exists in that area, and have considered the maximum development in the surrounding area which would be permitted by the ALUO. Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with the requirements of Criterion 3. ALUO 18.62.080 Development Standards for Hillside Lands. Criterion 4 A. General Requirements. The following general requirements shall apply in Hillside Lands. All development shall occur on lands defined as having buildable area. Slopes greater than 35% shall be considered unbuildable except as allowed below. Variances may be granted to this requirement only as provided in section 18.62.080.H. a. Existing parcels without adequate buildable area less than or equal to 35% shall be considered buildable for one unit. b. Existing parcels without adequate buildable area less than or equal to 35% cannot 13e subdivided or partitioned. Conclusions of Law: Based upon Record p. 253, 255, 349, and 350 (topographic maps of the property and a letter from Applicants' surveyor, Hoffbuhr & Associates, Inc.) the Hearings Board concluded and the Council affirms that the original natural slope of this property is 28 percent. No portion of the property, in its original state, exceeded a slope of 35 percent. While this site was altered to accommodate the existing dwelling, landscaping and landscape features (including terracing) the Hearings Board concluded and the Council affirms that the altered grades are not an appropriate consideration in this application. Ninety degree cuts made earlier to accommodate the existing dwelling, retaining walls and other built elements on this site proposed for redevelopment, are not a part of the natural Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 24 City of Ashland, Oregon topography and the Board concluded and the Council affirms that it would be unfair and inappropriate to measure topography by using these features. Instead, the Hearings Board concluded and the Council affirms that the original natural terrain is the appropriate measure of slope for the purpose of ascertaining compliance with the development standards for hillside lands pursuant to ALUO 18.62.080. Information supplied by Applicants' surveyor at Record p. 349 and 350 indicate that the average natural slope taken through three cross- sections of the building site is 27 percent and that the entire building site is situated on lands with less than 35 percent natural slope. The Heatings Board concluded and tlhe Council affirms that this application is consistent with the requirements of Criterion 4. Also see the Board's and Council's conclusions of law for Criterion 5. The Hearings Board concluded and the Council affirms that the term "slope" is defined in ALUO 18.62.030(R) which provision references a graphic that illustrates how topographic mapping is to be done for the purpose of submitting a complete application. A topographic map consistent with this standard is required in ALUO 18.62.040(H)(1)(k) and the mapping supplied by Applicants (at Record p. 253 and 350) was done in conformance with this topographic mapping standard. The Council notes that in order to comply with these mapping standards, Applicants are required to calculate natural slope between contour lines, and to place their building site within an area where the slope between contour lines does not exceed thirty-five percent. Therefore the Council concludes that all slope calculations required by the ordinance are, realistically, calculations of natural slope between two designated points. At Record p. 22 opponents argued that the submittals entered into the record before the Hearings Board (Record p. 79-83) include city survey data which indicates the proposed site has slopes of greater than 35 percent and is unbuildable and that other portions of the site are available. During the Council proceeding, opponents further argued that ordinance doesn't use the term original, future or existing slope, it just says slope. He stated that the surveyor was manipulating the slope calculation by averaging to lower the slope percentage. The Heatings Board concluded and the Council affirms that the submittals in Record p. 79-83 include only aerial topographic maps and cross-sections superimposed upon them. The submittals do not include actual survey data. As to opponent's evidence in Record p. 79-83 and 611-655, the Council concludes: 1. There is no dispute that this property is subject to the Hillside ordinance (ALUO 18.62.080). , In determining the slope of property for purposes of developing land under lhe Hillside Ordinance, the natural grade of the property (i.e., the grade before manmade disturbance) must be used. This is because hillside lands which have already been disturbed by manmade activities often contain terraces, retaining walls, and other built site features Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 25 City of Ashland, Oregon which, if measured in their existing state, would produce grades that differ significantly from the original natural grades which the Hillside Ordinance was designed to protect. Using existing manmade features to determine slope would make application of and compliance with the Hillside Ordinance infeasible on many properties, inc, luding the subject property. To the extent that the issue of whether to use the natural grade or existing; manmade grades to determine slope under the Hillside Ordinance could be considered ambiguous, that issue would require interpretation. The purpose of the Hillside Ordinance (expressed in ALUO 18.62.080) is useful in determining whether an existing built grade: or natural grade should be used. The purpose of the Hillside Ordinance expressed in that section provides in pertinent part: "It is the purpose of the Development Standards for Hillside Lands to * * * protect the natural and topographic character and identity of these areas * * *" If the purpose of the Hillside Ordinance is to protect the natural and topographic character of hillside lands, it makes no sense to construe the ordinance in such a way as to require the protection of slopes which were artificially created by previous development. Therefore, the Council interprets the term natural grade to mean the topography and terrain in its natural state, before it was altered by human activity. . Record p. 253, 255, 349 and 350 from Applicants' land surveyor, establish the original natural grades based upon a 1978 aerial topographic map and on-site survey' work, and are evidence of what the actual historical ground elevations and natural topographic character are or once were. The Board found and Council affirms that Applicants' surveyor is a qualified expert registered in Oregon. From the evidence, the Board believed and concluded and the Council affirms, that Mr. Huck undertook the survey on this property using sound and standard surveying practices, and his work is appropriate in form and content to enable our evaluation of this application under thee approval standards and criteria. 4. The architects' cross-section drawing (Record p. 649) was not submitted by Applicants to establish the slope of the building site. Those calculations were made by surveyor Darrell Huck and are found at Record p. 253,255,349, and 350. . Based upon the evidence, including topographic surveys by Applicants' registered professional land surveyor, the Hearings Board concluded and the Council affirms Applicants' topographic survey work was undertaken in accordance with Ashland standards. The proposed building site has an average natural slope of approximately 27 Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 26 City of Ashland, Oregon percent and no portion of the proposed building site has slopes which equal or exceed 35 percent. See Record p. 349 and 350. Therefore Council concludes that the proposed building site is buildable and in conformance with the ALUO. During the Council proceedings, Opponents argued that the slope calculation needs to be actual slope of where the building is to go --the building footprint -- and not some larger area on the property. The Council concludes from the evidence that whether topography is measured for the entire builda'ble area or only the building footprint, the topography of this site is less than 35 percent and is buildable. During the Council proceeding opponents argued that excavation for retaining walls and landscaping and paving (of the driveway to connect to Glenview Street) will occur on slopes in excess of 35 percent. ALUO 18.62.080(A)(3)(b) provides: "The portion of the street, flag drive, or driveway on land greater than 35% slope does not exceed a length of 100 feet." The above ALUO 18.62.080(A)(3)(b) permits driveways on lands greater than 35 percent slope if that portion of the driveway does not exceed a length of 100 feet. Based upon the evidence, any portion of the proposed driveway which may be located on lands greater than 35 percent slope (if any) is not longer than 100 feet. Moreover, the evidence also shows that substantial portions of the driveway now exist and the proposed driveway improw,~ments will reduce its slope. Criterion 5 2. All newly created lots either by subdivision or partition shall contain a building envelope with a si.ope of 35% or less. Conclusions of Law: The Hearings Board concluded and the Council affirms that Criterion 5 is inapplicable by reason that this application does not include the creation of any new lot by subdivision or partition. While a lot boundary adjustment has been proposed, the adjustment of property boundaries is neither a subdivision nor partition because it does not result in the creation of a new land parcel. However, pursuant to Criterion 4, development on this land must occur on land having slopes of 35 percent or less. Further, the Council finds that there is a building envelope shown at Record p. 169 (indicated as 'setback line') and that this envelope does not include any lands in excess of 35 percent natural slope. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 27 City of Ashland, Oregon At Record p. 22 Opponents argued that even though not created by subdivision or partition, the reconfiguration of the subject property (by lot boundary adjustment) falls under the meaning of Criterion 5 which requires a building envelope with slopes of 35 percent or less. The Council finds that the Applicants are required under Criterion 4 to observe the 35 percent slope rule, and that there is a building envelope shown at Record p. 169 (indicated as 'setback line') and that this envelope does not include any lands of excess of 35 percent natural slope. The proposed building site does not violate the 35 percent standard and is buildable, whether analyzed under Criterion 4 or 5. Criterion 6 3. New streets, flag drives, and driveways shall be constructed on lands of less than or equal to 35% slope with the following exceptions: a. The street is indicated on the City's Transportation Plan Map - Street Dedications. b. The portion of the street, flag drive, or driveway on land greater than 35% slope does not exceed a length of 100 feet. Conclusions of Law: The Hearings Board concluded and the Council affirms that a driveway to serve the proposed dwelling already exists. The record shows that Applicants intend to re-grade and resurface the driveway, and to slightly alter its configuration, but not to substantially change its present location. At Record p. 23 Opponents argued that the driveway is more than 100 feet long, and is to be moved from its current location and relocated to land which includes slopes of more than 35 percent, and which will produce a resulting loss of more trees. The Council finds that the standards set forth in subsection 3(b) merely regulates the portion of driveways which are on land with slopes more than 35 percent, it does not prevent building driveways on land greater than 35 percent slope so long as that portion of the driveway does not exceed 100 feet in length. From the evidence, the Board concluded and the Council affirms that the proposed driveway now largely exists and in no case will any portion of it exceed a slope of 35 percent for more than 100 feet. See Record p. 163, 165, 191,193, and 253. Criterion 7 4. Geotechnical Studies. For all applications on Hillside Lands involving subdivisions or part:itions, * * * Conclusions of Law: The Hearings Board concluded and the Council affirms that Criterion 7 is inapplicable by reason that this application does not involve either a subdivision or Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 28 City of Ashland, Oregon partition. However, Applicants have undertaken a detailed geotechnical study of the property. See Record p. 225-248. Criterion 8 B. Hillside Grading and Erosion Control. All development on lands classified as hillside shall provide plans conforming with the following items: All grading, retaining wall design, drainage, and erosion control plans for development on Hillside Lands shall be designed by a geotechnical expert. All cuts, grading or fills shall conform to Chapter 70 of the Uniform Building Code. Erosion control measures on the development site shall be required to minimize the solids in runoff from disturbed areas. Conclusions of Law: The Hearings Board concluded and the Council affirms, based upon the findings of fact in Section IV, Applicants engaged a qualified geotechnical engineer who conducted a geotechnical investigation which was used by Applicants' civil engineers in the preparation of the engineering construction plans. See Record p. 225-248. The engineer's report establishes the geotechnical parameters for design with respect to grading, retaining wall design, drainage, and erosion control plans, which was used by Applicants' civil engineers in the preparation of the engineering construction plans. Based upon. Record p. 225-248 and Record p. 191 and 192, the Hearings Board concluded and the Council affirms that the proposed cuts, grading and fills will conform to Chapter 70 of the Uniform Building Code. The Hearings Board also concluded and the Council affirms, based upon the same evidence, that erosion control measures proposed for this development site, will minimize the solids in runoff from disturbed areas. Opponents argued that a rubble wall proposed to retain 5 feet of additional fill will be unsafe during floods. In its consideration of Criterion 2, the Council found that Applicants' agent testified at Record p. 5 that Applicants have not proposed rubble retaining walls. Applicants' agent testified there that in the geotechnical report by Applicants' expert geotechnical engineer, some of the retaining walls are recommended to be "rockeries" (stacked rock walls with drainage provisions) and these are to face stable slopes and protect them from erosion or sloughing. There are other rockeries intended as part of Applicants' ornamental landscaping and these are effective in preventing erosion or sloughing. Other portions of the siite are to be retained with engineered structural retaining walls, including the wall used to retain the lawn area which will be planted on additional fill Additionally, this property is not near any stream and is not subject to flooding, and there is no substantial evidence to the contrary. Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that this application is consistent with the requirements of Criterion 8. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 29 City of Ashland, Oregon Criterion 9 For development other than single family homes on individual lots, all grading, drainage improvements, or other land disturbances shall only occur from May 1 to October 31. Excavation shall not occur during the remaining wet months of the year. Erosion control measures shall be installed and functional by October 31. Up to 30 day modifications to the October 31 date, and 45 day modification to the May 1 date may be made by the Planning Director, based upon weather conditions and in consultation with the project geotechnical expert. The modification of dates shall be the minimum necessary, based upon evidence provided by the applicant, to accomplish the necessary project goals. Conclusions of Law: At Record p. 24 and during the public hearing, Opponents argued that Applicants have stated their intention to use the building as a corporate hospitality center and they have not complied with provisions of the ALUO that govern such use. Additionally, opponents argued that this is not a single-family dwelling but is in fact designed for entertainment with multiple kitchens and banquet halls. Other opponents raised concern with off-street parking associated with entertaining by the applicants. During the hearing, staff indicated that plan review would insure that the house met all applicable requirements to constitute a single family residence. The Hearings Board concluded and the Council affirms that the proposed use is a single family dwelling, permitted in the zone in which this property is located. Opponents argued under Criterion 9, that Applicants' construction time frarrte was not received by the city until after the Board hearing, making the application incomplete, and arguing that it should therefore not have been accepted. The Hearings Board concluded and the Council affirms that Criterion 9 is inapplicable by reason that this application concerns a single family home on an individual lot which is expressly exempt from this standard. Criterion 10 . Retention in natural state. On all projects on Hillside Lands involving partitions and subdivisions, and existing lots with an area greater than one-half acre, an area equal to 25% of the total project area, plus the percentage figure of the average slope of the total project area, shall be retained in a natural state. Lands to be retained in a natural state shall be protected from damage through the use of temporary construction fencing or the functional equivalent. For example, on a 25,000 sq. ft. lot with an average slope of 29%, 25%+29%=54% of the total lot area shall be retained in a natural state. The retention in a natural state of areas greater than the minimum percentage required here is encouraged. Conclusions of Law: This application does not involve a partition or subdivision. A condition of approval is that the reconfigured subject property will have less than 0.50 acre. Therefore, the Council concludes that Criterion 10 does not apply to this application. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 30 City of Ashland, Oregon Criterion 4. Grading - cuts. On all cut slopes on areas classified as Hillside lands, the following standards shall apply: ao Cut slope angles shall be determined in relationship to the type of materials of which they are composed. Where the soil permits, limit the total area exposed to precipitation and erosion. Steep cut slopes shall be retained with stacked rock, retaining walls, or functional equivalent to control erosion and provide slope stability when necessary. Where cut slopes are required to be laid back (1:1 or less steep), the slope shall be protected with erosion control getting or structural equivalent installed per manufacturers specifications, and revegetated. b, Exposed cut slopes, such as those for streets, driveway accesses, or yard areas, greater than seven feet in height shall be terraced. Cut faces on a terraced section shall not exceed a maximum height of five feet. Terrace widths shall be a minimum of three feet to allow for the introduction of vegetation for erosion control. Total cut slopes shall not exceed a maximum vertical height of 15 feet. (See Graphic) Revegetation of cut slope terraces shall include the provision of a planting plan, in~troduction to topsoil where necessary, and the use of irrigation if necessary. The vegetation used for these areas shall be native or species similar in resource value which will survive, help reduce the visual impact of the cut slope, and assist in providing long term slope stabilization. Trees, bush-type plantings and cascading vine-type plantings may be apprOpriate. Conclusions of Law: Based upon the findings of fact in Section IV and Record p. 164, 169, 191, 192 and 196 the Hearings Board concluded and the Council affirms that this application is consistent with the requirements of Criterion 11. At Record p. 25 and under Criterion 11, Opponents argued that removed trees must be replaced in their original locations. As earlier concluded by this Council, there is nothing in the ordinance to require removed trees to be planted in their original locations. The Board concluded and the Council affirms that the methods proposed by Applicants and endorsed by the Ashland Tree Commission to deal with the replanting of removed trees, produces similar resource value to the trees that were removed, is appropriate and is consistent with the ALUO. Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with the requirements of Criterion 11. Criterion 12 Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 31 City of Ashland, Oregon 5. Grading - fills. On all fill slopes on lands classified as Hillside Lands, the following standards shall apply: Fill slopes shall not exceed a total vertical height of 20 feet. The toe of the fill slope area not utilizing structural retaining shall be a minimum of six feet from the nearest property line.(Ord 2834 S6, 1998) Fill slopes shall be protected with an erosion control netting, blanket or functional equivalent. Netting or blankets shall only be used in conjunction with an organic mulch such as straw or wood fiber. The blanket must be applied so that it is in complete contact with the soil so that erosion does not occur beneath it. Erosion netting or blankets shall be securely anchored to the slope in accordance with manufacturer's recommendations. Utilities. Whenever possible, utilities shall not be located or installed on or in fill slopes. When determined that it necessary to install utilities on fill slopes, all plans shall be designed by a geotechnical expert. d. Revegetation of fill slopes shall utilize native vegetation or vegetation similar in resource value and which will survive and stabilize the surface. Irrigation may be provided to ensure growth if necessary. Evidence shall be required indicating long-term viability of the proposed vegetation for the purposes of erosion control on disturbed areas. Conclusions of Law: The Hearings Board concluded and the Council affirms as fbllows: o Regarding Subsection (a) and based upon Record p. 164, no fill slopes exceed a total vertical height of 20 feet and no fill slope toes (not proposed to be retained by structural means) are six or more feet from the nearest property line. . Regarding Subsection (b) and based upon Record p. 190, all fill slopes will be protected with an erosion control netting, blanket or functional equivalent as specified by Applicants' civil engineer in Record p. 190. 3. Regarding Subsection (c) and based upon Record p. 163-222 no planned utilities are to be located or installed on or in fill slopes. , Regarding Subsection (d) and based upon Record p. 195-197, the revegetation of fill slopes has utilized vegetation similar in resource value to that of native vegetation and which, according to Applicants' expert landscape architect, will survive and stabilize the surface. Irrigation has been provided to all fill areas (to be landscaped) which will ensure proper growth. o At Record p. 26, opponents argued that the proposed lawn is not "native vegetation" nor "vegetation similar in resource value" and will not stabilize the surface in tlhe event of flood conditions. The Hearings Board concluded and the Council affirms that Criterion 12 requires "fill slopes" to utilize native vegetation or vegetation of similar resource value. While the proposed lawn is to be placed on fill, it is not a "fill slope" 'because the lawn is to be on level terrain. The proposed lawn will simply replace an existing lawn, so Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 32 City of Ashland, Oregon o it has the same resource value as the lawn it will replace As to flooding, the Council has earlier held that this property is not near any stream or watercourse and there is no substantial evidence that this property is subject to flooding. Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with the requirements of Criterion 12. Criterion 13 Revegetation requirements. Where required by this chapter, all required revegetation of cut and fill slopes shall be installed prior to the issuance of a certificate of occupancy, signature of a required survey plat, or other time as determined by the hearing authority. Vegetation shall be installed in such a manner as to be substantially established within one year of installation. Conclusions of Law: 'Applicants stipulate that they will install all required revegetation of cut and fill slopes in accord with the ALUO, and the same has been made a condition of this approval. During the Board proceeding, Opponents, at Record p. 26, argued that the Board should require revegetation with native species of the tree canopy that was removed. The Board concluded and the Council affirms: 1) There is nothing in the ordinance tlntat requires the use of native species. 2) Applicants' landscaping plans show that all cut and[ fill slopes will be revegetated and that compliance with Criterion 13 has been promised, can be met and will be ensured with the city's required approval of future plans and the carr34ng out of conditions attached to the approval of this application. The Board also concluded and the Council affirms that Applicants' landscaping plans provide suitable and appropriate revegetation with landscaping materials which meet requirements of the ALUO. Therefore, the Board concluded and the Council affirms that this application is consistent with Criterion 13. Criterion 14 7. Maintenance, Security, and Penalties for Erosion Control Measures. a, Maintenance. All measures installed for the purposes of long-term erosion control, including but not limited to vegetative cover, rock walls, and landscaping, shall be maintained in perpetuity on all areas which have been disturbed, including public rights-of-way. The applicant shall provide evidence indicating the mechanisms in place to ensure maintenance of measures. Security. Except for individual lots existing prior to January 1, 1998, after an Erosion Control Plan is approved by the hearing authority and prior to construction, the applicant shall provide a performance bond or other financial guarantees in the amount of 120% of the value of the erosion control measures necessary to stabilize the site. Any financial guarantee instrument proposed Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 33 City of Ashland, Oregon other than a performance bond shall be approved by the City Attorney. The financial guarantee instrument shall be in effect for a period of at least one year, and shall be released when the Planning Director and Public Works Director determine, jointly, that the site has been stabilized. All or a portion of the security retained by the City may be withheld for a period up to five years beyond the one year maintenance period if it has been determined by the City that the site has not been sufficiently stabilized against erosion. Conclusions of Law: The Heatings Board concluded and the Council affirms that Criterion 14 does not operate as an approval standard, but rather establishes methods to ensure that erosion mitigation is guaranteed (in accordance with the ALUO) and faithfully maintained, measures to which Applicants have stipulated, and which have been incorporated as approval conditions. Opponents argued at Record p. 27, that "erosion mitigation" caused by the tree removal should require replacement of trees rather than development activity. Criterion 14 deals with the proper maintenance of long-term erosion control measures and requires Applicants to post appropriate security to ensure the faithful maintenance of erosion control measures, all of which Applicants have agreed to stipulate to (and the same have been adopted as approval conditions). Based upon the foregoing findings of fact and conclusions of law, the Heatings Board concluded and the Council affirms that the application is consistent with the requirements of Criterion 14. Criterion 15 8. Site Grading. The grading of a site on Hillside Lands shall be reviewed considering the following factors: a. No terracing shall be allowed except for the purposes of developing a level building pad and for providing vehicular access to the pad. b. Avoid hazardous or unstable portions of the site.(Ord 2834,S2 1998) c. Avoid hazardous or unstable portions of the site. Building pads should be of minimum size to accommodate the structure and a reasonable amount of yard space. Pads for tennis courts, swimming pools and large lawns are discouraged. As much of the remaining lot area as possible should be kept in the natural state of the original slope. Conclusions of Law: The Hearings Board concluded and the Council affirms as fbllows: 1. Based upon Record p. 163-222, terracing has only been proposed to establish a level building pad and to provide appropriate vehicular access to the pad. 2. Based upon Record p. 225-248, the reconfigured subject property does not include any areas which are hazardous or unstable. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 34 City of Ashland, Oregon o Based upon Record p. 169 the building pad for this dwelling has been minimized in size to be approximately one-quarter of the dwelling's total square footage. As such, the Hearings Board concluded and the Council affirms that the proposed building pad is of a minimum size to accommodate the planned structure, and will produce minimal impacts to the existing site conditions. 4. 