HomeMy WebLinkAbout2007-190 Findings - MacDonald
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
AUGUST 7, 2007
In the Matter of an Appeal of Planning Action 2006-01784,
Request for a Physical and Environmental Constraints Permit
for Development in the Wrights Creek Floodplain and Riparian
Preservation Area for the Improvement and Widening of a
Portion of an Existing Driveway, Re-grading of a Portion of
Grandview Drive and Extension of Utilities to Serve a Single
Family Residence for Property Located at 720 Grandview Drive
Located Within the City of Ashland, Jackson County, Oregon.
Applicant: Lynn and Bill MacDonald [PA-#2006-0l784]
)
)
)
) FINDINGS OF FACT
) CONCLUSIONS OF LAW
) AND ORDER
)
)
I. NATURE OF PROCEEDINGS
This matter comes before the City Council of the City of Ashland for a de novo appeal hearing.
The appeal is from a March 13, 2007 decision of the City of Ashland Planning Commission
approving inter alia a request for a Physical and Environmental Constraints Permit for
Development in the Wrights Creek Floodplain. The decision was originally approved
administratively on November 22, 2006, and appealed to the Planning Commission.
The Applicants received a building permit for a single-family home in October 2004 (BD-2004-
00284). In December 2004, Bonnie Broderson, a neighboring property owner, (hereinafter
"Opponent") appealed the building permit to the Oregon Land Use Board of Appeals (LUBA);
the Petition included allegations that certain land use approvals were required. In April 2005, the
Applicants chose a "voluntary remand" and the City agreed to address the Opponent's
assignments of error. The action was therefore not reviewed by LUBA, and no errors were
adjudicated or determined by LUBA. In a normal voluntary remand the City's final decision
maker would provide notice to the participants and remake the final land use decision to correct
any alleged errors. In this case because the original decision was not a land use decision, (a
building permit) the City had not followed land use procedures, so on remand there was no final
land use decision to remake. The Applicants were therefore required to submit a new local land
use application (which may be appealed at the local level to the City Council) for the proposed
development and to address the alleged assignments of error.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -1-
The application for staff permit was filed by the Applicant with the Planning Department on
September 8, 2006. The Applicant made several applications, some of which staff determined to
be unnecessary. A Physical Constraints Review Permit is a Staff Permit procedure in accordance
with 18.1 08.030.A.2. The original application was deemed incomplete. Additional materials
were submitted by the Applicant and the application was deemed completed on November 20,
2006. Staff granted preliminary approval on November 22, 2006. Opponent was provided
notice ofthe preliminary action. A request for a public hearing was timely made by Opponent
on December 4,2006. The relevant criteria are found in City's "Ashland Land Use Ordinance"
("ALUO"), Chapter 18.62 and 18.20.
On December 20,2006, notification of the public hearing before the Planning Commission on
January 9,2007, was mailed, pursuant to Chapter 18, Ashland Land Use Ordinance to area
property owners and affected public agencies. Notice of the January 9,2007, hearing was also
published in the Ashland Daily Tidings on December 28,2006. On January 9, 2007, the
Planning Commission conducted a public hearing and considered the oral and written testimony
presented, the staff report and the record as a whole. On January 9, 2007 the hearing was closed.
Prior to the close of the hearing a request was made by Opponent for a continuance or to leave
the record open. The Planning Commission left the record open until January 17,2007 at 5:00
p.m. Written testimony was submitted. The Applicant submitted final written argument on
January 24,2007. On February 13,2007 the Planning Commission convened and deliberated on
the application; the Commission approved the application and directed findings of fact and
conclusions oflaw be brought back to the March 13,2007 meeting for approval. On March
13,2007, the Findings, Conclusions, and Orders of City's Planning Commission were approved
by the Commission and signed by the Chair.
On March 10 2007 the appellant, Bonnie Broderson filed an appeal of the Planning
Commission's decision. The notice of intent to appeal alleged nine assignments of error. The
nine issues raised by the appellant are: 1) the Planning Commission findings violated 18.62.040
ofthe Ashland Land Use Ordinance (ALUO), 2) the Planning Commission ruled on issues which
had not been noticed, 3) the Planning Commission approved expansion and development of a
private driveway in the Grandview Dr. right-of-way, 4) the approved Physical Constraints
Review Permit violates ALUO 18.62.040(H) and 18.62.070(M), 5) the subject lot is not a legal
lot, 6) the approved Physical Constraints Review Permit violates the City's Comprehensive Plan
and riparian ordinance, 7) the slope is incorrectly designated on the property and the impervious
surface calculations are not provided, 8) a Type I procedure is required by ALUO 18.1 08.040,
and 9) the standards of ALUO 18.76.060 and the Uniform Fire Code for turnarounds and dead
end streets are not met. Six of the nine issues above were previously raised by appellant, and are
addressed in the January 9, 2007 Staff Report (pages 250-263 of the Council record) and in the
Planning Commission Findings of Fact, Conclusions of Law and Order. (pages 12-35 of the
Council record). To address these six issues and three new issues, the City Council adopts and
incorporates as its decision, the Findings of Fact, Conclusions of Law and Order of the Planning
Commission as well as the July 17, 2007 and May 15, 2007 Council Communciations, attached
hereto and made a part hereof by this reference. To the extent of any specific conflict, the
provisions of this document shall control.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -2-
'" ,
On April 25 2007, notification of the public hearing before the City Council on May 15,2007,
was mailed, pursuant to Chapter 18, Ashland Land Use Ordinance to area property owners and
affected public agencies. The Notice included notification that the LUBA assignments of error
would be addressed. Notice ofthe May 15,2007, public hearing was also published in the
Ashland Daily Tidings on May 3, 2007. Subsequent to the notice, the applicant requested
additional time to supplement the application with additional evidence. The appellant
(opponent) had acquired tax lot 412 (in March 2007) and raised issues of the applicant's
driveway crossing tax lot 412 without an easement. The applicant moved the proposed driveway
to address the easement issue, and submitted a revised Topographic Survey with photos and a
revised Preliminary Grading and Drainage Plan. The public hearing was continued to June 19,
2007 and then again to July 17, 2007 at the request for the applicant and the applicant also
extended the 90 day deadline for final action on this remand. On July 17,2007, the City
Council conducted a public hearing and considered the oral and written testimony presented, the
staff report and the record as a whole. On July 17, 2007 the hearing was closed. No request was
made for a