4. At Record p. 28 Opponents argued they were unable to find evidence that prior development on this site and at 300 Vista conformed to ALUO 18.62. They further argued under Criterion 15, that the stability of the steep slope has been compromised by tree removal and needs to be replanted and that the proposed building site is or was in a natural state. Applicants argued that the existing home, terracing, pool construction, lawn, and other manmade landscaping were all installed before adoption of Ashland's Hillside Ordinance (a part of the Physical and Environmental Constraints ordinance) -- ALUO 18.62.080.8 As to this opponent's argument that the steep slope should be replaced with planting, the evidence shows that this will occur. See, Exhibit Record p. 195-197. Regarding the proposed building site being in a "natural state," the ordinance requires (in permissive terms) that, "as much of the remaining lot area as possiible should be kept in the natural state of the original slope." As previously discussed, almost the entire lot has been previously disturbed through construction activity. The original slope was the slope of the property before it was originally developed Based. upon the Applicants' plans (Record p. 163-222) and the expert evidence submitted by Applicants with their application, the Hearings Board concluded and the Council affirms that the building pad for the dwelling has been minimized to accommodate the structure proposed and a reasonable amount of yard space. The Board also concluded and the Council affirms that even though there are plans for a future swimming pool, the same: is not part of this application and is not necessarily prohibited by the ALUO. If a pool is proposed in the future it will have to meet all applicable criteria at that time. As to the ordinance discouragement of large lawns, the Board concluded and the Council affirms that the lawn shown in the plans will be placed on previously disturbed area and will replace existing lawn. 5. Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with the requirements of Criterion 15. Criterion '!6 8 The Hillside Ordinance was adopted in 1997 while the dwelling and other improvements were installed in 1988. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 35 City of Ashland, Oregon Inspections and Final Report. Prior to the acceptance of a subdivision by the City, signature of the final survey plat on partitions, or issuance of a certificate of occupancy for individual structures, the project geotechnical expert shall provide a final report indicating that the approved grading, drainage, and erosion control measures were installed as per the approved plans, and that all scheduled inspections, as per 18.62.080.A.4.j were conducted by the project geotechnical expert periodically throughout the project. Conclusions of Law: Criterion 16 does not operate as an approval standard. Instead Criterion 16 serves to put Applicants on notice that a final geotechnical report must be submitted which ensures that all approved grading, drainage and erosion control[ measures were installed as per the approved plans, and that all scheduled inspections required by the ALUO were conducted by Applicants' geotechnical expert -- matters to which Applicants have agreed to stipulate. See, Section VI. Criterion 17 C. Surface and Groundwater Drainage. All development on Hillside Lands shall conform to the following standards: 1. All facilities for the collection of stormwater runoff shall be required to be constructed on the site and according to the following requirements: Stormwater facilities shall include storm drain systems associated with street construction, facilities for accommodating drainage from driveways, parking areas and other impervious surfaces, and roof drainage systems. b. Stormwater facilities, when part of the overall site improvements, shall be, to the greatest extent feasible, the first improvements constructed on the development site. c. Stormwater facilities shall be designed to divert surface water away from cut faces or sloping surfaces of a fill. d. Existing natural drainage systems shall be utilized, as much as possible, in their natural state, recognizing the erosion potential from increased storm drainage. e. Flow-retarding devices, such as detention ponds and recharge berms, shall be used where practical to minimize increases in runoff volume and peak flow rate due to develepment. Each facility shall consider the needs for an emergency overflow system to safely carry any overflow water to an acceptable disposal point. f. Stormwater facilities shall be designed, constructed and maintained in a manner tl~at will avoid erosion on-site and to adjacent and downstream properties. Alternate stormwater systems, such as dry well systems, detention ponds, and leach fields, shall be designed by a registered engineer or geotechnical expert and approved by the City's Public Works Department or City Building Official. Conclusions of Law: During the proceeding, Opponents testified at Record p. 29 that "existing erosion" of Glenview Street makes that street insufficient for Applicants' proposed uses which they allege include valet parking for fund-raising events. Opponents further Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 36 City of Ashland, Oregon argued that the massive cutting and terracing of Glenview will not improve erosion that has caused damage to neighbors on Vista Street. The methods proposed by Applicants to handle storm water is in the engineering plans. See, Record p. 192, designed by Applicants' expert civil engineer. In rebuttal at Record p. 9-10, Applicants' agent argued, as to erosion, that the only evidence of any erosion on Glenview, is a photograph which shows some minor erosion at the intersection of Vista Drive and Glenview Street. They further argued, and the Council agrees, that Glenview (including its intersection with Vista Drive) is at a higher elevation than the subject property and, therefore, Applicants' project cannot produce further adverse affect in this area. The project will not affect, positively or negatively, erosion that may occur on Glenview at its intersection with Vista. Applicants' agents also submitted that the driveway already exists and that any alteration of the driveway will in fact stabilize the site with the installation of engineered retaining walls which have been designed by Applicants' expert structural engineer. The issue of valet parking has nothing to do with surface and groundwater draintage or any other aspect of the project controlled by Criterion 17. Based upon Record p. 192, the Hearings Board concluded and the Council affirms, that storm water and erosion control has been accommodated in Applicants' plan in comp][iance with the requirements of Criterion 17 and the same will be ensured through the required pre- construction meeting, agreed to stipulations of Applicants and other conditions .attached to this approval by the Board. Criterion 18 D. Tree Conservation, Protection and Removal. All development on Hillside Lands shall conform to the following requirements: Inventory of Existing Trees. A tree survey at the same scale as the project site plan shall be prepared, which locates all trees greater than six inches d.b.h., identified by d.b.h., species, approximate extent of tree canopy. In addition, for areas proposed to be disturbed, existing tree base elevallions shall be provided. Dead or diseased trees shall be identified. Groups of trees in close proximity (i.e. those within five feet of each other) may be designated as a clump of trees, with the predominant species, estimated number and average diameter indicated. All tree surveys shall have an accuracy of plus or minus two feet. The name, signature, and address of the site surveyor responsible for the accuracy of the survey shall be provided on the tree survey. Portions of the lot or project area not proposed to be disturbed by development need not be included in the inventory. Conclusions of Law: The inventory of existing trees is in Record p. 197. Criterion 18 is, in fact, not an approval standard, but simply operates as a filing requirement with which Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 37 City of Ashland, Oregon Applicants have complied. Regarding alleged inaccuracies in the tree inventory (with respect to trees in the right-of-way) the inventory was based upon a professional land survey and the Council has no basis for doubting its accuracy. During the Council proceeding, Opponents testified that protected street trees will be removed to accommodate construction of the driveway. On this point, the Council concludes that the trees referred to by this testimony are three trees located within the public fight-of- way of Glenview Street. Trees within the public fight-of-way are regulated by separate ordinance and are not a part of this application. Removal of these trees will be considered at such time that Applicants seek to further improve the existing driveway to Glenview Street. If these trees need to be removed, Applicants will be required to comply with all applicable regulations. Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with the requirements of Criterion 18. Criterion 2. Evaluation of Suitability for Conservation. All trees indicated on the inventory of existing trees shall also be identified as to their suitability for conservation. When required by the hearing ;authority, the evaluation shall be conducted by a landscape professional. Factors included in this determination shall include: a. Tree health. Healthy trees can better withstand the rigors of development than non-vigorous trees. b. Tree Structure. Trees with severe decay or substantial defects are more likely to result in damage to people and property. c. Species. Species vary in their ability to tolerate impacts and damage to their environment. d. Potential longevity. e. Variety. A variety of native tree species and ages f. Size. Large trees provide a greater protection for erosion and shade than smaller trees. Conclusions of Law: During the proceeding, Opponents objected at Record p. 29 that this criterion was not addressed. In rebuttal, Applicants' agent (Record p. 10-11) acknowledged that the submitted application package did not address Criterion 19 with proposed conclusions of law. However, Applicants' agent argued, the record is complete, with facts and evidence sufficient to demonstrate compliance. Applicants' agent further argued that part of Applicants' plans (Record p. 195-197) and the supporting text -- all prepared by Applicants' expert landscape architect (and including the matters required under Criterion Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 38 City of Ashland, Oregon 19) were all addressed. Moreover, the Hearings Board found and the Council affirms that Criterion 19 does not operate as an approval standard, but as a filing requirement and the same was met. Criterion 20 3. Tree Conservation in Project Design. Significant trees (2' d.b.h, or greater conifers and 1' d.b.h, or greater broadleaf) shall be protected and incorporated into the project design whenever possible. a. Streets, driveways, buildings, utilities, parking areas, and other site disturbances shall be located such that the maximum number of existing trees on the site are preserved, while recognizing and folloWing the standards for fuel reduction if the development is located in Wildfire Lands. b, Building envelopes shall be located and sized to preserve the maximum number of trees on site while recognizing and following the standards for fuel reduction if the development is located in Wildfire Lands. c. Layout of the project site utility and grading plan shall avoid disturbance of tree protection areas. Conclusions of Law: During the Board proceeding, Opponent at Record p. 30, argued that there are numerous trees within the "Protected Hillside Area" on this property, that the property is within Ashland's Wildfire Lands area and is a wildfire hazard, and that previous planting on this and adjacent lots is illegal under ALUO 18.68.010. Other opponents have made similar objections. At Record p. 11-12, Applicants' agent argued, based upon the plans at Record p. 197, that there are no significant trees to be removed within the Protected Hillside Area as a part, of this project and that the maximum number of trees on the reconfigured subject property and within the constrains of this project, have been preserved. Based upon Record p. 197, the Council concludes that there are no significant trees within the regulated hillside area to be removed because of this project. Despite that subsection 'a' of Criterion 20 says, "existing trees," this language is subordinate to the prefatory language in Criterion 20, which makes clear that the provisions of Criterion 20 deal only with "significant trees" trees 2 feet or larger d.b.h. (diameter at breast height) or greater conifers and 1 foot d.b.h, or greater broadleaf. As to the property being within Ashland's Wildfire Lands, the Council agrees. However, Opponent's objections under this standard suggest only that previous planting on tlhe property was (or has grown) to be illegal under an unrelated section of the ALUO which deals with fences, walls, hedges and screen planting and are irrelevant to this application. The standards for the development ofwildfire lands is governed by ALUO 18.62.090:9 9 ALUO 18.62.090(A) contains provisions that govern Subdivisions, Performance Standards Developments, or Partitions. This application concerns none of these. ALUO 18.62.090(B) concerns the subject application. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 39 City of Ashland, Oregon ALUO 18.62.090Development Standards for Wildfire Lands. B. Requirements for construction of all structures. 1. All new construction and any construction expanding the size of an existing structure, shall have a "fuel break" as defined below. 2. A "fuel break" is defined as an area which is free of dead or dying vegetation, and has native, fast-burning species sufficiently thinned so that there is no interlocking canopy of this type of vegetation. Where necessary for erosion control or aesthetic purposes, the fuel break may be planted in slow-burning species. Establishment of a fuel break does not involve stripping the ground of all native vegetation. "Fuel Breaks" may include structures, and shall not limit distance between structures and residences beyond that required by other section.,; of this title. 3. Primary Fuel Break - A primary fuel break will be installed, maintained and shall extend a minimum of 30 feet, or to the property line, whichever is less, in all directions around structures, excluding fences, on the property. The goal within this area is to remove ground cover that will produce flame lengths in excess of one foot. Such a fuel break shall be increased by ten feet for each 10% increase in slope over 10%. Adjacent property owners are encouraged to cooperate on the development of primary fuel breaks. 4. Secondary Fuel Break - A secondary fuel break will be installed, maintained and shall extend a minimum of 100 feet beyond the primary fuel break where surrounding landscape is owned and under the control of the property owner during construction. The goal of the secondary fuel break is to reduce fuels so that the overall intensity of any wildfire is reduced through fuels control. 5. All structures shall be constructed or re-roofed with Class B or better non-wood roof coverings, as determined by the Oregon Structural Specialty Code. All re-roofing of existing structures in the Wildfire Lands area for which at least 50% of the roofing area re. quires re- roofing shall be done under approval of a zoning permit. No structure shall be constructed or re-roofed with wooden shingles, shakes, wood-product material or other combustible roofing material, as defined in the City's building code. Fuel breaks in areas which are also Erosive or Slope Failure Lands shall be included in the erosion control measures outlined in section 18.62.080. Implementation. 1. For land which have been subdivided and required to comply with A. (6) above, all requirements of the Plan shall be complied with prior to the commencement of construction with combustible materials. 2. For all other structures, the vegetation control requirements of section (B) above shall be complied with before the commencement of construction with combustible materials on the lot. (Ord. 2657, 1991) 3. As of November 1, 1994, existing residences in subdivisions developed outside of the Wildfire Lands Zone, but later included due to amendments to the zone boundaries shall be exempt from the requirements of this zone, with the exception of section 18.62.090 B.5. above. All new residences shall comply with all standards for new construction in section 18.62.090 B. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 40 City of Ashland, Oregon 4. Subdivisions developed outside of the wildfire lands zone prior to November 1, 1994, but later included as part of the zone boundary amendment, shall not be required to prepare or implement Fire Prevention and Control Plans outlined in section 18.62.090 A. Conclusions of Law (Continued): The Hearings Board concluded and the Council affirms that the property has been and will be developed as an urban homesite with irrigated ornamental landscaping. No dead or dying vegetation exists on the property, nor is any such vegetation/landscaping planned for the property. The Heatings Board concluded and the Council affirms from the evidence that the proposed landscaping for this prope~y will not produce a fire hazard under ALUO 18.62.090. However, there are small groups of trees which technically form an "interlocking canopy." The Board concluded and the Council affirms that these trees can either be removed or can be thinned to comply with ALUO 18.62.090. As shown in the Record p. 179, roofing is to be concrete tile; no wooden roofing is proposed. If some of the vegetation that occurs on this property does not comply with the requirements of ALUO 18.68.010, this is a matter to be considered separately by' the city as an enforcement action. However, the Heatings Board concluded and the Council affirms, that plantings on the property which may not conform to ALUO Chapter 18.62, in all likelihood, were planted before adoption of that ordinance in 1994. While Applicants should examine these plantings to be certain they do not violate the ordinance, the same is not relevant here. As to whether this application is consistent with the wildfire standards in ALUO 18.62.090, the Board concluded and the Council affirms that Applicants can and must comply with these standards; and the pre-construction meeting required by the ALUO, and inspections of the property which occur with the issuance of building permits, 'will ensure that the standards in ALUO 18.62.090 are properly observed. As to Opponent's argument that the driveway and building footprint are located to produce the most damage to tree protection areas, the Heatings Board concluded and the Council affirms that the requirement under Criterion 20 is that a maximum number of existing (significant) trees are preserved. From Applicants' plans and the testimony of their agents, the Heatings Board concluded and the Council affirms that Applicants have sought to design the dwelling to preserve the significant madrone trees located east of the dwelling. Although the driveway may cause the removal of some oak trees, the record shows that these have been historically compromised by improper pruning practices and are located within tire tight-of- way of Glenview Street. The possible removal of some existing oaks was addressed by Ashland's Tree Commission in its decision to permit the removal of these trees (subject to submittal of a tree removal permit) and their replacement as part of the overall mitigation strategy for the property. The replacement plan offered by Applicants has been presented and accepted, although the same leaves open the possibility of further discussions regarding where best to plant the replacement trees. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 41 City of Ashland, Oregon Also during the public hearing and in Record p. 59-63, Opponents argued that Applicants' removal of the "mixed oak and Madrone native forest" had the legal result of removing the legal constraints of the Hillside Ordinance which would have required their home to keep the native, forested hillside intact. The Hearings Board finds that the tree conservation provisions of ALUO 18.62.080 are in Subsection "D" which provide: 1. An inventory of existing trees over six inches d.b.h. (diameter at breast height). 2. An evaluation of the characteristics of inventoried trees. 3. A requirement to conserve significant trees broadleaf trees larger than 1-foot d.b.h. conifers larger than 2 feet d.b.h, and 4. The use of certain methods to protect trees during construction. o A requirement to preserve the maximum number of trees provided that development follow the standards for fuel reduction if the development is located in Wildfire Lands. And when, justified by findings of fact, the Hearings Board can approve the :removal of trees under one or more of five conditions. Among the five conditions are that the trees are within a building envelope, a proposed street, driveway or parking area. 6. Trees to be removed must be replaced based upon a plan. 7. Enforcement provisions. Applicants have undertaken the required inventory and assessment of trees on the property and have proposed to protect significant trees which presently exist. Within the constraints of this property and the size of the dwelling (which the Board has found should not be subject to this ordinance) and based upon Applicants' plans and the expert opinions of their landscape architect and the action of the Ashland Tree Commission, the Hearings Board concluded and the Council affirms, for ALUO 18.62.080(D)(3): As concluded above, all provisions of 18.62.080(D), including its subsections, refer to trees are to "significant trees." Even if Subsections 'a' and 'b' did apply to all trees (which it does not) the Hearings Board concluded and the Council affirms that the trees which now exist on the property have been incorporated into the project desig~a whenever possible. This is evidenced by Record p. 197 which shows the planned improvements in relation to trees already removed by mistake, additional trees proposed for removal (and approved by the Ashland Tree Commission) and other trees Applicants intend to preserve. The Council also takes note that provisions of ALUO 18.62.080(E)(2)(b) Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 42 City of Ashland, Oregon 2, requires (for non-historic district lands) that buildings be cut into hillsides to reduce effective visual bulk. While this property is within a municipal historic district (and therefore exempt from this as a requirement) the Board and Council are sensiitive to this concept as there has been much testimony and evidence which go to the visual size and bulk of this structure. The Board found and the Council affirms that the dwe][ling would appear substantially larger if placed further north on the property where it could not be cut into the hillside. From the evidence, the Board concluded and the Council affirms, that the dwe, lling itself, as designed, will appropriately retain the slopes occurring on the site. Based upon Record p. 197 and 257, the Board concluded and the Council affirms that any trees which may be removed within the right-of-way of Glenview Street to accommodate new portions of the driveway must conform to city ordinances then in effect. A condition has also 'been added than any construction work within the Glenview Drive right-of-way shall be reviewed and approved by the Ashland Engineering Department. With respect to ALUO 18.62.080(D)(3)(a) and (b) the requirement to presel~we trees is subject to the provision: "while recognizing and following the standards for fuel reduction if the development is located in Wildfire Lands." As earlier described, this property is designated as Wildfire Lands on the official maps adopted with ALUO 18.62. As earlier cited, ALUO 18.62.090 requires all new construction to have a "fuel break." As shown in Record p. 197, the trees that were mistakenly removed had an interlocking canopy which may have required thinning or pruning. During the Council proceeding (Record p. 371) Opponent Stephen Jensen testified that he is a member of the Ashland Forest Lands Commission and that the mature Madrone trees (which were removed) should not be characterized as "fast burning trees", that the possibility of a cm~opy fire in this grove of mature Madrone trees is remote and that Madrone trees have a favorable fire performance rating and are recommended for urban/forest interface planting. The Council concludes that this testimony bears on the amount of thinning or pruning which may have been required if the trees that were mistakenly removed were still on the property. As to whether the mistaken removal of trees has a bearing on this application, the Hearings Board concluded and the Council affirms that Applicants removed the trees after consultation with the Planning Department. The Hearings Board concluded and the Council affirms that both the Planning Department and Applicants acted in good faith, albeit in error, in the removal of these trees. Provisions for enforcing violations of ALUO 18.62.080(D) are set forth in ALUO 18.62.080(D)(7). The City of Ashland may later determine what penalties, if any, are appropriate under the ALUO for the trees which were already removed from the property. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 43 City of Ashland, Oregon , As to ALUO 18.62.080(D)(3)(c), the Hearings Board concluded and the Council affirms from Record p. 190-194, that the layout of the project site utility and grading plan have avoided disturbance of areas where trees are proposed to be protected. The Council finds that all the significant trees on the property at the time of the application have been preserved, and the maximum number of all trees on the reconfigured property (and within the constraints of this project and ALUO 18.62.090) have been protected and incorporated into the project design whenever possible. Therefore the Hearings Board concluded and the Council affirms that the application is consistent with Criterion 20. Criterion 21 4. Tree Protection. On all properties where trees are required to be preserved during tlhe course of development, the developer shall follow the following tree protection standards: a. All trees designated for conservation shall be clearly marked on the project site. Prior to the start of any clearing, stripping, stockpiling, trenching, grading, compaction, paving or change in ground elevation, the applicant shall install fencing at the drip line of all trees to be preserved adjacent to or in the area to be altered. Temporary fencing shall be established at the perimeter of the dripline. Prior to grading or issuance of any permits, the fences may be inspected and their location approved by the Staff Advisor. (see graphic) Construction site activities, including but not limited to parking, matedal storage, soil compaction and concrete washout, shall be arranged so as to prevent disturbances within tree protection areas. No grading, stripping, compaction, or significant change in ground elevation shall be permitted within the drip line of trees designated for conservation unless indicated on the grading plans, as approved by the City, and landscape professional. If grading or construction is approved within the dripline, a landscape professional may be required to be present during grading operations, and shall have authority to require protective measures to protect the roots. Changes in soil hydrology and site drainage within tree protection areas shall b.e minimized. Excessive site run-off shall be directed to appropriate storm drain facilities and away from trees designated for conservation. Should encroachment into a tree protection area occur which causes irreparable damage, as determined by a landscape professional, to trees, the project plan shall be revised to compensate for the loss. Under no circumstances shall the developer be relieved of responsibility for compliance with the provisions of this chapter Conclusions of Law: During the proceeding, Opponents at Record p. 31 and under Criterion 21, argued that according to the Tree Commission, the proposal will cause undue stress to the remaining Madrone trees on 300 Vista and result in the removal of other significant trees. In rebuttal, Applicants' agent argued in Record p. 13 that the recommendation of the Tree Commission clearly inferred, by the following language, that the madrone trees will be protected if the plan prepared by Applicants' expert landscape architect is followed: Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 44 City of Ashland, Oregon "It is essential that the remaining madrones be protected. The tree protection plan as presented by the Landscape Architect should be fully implemented to protect these trees. And in addition a structural footing should be designed by the Architect in conjunction with the Landscape Architect that will ensure the utmost protection of the rootzone." The Hearings Board concluded and the Council affirms that Record p. 197 contains a tree protection plan, prepared by Applicants' landscape architect, which incorporates the requirements for tree protection which are established in the above Criterion 21. Therefore, the Hearings Board concluded and the Council affirms that this application is consistent with the requirements of Criterion 21. Criterion 22 Tree Removal. Development shall be designed to preserve the maximum number of trees on a site. The development shall follow the standards for fuel reduction if the development is located in Wildfire Lands. When justified by findings of fact, the hearing authority may approve the removal of trees for one or more of the following conditions: (Ord 2834 S3, 1998) a. The tree is located within the building envelope. b. The tree is located within a proposed street, driveway, or parking area. c. The tree is located within a water, sewer, or other public utility easement. d. The tree is determined by a landscape professional to be dead or diseased, or it constitutes an unacceptable hazard to life or property when evaluated by the standards in 18.62.080.D.2. e. The tree is located within or adjacent to areas of cuts or fills that are deemed threatening to the life of the tree, as determined by a landscape professional. Conclusions of Law: The Hearings Board concluded and the Council affirms that the reconfigured subject property is designated as Wildfire Lands and has several native trees, most of which form a canopy on portions of the property. As earlier found, this project has maximized the conservation/preservation of significant trees (and, if applicable all trees on the property) pursuant to Criterion 20. Trees to be removed are those located within the building envelope and proposed driveway and other site features (as shown on Record p. 169 and 197). The Council also herewith incorporates and adopts its findings of fact and conclusions of law for Criterion 20. In these, the Board described the various components of Ashland's tree protection program as set forth in ALUO 18.62.080(D). The requirements of Criterion 22 -- ALUO 18.62.080(D)(5) are to establish the circumstances under which trees can be removed. Here, the Council will concern itself with existing trees proposed for removal and not trees earlier removed by applicants by mistake. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 45 City of Ashland, Oregon Criterion 22 begins by stating that, "[d]evelopment shall be designed to preserve the maximum number of trees on a site." This requirement is similar to Criterion 20 which states that "significant trees shall be protected and incorporated into the project design whenever possible. Under Criterion 20, the Board concluded that the only protected trees under that subsection are significant trees as defined. However, the Board also set forth its conclusions of law if Criterion 20 applied to all trees on the property and these findings of fact and conclusions of law relate more closely to Criterion 22 which appears to produce something of a "double test" for the removal of trees; the first test is under Criterion 20 and the second under Criterion 22. However, like Criterion 20, Criterion 22 provides 'that, "[t]he development shall follow the standards for fuel reduction if the development is located in Wildfire Lands." Criterion 22 then goes on to list the circumstances under which trees can be approved for removal, when justified by appropriate findings of fact. For the same reasons concluded under Criterion 20 that all existing trees have been protected and incorporated into the project design whenever possible, the Hearings Board concluded and the Council affirms that this development has been designed to preserve the maximum number of trees on the subject property. The conclusions for Criterion 20 and here rely, in part, on the fact that this land is designated as Wildfire Lands and made subject to ALUO 18.62.090, which requires the establishment and maintenance of a fuel break and the same requires tree removal or thinning to prevent an interlocking canopy of native trees. The Hearings Board further concluded and the Council affirms that the findings of fact and conclusions of law for Criterion 20, justify the approval by this Council for the removal of trees (pursuant to Criterion 22 subsections 'a' and 'b') which are located either within the building envelope (shown at Record p. 169 as the "setback line") for the proposed development (including the proposed swimming pool) or within the proposed driveway/parking area shown on applicants plans. See Exhibit Record p. 196. During the proceeding, Opponents at Record p. 31, testified under Criterion 22 that Applicants' landscape architect had indicated that trees were removed in anticipation of the adoption of the tree ordinance and t if the trees had not been erroneously removed, this development would have to be denied. The Board concluded and the Council affi~xns there is nothing in the ALUO that prevents the removal of trees when necessary to accommodate a homesite or driveway or to deal with the fuel break requirements for Wildfire Lands in ALUO 18.62.090, provided sufficient findings and evidence are supplied to justify the tree removals. The Hearings Board concluded and the Council affirms that trees proposed and approved for removal have been appropriately justified here and under Criterion 20 with appropriate facts and evidence. Applicants have observed all requirements for tree preservation and protection; trees that are proposed to be permissibly removed ipursuant to recommendations by the Tree Commission, are being replaced in greater numbers (both on and off site) than is required by the ALUO. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 46 City of Ashland, Oregon Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with the requirements of Criterion 22. Criterion 23 Tree Replacement. Trees approved for removal, with the exception of trees removed because they were determined to be diseased, dead, or a hazard, shall be replaced in compliance with the following standards: a. Replacement trees shall be indicated on a tree replanting plan. The replanting plan shall include all locations for replacement trees, and shall also indicate tree planting details.(Ord 2834 S4, 1998) Replacement trees shall be planted such that the trees will in time result in canopy equal to or greater than the tree canopy present prior to development of the property. The canopy shall be designed to mitigate of the impact of paved and developed areas, reduce surface erosion and increase slope stability. Replacement tree locations shall consider impact on the wildfire prevention and control plan. The headng authority shall have the discretion to adjust 1:he proposed replacement tree canopy based upon site-specific evidence and testimony. Maintenance of replacement trees shall be the responsibility of the property owner. Required replacement trees shall be continuously maintained in a healthy manner. Trees that die within the first five years after initial planting must be replaced in kind, after which a new five year replacement period shall begin. Replanting must occur within 30 days of notification unless otherwise noted. (Ord 2834 S5, 1998) Conclusions of Law: The Hearings Board concluded and the Council affirms as f, Ollows: 1. The proposed replacement trees to be planted on the property are shown on Record p. 196. . As evidenced by Record p. 196, the proposed replacement trees will, in time, result in canopy greater than the tree canopy of the existing trees to be removed. However, the trees to be replanted on the subject property are not the only trees proposed by Applicants to mitigate the removal of trees. Applicants have stipulated, and the Council has required as a condition of approval, that Applicants will provide ten trees having a caliper not less than 2 inches to be planted in a public location to be determined by the Ashland Tree Commission. These mitigation measures ensure that the tree canopy once provided by existing trees on the property, will be replaced. o Applicants have stipulated, and the Council has required as a condition of approval, that all replacement trees will be continuously maintained in a healthy manner as part of the overall landscape. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 47 City of Ashland, Oregon . o During the proceeding, Opponents, at Record p. 32 and under Criterion 23 argued, that Applicants' landscape architect stated that proposed use of the property precludes on-site mitigation and during the public hearing argued that the trees should be replaced from the locations they were removed. Applicants argued in Record p. 13 that the evidence shows that appropriate tree mitigation is being accommodated on-site, additional off-site tree mitigation has been agreed to and Ashland's Tree Commission has accepted the mitigation plan proposed by Applicants. Nothing in the ALUO requires trees to be replaced on the same property from which the original trees were removed or at their original locations. Based upon the foregoing findings of fact and conclusions of law, the Hearings Board concluded and the Council affirms that the application is consistent with the recluirements of Criterion 23. Criterion 24 7. Enforcement a. All tree removal shall be done in accord with the approved tree removal and replacement plan. No trees designated for conservation shall be removed without prior approval of the City of Ashland. Should the developer or developer's agent remove or destroy any tree that has been designated for conservation, the developer may be fined up to three times the current appraised value of the replacement trees and cost of replacement or up to three times the current market value, as established by a professional arborist, whichever is greater. Should the developer or developer's agent damage any tree that has been designated for protection and conservation, the developer shall be penalized $50.00 per scar. If necessary, a professional arborist's report, prepared at the developer's expense, may be required to determine the extent of the damage. Should the damage result in loss of appraised value greater than determined above, the higher of the two values shall be used. Conclusions of Law: The Hearings Board concluded and the Council affirms that Criterion 24 does not operate as an approval standard, but instead functions to put property owners on notice of the city's requirements for the removal of or damage to replacement trees. During the proceeding, there was much testimony and evidence on the matter of trees mistakenly removed earlier by Applicants. Opponents argued at Record p. 32 that Applicants did not appraise the value of the mistakenly removed trees and the city has not ,determined culpability or penalties. Also during the public hearing, opponents argued the project should be denied and Applicants should be required to resubmit a new proposal and this; procedure would allow the city's legal counsel to consider what fines should be imposed for the removal of the trees and what mitigation should be required. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 48 City of Ashland, Oregon The Hearings Board concluded and the Council affirms that Criterion 24 provides that no designated trees can be removed without prior approval of the City of Ashland. Made clear by the testimony of Ashland Planning Department representative, Mark Knox, during the public hearing (and at Record p. 256, a narrative by Applicants' landscape architect) is that he had made an honest mistake in advising Applicants that the trees could be removed. Moreover, Criterion 24 does not require the city to appraise the value of removed trees nor assess fines, it only provides that fines may be levied. To date, the city has not elected to impose fines and appropriate mitigation for the removed trees has been recomtnended by Ashland's Tree Commission and Applicants have agreed to stipulate to these recommendations and the same have been made conditions of this approval. Criterion 25 E. Building Location and Design Standards. All buildings and buildable areas proposed for Hillside Lands shall be designed and constructed in compliance with the following standards * * * Conclusions of Law: The Hearings Board concluded and the Council affirms. ALUO 18.62.080(E) Subsection 1 applies only to "newly created lots, either by subdivision or partition," and, Subsection 2, does not apply to lands within the designated Historic District. Criterion 25 is inapplicable by reason that the subject property is not a new lot created by either subdivision or partition and because the subject property is within a designated Historic District. Criterion 26 F, All structures on Hillside Lands shall have foundations which have been designed by an engineer or architect with demonstrable geotechnical design experience. A designer, as defined, shall not complete working drawings without having foundations designed by an engineer. Conclusions of Law: The Hearings Board concluded and the Council affirras that the foundation for this dwelling was designed by Applicants' expert structural engineer, based upon the recommendations of Applicants' expert geotechnical engineer in compliance with Criterion 26. Criterion 27 Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 49 City of Ashland, Oregon G, All newly created lots or lots modified by a lot line adjustment must include a building envelope on all lots that contains a buildable area less than 35% slope of sufficient size to accommodate the uses permitted in the underlying zone, unless the division or lot line adjustment is for open space or conservation purposes. Conclusions of Law: The Council incorporates and adopts its findings of fact and conclusions of law for Criterion 4. Based upon these, the findings of fact in Section IV and Record p. 253 and 255, no portion of the reconfigured property or land within tlhe building envelope (shown at Record p. 169 as the (setback line") exceeds a slope of 135 percent. Therefore, the Heatings Board concluded and the Council affirms that this application is consistent with the requirements of Criterion 27. Opponents argued at Record p. 33 and during the public hearing, that the submitted topographic map (the Hearings Board believes Mr. Swales is referring to Record p. 253) fails to give a complete survey of the original slope of the southwest comer of the lot. The Hearings Board concluded and the Council affirms that no detailed survey of this portion of the site is necessary, as it includes only land devoted to the existing garage and driveway, both elements that are intended to remain on the property after construction of this project. The evidence of Applicants' surveyor is in the record at pages 52, 55, 349, and. 350. The testimony of Applicants' surveyor is also found at pages 14 and 15 of the Hearings Board Transcript, and pages 74 and 75 of the City Council Hearing Transcript. This evidence and testimony establish that the average natural slope of the ground through the proposed building site is approximately 27-28 percent. Record p. 253, 349, and 350 are survey maps showing the historic natural slopes within the building site area. The building envelope is shown on Record p. 169 and the same is called the "setback line" on that plan. The evidence shows that no part of the building envelope has slopes greater than 35 percent. The Board concluded and the Council affirms that the proposed dwelling can be accommodated within the building envelope in accord with the ALUO. The Hearings Board concluded and the Council affirms that the methods used by Applicants' registered surveyor were done in accordance with the standard practices of professional land surveyors, and the content of the topographic survey work was done in accordance with the ALUO. Based upon the foregoing findings of fact and conclusions of law, the Heatings Board concluded and the Council affirms that the application is consistent in all respects, with the requirements of Criterion 27. TREE PRESERVATION & PROTECTION ALUO 18.61.200 Tree Protection Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 50 City of Ashland, Oregon Tree Protection as required by this section is applicable to any planning action or building permit. Criterion 28 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 and fill 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. Conclusions of Law: Criterion 28 does not function as an approval standard, 'but instead enumerates the requirements for tree inventory and protection plan which have been submitted with this application pursuant to this standard and similar standards in ALUO 18.62.080(D). However, the Council herein incorporates and adopts its findings of fact and conclusions of law for Criterion 4. During the proceeding, Opponents, at Record p. 34 and under Criterion 28, argued that landscape architect's drawings show contour lines at variance with the existing topography as shown on the city's GIS map which opponents submitted during the public heating (Record p. 79). In rebuttal, Applicants' agents explained, and the Board and Council agree, that Applicants' landscape architect used the contour lines which were established by Applicants' land surveyor and which, as earlier described, more accurately depict actual slope on the Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 51 City of Ashland, Oregon property than those shown on Ashland's GIS map which are derived solely by aerial topographic mapping. The Hearings Board concluded and the Council affirms that this application was submitted with information and evidence which satisfies the requirements of Criterion 28. Criterion 29 B. Tree Protection Measures Required. Except as otherwise determined by the Staff Advisor, all required tree I~retection 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. 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. . 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 obtained from 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 parked vehicles. 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. 7. No excavation, trenching, grading, root pruning or other activity shall occur within the tree protection zone unless approved by the Staff Advisor. Conclusions of Law: The Hearings Board concluded and the Council affirms that the various protection measures set forth in Criterion 29 are not approval standards, but standards to be observed during construction to ensure that trees to be preserved are adequately protected. These measures have been incorporated into Applicants' plans and the same are evidenced by Record p. 197. Council herewith incorporates its findings of fact and conclusions of law for Criterion 21, which demonstrates that adequate measures have been employed to protect the significant trees. Moreover, Applicants are required by the ALUO (and herewith adopted approval conditions) to have a pre-construction meeting with city officials to go over the terms of construction. These steps ensure compliance with Criterion 29 and other substantive requirements of the ALUO. The Board concluded and the Council affirms that this application is consistent with the requirements of Criterion 29. Findings of Fact and Conclusions of l_aw Ashland Planning Action 2003-118 Page 52 City of Ashland, Oregon Criterion 30 C. Inspection. The applicant shall not proceed with any construction activity, except installation of erosion control measures, until the City has inspected and approved the installation of the required tree protection measures and a building and/or grading permit has been issued by the City. Conclusions of Law: The Hearings Board concluded and the Council affirms that like Criterion 29, Criterion 30 does not operate as an approval standard, but instead simply states as law, that no applicant may proceed with construction prior to approval of tree: protection measures and issuance of a building and/or grading permit. To this, Applicants stipulate and the Council has imposed the same as a condition of this approval. OBJECTIONS DEEMED TO BE UNRELATED TO THE RELEVANT SUBSTANTIVE APPROVAL CRITERIA Objection: Colin Swales at Record p. 36-40 argued that Applicants did not address the purpose statement in ALUO 18.62.080. Additionally, the last six pages of this opponent's submittal addresses interpretation of the ALUO generally. These appear to be arguments which urge the Council: 1. Pursuant to ALUO 18.108.160, to use the comprehensive plan to interpret ambiguous provisions of the ALUO. . To consider numerous passages, goals and policies of the comprehensi[ve plan to support Opponent's contentions that the Board and Council should consider adverse impacts to Ashland's viewshed, that trees, vegetation and historic resources are important assets, and that the purpose statements for ALUO Chapter 18.62 and 18.62.080 should operate as approval standards. In support of these arguments, Swales submitted excerpts from the city's comprehensive plan, its goals and policies, and various provisions of the ALUO, including the "purpose and intent" provisions of the Physical and Environmental Constraints Chapter (18.6.2.010) and the "purpose" statement from the Development Standards for Hillside Lands (18.62.080). During the Council proceeding Opponent George Kramer testified that the Hearings Board findings, when determining the adverse environmental impacts, must consider existing development in the surrounding area. Opponent Kramer further contends that the goal and intent of the Hillside Ordinance was to protect Ashland's viewshed. As stated in the purpose Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 53 City of Ashland, Oregon statement, "it is the intent of the development standards to encourage a sensitive form of development and to allow for a reasonable use that complements the natural and visual character of the city". According to Mr. Kramer natural and visual are two separate areas of concern anq should be given equal weight. Conclusions of Law: It is well settled Oregon law, that generally worded statements of purpose and intent that express the motivation for adopting a regulation, or the general goals or policies that the local government hopes to achieve by adopting the regulation, do not operate as approval criteria. Bennett v. City of Dallas, 17 Or. LUBA 450, 456, aff'd 96 Or. App. 645 (1989); Stotter v. City of Eugene, 18 Or. LUBA 135, 157 (1989); Becky. City of Tillamook, 20 Or. LUBA 178 (1990), aff'd 105 Or. App. 276 (1991), reversed on other grounds 313 Or. 148 (19!92). While the stated purpose and intent of an ordinance may assist in interpreting ambiguous provisions in the approval criteria, they do not operate as independent approval standards unless their express language indicates they are to be used as independent criteria. None of the policies, goals or purpose and intent statements cited by Opponents purport to apply independent approval standards. They are all generally worded expressions of the City's motivation for adopting the regulations, or of the overall goals which the City hoped to achieve. They do not impose any affirmative obligations, or set forth any identifiable standards that could act as criteria for approval. Freeland v. City of Bend, (LUBA No. 2003- 59, August 5, 2003). When a purpose statement reflects only general policy and does not act as an independent approval standard, the City should ignore evidence that the proposal before it does not comply with that purpose statement. Beck, 20 Or. LUBA 178; Moorefield v. City of Corvallis, 18 Or. LUBA 95, 119 (1989). The only approval criteria relevant to this application are found in ALUO 18.62.040(I) subsections (1), (2) and (3). Applicants contend and the Council agrees, that when the approval criteria for this application are read in context, there is no ambiguity. Applicants' experts have testified that, with application of sound engineering standards and adherence to the conditions e,f approval, potential adverse impacts or hazards on both the subject property and in all nearby areas will be minimized or mitigated. There will be no adverse impacts to the environment either on or off the site. Opponents contends Applicants have failed to address all relevant approval criteria. Specifically, they contend certain words and phrases in ALUO 18.62.040(I) are, or might be, ambiguous. They then argue that, consistent with ALUO 18.108.160, the Council should Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 54 City of Ashland, Oregon resolve such ambiguities by referring to various sections of the Comprehensive P]Lan as well as the Purpose Statement of Chapter 18.62, Physical and Environmental Constraints Review. The Council finds that the phrases "potential impacts," "potential hazards," and "adverse impacts on the environment" as used in ALUO 18.62.040(I) are not ambiguous. ALUO Chapter 18.62 is a comprehensive chapter of the ordinance requiring Applicants, for certain uses, to address specified natural features and conditions occurring upon land and any impacts the development may have on the environment. The requirements of Chapter 18.62 are exacting and exhaustive, and the Council finds no support for the suggestion that the lengthy list of features, conditions and environmental facts is incomplete, ambiguous, or requiring construction in any way. Assuming, without deciding, the words and phrases cited are ambiguous and require construction by resort to the Comprehensive Plan or other ordinance provisions, Opponents have not cited any provision of the Comprehensive Plan with which ALUO 18.62 is in conflict, nor have they directed the Council to any provisions of the Comprehensiive Plan or any purpose statements which, either because of the text or context, indicate they were intended to function as approval criteria for Physical and Environmental Constraints Review. Determining whether particular plan provisions or purpose statements are approval criteria applicable to land use permit decisions depends upon the language and context of the particular plan provisions or purpose statements, and their relationship to particular land use regulations. It is not sufficient for opponents of a land use permit to quote random language from the Comprehensive Plan or purpose statements in the ordinance, and then argue that applicants for a land use permit must construct arguments showing the intent of the language is met by a particular application. Rather, it must appear from relevant plan and ordinance language that the city intended something more in the way of review--in this case, beyond addressing the provisions of Chapter 18.62mis necessary in order to obtain a land 'use permit. Opponents contend Goal 9 of the Comprehensive Plan element entitled Urban Forestry should be considered as an approval criterion. They also rely on Plan language in the element dealing with Historic Sites and Structures. The Council finds the language of Urban Forestry Goal 9 adds nothing to tlhe specific requirements contained in ALUO 18.62. Moreover, rather than explaining any mnbiguity in the Physical and Environmental Constraints Review process, resorting to the Plan language would actually cloud the process. The same is true with respect to Plan language in the Historic Sites and Structures element. The Council finds the provisions cited by opponents do not clarify any ambiguity in ALUO 18.62, but simply reflect the aspirations of the City to identify and protect important historic sites and structures. In this case, the manner in which that protection is afforded is through Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 55 City of Ashland, Oregon application of the specific review requirements of ALUO 18.62 -- not by attempting to transpose general Plan language into approval criteria. Put differently, the Council finds ALUO Chapter 18.62 contains the specific procedures and development standards necessary to assist in the implementation of both the Urban Forestry and Historic Sites and Structures elements of the Comprehensive Plan. No responsive findings are required when plan goals and policies are expressed not as regulatory requirements, but as aspirational objectives. Ellison v. Clackamas County, 28 Or LUBA 521,525 (1995); Wissusik v. Yamhill County, 20 Or LUBA 246, 254-55 (1990); McCoy v. Tillamook County, 14 Or LUBA 108, 118 (1985). The Board concluded and the Council affirms that Applicants, having addressed the specific requirements of ALUO 18.62, have complied with all relevant approval criteria. Objection: During the public hearing, Opponent Colin Swales testified regarding the' removal of trees that are within the public right-of-way, stating: "which is also on hillside constrained lands which seems to me should also be subject to a the hillside constraints permit seeing as 25 feet of this land which is going to be developed actually sits in a public right of way." Conclusions of Law: The Council believes that Mr. Swales is arguing that the removal of trees within the public right-of-way should not be exempt from the standards of ALUO 18.62.080(D) which govern tree conservation and removal. The Board conclucled and the Council affirms that this application seeks approval for the removal of trees, including those within the public right-of-way of Glenview Street, and the same were addressed appropriately above. Objection: During the public heating, Opponents testified that paving surrounding the home which is on the National Registry, will be replaced with non-historic type paving in order to comply with the lot coverage requirements.~ Opponents further argued that the removal of some impermeable paving which surrounds the historic home to make the lc.t coverage requirement, is a major modification to the National Registry Historic property. Conclusions of Law: The Hearings Board concluded and the Council affirms neither objection goes to any of the relevant substantive approval criteria. Objection: During the public hearing and in email correspondence with city officials, Opponents argued that "the application was incomplete due to unfair restrictions made on the public obtaining copies of submittal." Conclusions of Law: Applicants have acknowledged that their architect placed copyright protections on the plans submitted with this application. These plans were detailed working ~ Paving proposed by applicants are paver blocks, the centers of which are hollow to accommodate ground cover and provide permeability for drainage. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 56 City of Ashland, Oregon drawings, not simply design drawings, and Applicants' agent stated it was customary for architects to copyright working drawings. When opponents asked for copies of the plans, the Planning Department was advised by the city attorney that federal copyright law takes precedent over ORS 197.763, and the Planning Department was advised not to make copies for opponents. Upon being notified of this issue, Applicants' attorney took imme, diate steps to have the copyright protection lifted so that all opponents could obtain copies of the plans. Applicants' architect authorized release of the plans on November 3, 2003 (nine days prior to the initial public heating). See, Record p. 116. The delay of a few short days did not prejudice the substantial rights of opponents because: (i) the plans were always available for inspection at city offices, even during the period that no copies were provided; (ii) the Heatings Board afforded opponents an additional seven (7) days after close of public testimony to submit any new evidence and argument into the record; and (iiii) the City Council heating in this matter was held de novo, and opponents were allowed to submit new evidence into the record for the Council to consider. Opponents therefore had a full five months to review copies of the plans in their possession prior to the Council hearing. Objection: During the proceeding George Kramer at Record p. 69 argued that the proposal exploits Ashland's regulations by seeking the maximum levels possible under the various applicable standards. Conclusions of Law: A city's standards cannot be exploited by observing them. Objection: During the proceeding George Kramer at Record p. 70 argued that the application should be denied because it does not provide any community benefit whatsoever and Applicants should not be given beneficial interpretation of the ordinance unless they can prove the same is appropriate. Conclusions of Law: The Hearings Board concluded and the Council affirms that community benefit is not an approval standard for the application and permits being sought. The Board also concluded and the Council affirms that appropriateness, as urged by this opponent, should be given weight only in context of the rules of construction which the Council believes it has observed in its consideration of this application. Objection: During the proceeding Opponents, at Record p. 70, argued that rejecting this application is consistent with the community's best interest and can be accomplished under the Hillside Ordinance as in effect at the time of submittal. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 57 City of Ashland, Oregon Conclusions of Law: The Hearings Board concluded and the Council, affirms that a determination of what is in the community's best interest is a matter of opinion and not a relevant substantive approval criterion. Whether this application "might" be denied under the Ashland's Hillside Ordinance is irrelevant if the application, with the imposition of conditions, "can" be approved. The Council is required by law to approve an appliication if it can, thorough the imposition of conditions, determine that the applicable criteria has been met. The Council has found that if it imposes reasonable conditions, along with the stipulations of the Applicants, this application can and does meet all of Ashland's applicable standards and criteria, and should therefore be approved. Objection: During the proceeding, opponent Swales submitted an informational article (Record p. 57). Conclusions of Law: The article is not an objection per se, but an account of a landslide event called, "The Aberfan Disaster" that occurred in South Wales in 1966. 'This event concerned a landslide of mining waste in South Wales. The Hearings Board concluded and the Council affirms that this piece of evidence has no relevance to this application. Objection: During the proceeding, an opponent submitted a photo (Record p. 56) taken from Ashland downtown towards the subject property. Conclusions of Law: The Hearings Board concluded and the Council affirms that this photograph is also not an objection per se, but simply a photo that allegedly depicts the proposed dwelling. The Board concluded and the Council affirms that this photograph appears as an attempt to document historic/architectural issues and the same are not relevant. Objection: During the proceeding, an opponent placed into evidence, email correspondence from one of the Applicants (Karen DeBoer) to "pearcer~ashland.or.us" and the same is at Record p. 68. Conclusions of Law: The Hearings Board concluded and the Council affirms that this is also not an objection per se, but an email communication from Karen DeBoer that expresses her fondness of trees and affront at being told what she can and cannot do with trees in her own garden. The Council finds and the Council affirms that this email correspondence exists as an honest expression of Applicant Karen DeBoer's opinions at that time and is not relevant to this application. Objection: During the proceeding, an opponent placed into evidence at Record p. 52, a letter dated November 12, 1997 from Robert Taber to then Mayor Golden and City Council. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 58 City of Ashland, Oregon Conclusions of Law: The Council again finds that this is not an objection per se, but a 1997 letter that supported adoption of Ashland's Hillside Ordinance. The Board concluded and the Council affirms that the letter is irrelevant to this application. Objection: During the proceeding, an opponent placed into evidence at Record p. 49 and 50, a timeline containing the various meetings that led to adoption of Ashland's Hillside Ordinance and a Table of Contents which appears to be a list of exhibits for 1997 Hillside Ordinance adoption. During the Council proceeding, Opponent Swales placed into evidence (Record Pages 407 - 580 and 700-723) information concerning the work of the city's Ad Hoc Hillside Ordinance Committee and minutes from City Council of the April 6, 2004 City Council public hearing. While not stated, this evidence is ostensibly to show that the application of the hillside standards urged by Applicants are at odds with the legislative history of the Hillside Ordinance. The Board concluded and the Council affirms that legislative history is only useful in interpreting provisions of the ordinance that are unclear or ambiguous. Nowhere does this opponent explain how the legislative history submitted is useful in interpreting ambiguous passages of the ordinance and the Council concludes that the ordinance is not ambiguous in areas other than those areas where the Council has provided its interpretation in these findings. In those instances, the Council concludes that the legislative history is not useful in clarifying the ambiguous passages. Conclusions of Law: The Council again finds these not to be objection per se, but public information regarding the consideration and ultimate adoption Ashland's Hillside Ordinance -- ALUO 18.62.080. The Board concluded and the Council affirms that these are irrelevant to this application. Objection: At Record p. 365, Opponent Ken Lindsay contends the proposed house should be built on property of at least three or four acres to be landscaped aesthetically in proper proportion to the size of the structures. Conclusions of Law: The Council concludes that this is not an objection per se , but a statement of opinion that does not go to any of the approval criteria. Objection: At Record p. 366, Opponent Mary Rexford contends the size of the home is out of keeping with the neighborhood and hillside development. Conclusions of Law: As to whether this home is "in keeping" with the neighborhood, the Council concludes that the same is not an approval standard. Regarding whether lhe home is "in keeping" with hillside development, the Council concludes that opponents are required to express their objections with sufficient clarity to afford the Council an opportunity to respond; this objection is so general as not to afford the Council an opportunity to properly respond and, as such, it is irrelevant. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 59 City of Ashland, Oregon Objection: At Record p. 367, opponent Lynn Blanche argued that the creation of a compound through the acquisition of adjacent properties goes against the true nature and valuable characteristics of the Historic District. The ordinance limiting the size of buildings in the Historic District supports the true nature of the area and the Council should remember the reason for the building ordinance. Conclusions of Law: As earlier, the Council concludes that provisions of the ALUO which deal with the historic area and historic properties, and the city's ordinance which governs home size do not apply to this application. Objections: During the Council proceeding, several opponents argued that the size and other aspects of the proposed dwelling would produce various impacts of a nature that do not go to the approval criteria for dwellings under Ashland's Hillside Ordinance. These objections include: At Record p. 368, opponent Ann M. Magill argues that a structure of this size violates the housing standards of the neighborhood and establishes a precedent that continues to place the community out of reach to families. At Record p. 381, opponent Susan Shaffer argues that every new structure, especially those built by people with the money to do it right, should conform to the prevailing aesthetics of the town. The proposed villa is not going to be remote; rather it is very near the center of town, and in fact will loom over it and affect everyone. At Record p. 387, opponent Su Rolle opposes the demolition of the existing residence and contends that the 11,000 square foot home seems out of place irt an older neighborhood where the average size is closer to 2,500 square feet. At Record p. 581, opponent Paul Copeland would like the Applicants to accept the will of the community for construction standards in the historic hillside neighborhoocl. It would be a disastrous change in the character of the city if we had many homes on the scale of the planned home in that neighborhood. The Applicants are asking the city to make an exception for him, since no other home of that scale will be allowed in that area in the future. Why should the applicant be the only one allowed to skirt the new rules? ' At Record p. 610, Regina Ayars believes the construction will prevent her and others from enjoying the serenity and pleasure of leisurely walks in the neighborhood. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 60 City of Ashland, Oregon At Record p. 665, Opponent Jay Preskenis wants the application denied because the size negatively impacts the historic district and the spirit and letter of the maximum house size ordinance and the hillside ordinance should be imposed. At Record p. 667, Opponent Stan Druben contends that what the DeBoers desire is bad for the fabric which is the lifeblood of Ashland, or any town. Given the DeBoers' prominence in our community, I very much hope they will see this reality. If not, then it becomes the Council's duty to deny them their desire for an inappropriate structure in a historic district, a project which violates the sense, now law, of the community. · Opponents contend that the size violates every spirit of the size rule the city has; adopted. During the Council proceeding (Record p. 373) opponent Gayle Titus argued that the traffic and dust caused by years of construction and curious people would have an adverse impact to the neighborhood. · At Record p. 685, Opponent Paul Copeland contends that the house is grotesquely out of scale to the downtown hillside location. · Opponent Jane Street argued that inappropriate use of a residential home in a residential neighborhood. · Opponent Jane Street argued that noise due to buses, cars traveling through a residential area and should be downtown where it is more appropriate. · Opponent Jane Street argued that she does not want to give up nighttime quiet. At Record p. 365, opponent Ken Lindsay objects to the odor of toxic substances, like pesticides, which can be smelled overwhelmingly for a great distance demonstrates that the applicant doesn't have much regard for people downstream and downwind who may be sensitive to such substances. · Opponent Malena Marvin argued that the council should (but is not) considering this matter in global terms and this is a misuse of valuable natural resources. Opponent Pam Vavra argued that the comprehensive plan depicts what the .community thinks is important. One of those things is a small town atmosphere. If this project is permitted it goes against that concept. · Opponent Pam Vavra argued that there are laws which prohibit large commercial and large multifamily structures within the historic district in anticipation of their use. The Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 61 City of Ashland, Oregon intended use of the proposed structure goes beyond what we consider traditional single family. It is a convention center or training center. Opponent Pam Vavra argued that when the city takes in an application they Should look at the broader standards rather than the letter of the law and consider what the community vision is. · Various opponents argued that applicants are acting within the letter of the law but not within the spirit of the law regarding maximum lot coverage. Conclusions of Law: The Council concludes that the matters raised above by opponents do not go to any of the approval criteria or standards in the ALUO which govern the development of this dwelling. Therefore, the objections are irrelevant. Objection: At Record p. 597-599 one opponent (no name or address provided) address issues of fuelbreak, number of kitchens, and front and rear yard setback and possibly discrepancies in file PA 2003-118 (at page 10) and Hearings Board Findings (at page 11). Conclusions of Law: As to issues of the number of kitchens, the Council has determined that they are not relevant to the criteria for a Physical and Environmental Constraints Permit, although City staff will review the same at such time that a building permit is sought. As to issues of fuelbreak, the Council has dealt with these above. As to discrepancies in the file cited by this opponent, the Council observes that it is common for proposals to be modified or the basis on which they are approved to change from an applicant's original proposal to the reasoning used by the city after all testimony and evidence is received. Tl~e Council knows of no discrepancy material to its decision or which requires further discussion. As to front and rear yard setbacks, the Council concludes that these are not applicable to Ashland's Hillside. Ordinance, although city staff will review the same at such time that building permits are sought. If the dwelling as proposed (and approved) is later ,determined to violate front or rear setbacks, it must be changed to comply. The Council concludes that reducing setbacks, if required, will not change this application in ways that affect its compliance with the Hillside Ordinance. However, the Council concludes that all setbacks are properly observed. While the architects' drawing at Record p. 169 shows a rear yard setback of only 19 feet, the Council observes that this is measured from the rear property line to the eave line of the proposed dwelling but should, instead, be measured to the building wall. When measured properly from the building wall, the actual rear yard setback exceeds the required 20 feet for the Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 62 City of Ashland, Oregon second story. The rear yard setback for the half-story is required to be 25 feet and the plans show that this setback has also been properly observed.~2 Objection: At Record p. 621, Opponent Swales argued that Applicants did not address the 4th criteria for approval of this application. (see Planning Commission final order October 10, 2003 at record page 128) Conclusions of Law: As was explained by the Planning Director during the Council proceeding (and the Council agrees), the fourth criterion cited by this opponent was removed from the ordinance and does not exist as an approval criterion for this application. Objection: At Record p. 622, Opponent Swales argued that the proposed dwelling exceeds the 30 foot height limit for land within an historic district. Conclusions of Law: The Council concludes that the building height applicable to the proposed dwellings is 35 feet and not 30 feet. The 30-foot standard (which was part of the Large Dwelling Ordinance) was adopted after this application was submitted and does not apply. The Council also concludes that building height is not applicable to Ashland's Hillside Ordinance, although city staff will review the same at such time that building permits are sought. If the dwelling is determined to exceed 35 feet, it must be requced. The Council concludes that reducing the height of the dwelling, if required, will not change this application in ways that affect its compliance with the Hillside Ordinance. Objection: The findings supporting the initial decision were approved by the Hearings Board without discussion and affording opponents an opportunity to comment. Conclusions of Law: The Council concludes that the public hearing before the Hearings Board had been closed, and opponents are not entitled to comment on the adoption of findings. Objection: During the Council proceeding, opponent Jane Street inquired as to how will the city will enforce the constraints proposed by the applicant. ~2 ALUO 18.20.040(D) provides in pertinent part:" * * * rear yard, 10 feet plus 10 feet for each story in excess of one story." Ashland has consistently interpreted this provision to apply to individual stories separately rather than collectively as a stepped setback, such that independent setback measurements are taken for each story (or half-story) individually. In this instance, the first "story" is the second level because the lowest level is a below- grade basement and it requires a setback of 10 feet. The second story (third level) must be setback an additional 10 feet (20 feet total). The upper-most half-story must be setback an additional 5 feet, a total of 25 feet for the half-story. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 63 City of Ashland, Oregon Conclusions of Law: First, the Council concludes that this objection is irrelevant to the criteria for approval. Objection: During the Council proceeding, opponent Jane Street argued that development of the driveway will preclude sidewalks, curb and gutter, and other street improvements on the down slope side which is contrary to city policy. Conclusions of Law: The Council is aware that despite any improvements made by any property owner (which are within the public right-of-way) the same can be removed or altered by the city as necessary to make public improvements to its public infrastructure. Objection: During the Council proceeding, Opponent Swales argued that certain architectural drawings indicate the upper-most level of the home does not meet the: definition of a half-story based upon certain measurements of the height of interior walls. Conclusions of Law: The Council concludes that this objection is not relevant to the criteria for approval of a Physical and Environmental Constraints Review Permit and is a matter to be addressed when plans are reviewed for the purpose of issuing building. Objection: During the Council proceeding, Jane Street argued that the existing fence and illegal cypress and terracing 25 feet into the public fight-of-way are in violation of 18.28.010 (fence ordinance) and in violation of wildfire lands and recommended street tree list. Conclusions of Law: The ALUO citation in this objection is in error and should be ALUO 18.68.010. The Council concludes that the fence, cypress and terracing m:e existing conditions which are not properly considered by the Council in the context of this application. Objection: At Record p. 588 to 590, Opponent Swales argues, in summary, that the application should be denied for the following reasons: 1. The structure is over 35 feet 2. The structure is a 3 stories in height 3. Evidence submitted by the architect is degrees and not slope, therefore the building envelope is on unbuildable land. 4. Surveyor's topo is based on guesswork and cannot be relied upon. No detaile, d evidence of methodology was used. 5. Key required documents, topo map and Gantt chart were not provided before application was deemed complete and staff decision given. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 64 City of Ashland, Oregon 6. Applicants' findings re-interpreted city ordinances regarding Hillside and wildfire to the benefit of the Applicants and contrary to Council interpretation as supported by the Record. 7. Findings and city attorney opinion on "Fair Use" of copyrighted documents is plainly wrong. 8. Rear setback is 19 feet from Glenview is less than the 25 feet required for a 2 1/2 story building. 9. Grading for the driveway is contrary to 18.62.080(B)(8)(b). 10. Does not comply with 18.62.080(D)(3)(a-c) Tree Conservation design. Il. Design does not comply with 18.62.080(A)(3), Development Standards fi)r Hillside Lands (Natural State requirements). 12. Applicants are responsible for illegal tree removal 8.62.080(D)(4)(e). 13. The proposal is not a single family dwelling (drawings clearly show 2 kitchens). 14. Penalties, 18.62.130 in addition to the enforcement actions that may be taken and penalties which may be imposed in Chapter 18.112 for violation of this chapter'. Conclusions of Law: The Council concludes as follows with respect to each of the above 14 points: This objection has been addressed above. The structure does not exceed 35 feet in height, measured in ways required by the ALUO. This objection is not relevant to the criteria for approval of a Physical and Environmental Constraints Review Permit. 2. This objection has been addressed above... This objection is not relevant to the criteria for approval of a Physical and Environmental Constraints Review Permit. . This objection has been addressed above. Topographic information from Applicants' expert surveyor and architect are consistent as to the natural slope of the subject property and it is less than 35 percent and buildable. . This objection has been addressed above. The record shows that the surveyor's work was based upon historic topographic surveys and on-site analysis using the stumps of trees to ascertain the original natural slope before the same was disturbed by earlier construction on the property. The record also shows that Applicants' surveyor undertook work on the property using standard surveyor practices that are accepted within the survey profession. 5. This objection has been addressed above with respect to the Gantt chart (which shows the prospective time flame for constructing the proposed dwelling). Nowhere has this Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 65 City of Ashland, Oregon opponent argued that his substantial rights were diminished as a result of the Gantt chart not being furnished at the time the application was accepted by the city and the Council concludes that his fights were not diminished.~3 Regarding topographic maps, the Council concludes that these were submitted at the time the application was filed with the city. That it was later found missing fi.om city files does not mean that it was not submitted and the missing topographic map was replaced' in advance of the Hearings Board public hearing. This opponent has had ample opportunity to review anti comment on Applicants' topographic information and the record shows that his comments on that topic are extensive during both the Hearings Board and Council proceedings. o Applicants urged interpretation of ambiguous provisions of the ALUO in ways that the Council deems logical and appropriate. Opponent's contention that the same are contrary to Council's interpretations is wrong. The Council has not been asked nor has it interpreted ambiguous ALUO provisions differently than it has in the past and neither this or any other opponent has cited any example to the contrary. . The issue of copyright protection of the architects' plans has been addressed above. As to whether or not the City Attorney's opinion on the dissemination of copyrighted material was correct, that issue is irrelevant. Nowhere does this or any other opponent cite any evidence to support a conclusion that their substantial rights were damaged as a result of not being able to obtain copies of the plans for a few days during November of 2003. Copies of the plans were available to opponents for five months prior to the Ci[ty Council public hearing. o This objection has been addressed above. All building setbacks observe the requirements of the ALUO.. This objection is not relevant to the criteria for approval of a Physical and Environmental Constraints Review Permit. . This objection has been addressed above. ALUO 18.62.080(B)(8)(b) requires (when grading a site on Hillside Lands) to, "avoid hazardous or unstable portions of the site." The evidence shows that major portions of the driveway already exist and grading to accommodate the new driveway configuration can occur without destabilizing the site in ways that violate or threaten to violate substantive provisions of the Hillside Ordinance. 10. This objection has been addressed above and the application has been shown to comply with ALUO 18.62.080(D)(3)(a-c) which governs tree conservation in the design of projects under the Hillside Ordinance. ~3 The Gantt chart was submitted in advance of the public hearing. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 66 City of Ashland, Oregon 11. This objection has been addressed above. The Natural State .requirements in ALUO 18.62.080(A)(3) apply only to parcels in excess of 0.50 acre. Based upon Applicants' stipulation during the Council proceedings and conditions of approval, the adjusted boundaries of the subject property will have less than 0.50 acre. Therefore, ALUO 18.62.080(A)(3) simply does not apply to this application. 12. This objection has been addressed above. Applicants proceeded to remove trees after consultation with city staff. All parties now know that the advice from city staff was in error. Moreover, Applicants have agreed and the Board and Council have required trees to replace those which were mistakenly removed. 13. This objection has been addressed above. This structure is and will operate as a single family dwelling. That there is an additional kitchen which will be used for entertaining is a matter which is irrelevant to the criteria under current consideration and is a matter that will be reviewed when the applicant seeks a building permit. 14. This objection has been addressed above and is similar to #12 above which deals with enforcement (for the mistaken removal of trees). VI CONDITIONS OF APPROVAL 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. 2) That a Geotechnical Expert be retained until the project is completed and a final Certificate of Occupancy is issued. 3) That prior to final Certificate of Occupancy, the applicant shall present to the staff advisor a copy of the Geotechnical Expert's Inspection Schedule. Such inspection schedule shall identify the Geotechnical Expert's final approval for all measurers noted in the Geotechnical Engineering Report. 4) That all recommendations listed in the Amrhein Associates Geologic Evaluation and Geotechnical Engineering Report (July 20th, 2003) be implemented during the construction of the home. Such recommendations will need to be identified in the final Geotechnical Expert's Inspection Schedule. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 67 City of Ashland, Oregon 5) That prior to issuance of a Building Permit, the applicant, Geotechnical Expert, Building Official and Planning Staff Advisor meet on site in order to review the City's Hillside Development requirements. 6) That prior to final Certificate of Occupancy, the mitigation proposal for the replacement trees as noted in the applicants' findings shall be met. 7) That all proposed construction work within the Glenview Drive right-of-way be reviewed and approved by the Ashland Engineering Department. 8) That an encroachment permit be obtained from the Ashland Engineering Department for the existing fence along Glenview Drive. 9) That a separate Physical & Environmental Constraints Permit be approved for the removal of the trees by the future pool house (Trees//9-13). In addition to the nine conditions which the Council incorporates and adopts, the Council also incorporates and adopts as conditions of this approval, the following stipulations agreed to by Applicants: Stipulation 1. Applicants will construct the proposed dwelling and other site improvements in accordance with the approved plans, as amended by reasonable conditions imposed by the Council. Stipulation 2. Where required by this chapter, all required revegetation of cut and fill slopes shall be installed prior to the issuance of a certificate of occupancy, signature of a required survey plat, or other time as determined by the hearing authority. Vegetation shall be installed in such a manner as to be substantially established within one year of installation. Revegetation 18.62.080(B)(6) Stipulation 3. Applicants will continuously maintain all replacement trees in. a healthy manner as part of the overall landscape of the project area. Stipulation 4. Applicants will not proceed with any construction activity, except installation of erosion control measures, until the City has inspected and approved the installation of the required tree protection measures and a building and/or grading permit has been issued by the City. Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 68 City of Ashland, Oregon Stipulation 5. Applicants will perpetually maintain all measures installed for the purposes of long-term erosion control, including vegetative cover, rock walls, landscaping, and all areas which have been disturbed, including public rights-of-way. Stipulation 6. Following approval of the Erosion Control Plan by the city (and prior to construction) Applicants will provide a performance bond or other financial guarantees in the amount of 120% of the value of the erosion control measures necessary to stabilize the .site. Stipulation 7. Before issuance of a certificate of occupancy, Applicants' geotechnical expert will provide a final report which indicates that the approved grading, drainage, and erosion control measures were installed as per the approved plans, and that all scheduled inspections, as per ALUO 18.62.080(A)(4)(j) were conducted by the project geotechnical expert periodically throughout the project. Stipulation 8. Applicants will provide ten (10) trees having a caliper not less than two (2) inches to be planted in a public location to be determined by the Ashland Tree Commission. Stipulation 9. Applicants will install all required revegetation of cut and fill slopes and the same will occur before issuance of a Certificate of Occupancy. Stipulation 10. Applicants' lot line adjustment will result in the subject property ihaving less than 0.50 acre. Stipulation 11. Applicants' final plans and construction will not cover the subject property with impermeable surfaces above the forty-five percent (45%) maximum allowed under ALUO. VII ULTIMATE CONCLUSIONS Based upon the foregoing findings of fact and conclusions of law, the City Council hereby affirms the Hearings Board decision and concludes that the application is consistent with the requirements of ALUO 18.62.080 and 18.62.090 and all related standards wifl~ respect to development on regulated hillside and wildfire lands. Dated: Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 69 City of Ashland, Oregon ASHLAND CITY COUNCIL Council Chairperson Findings of Fact and Conclusions of Law Ashland Planning Action 2003-118 Page 70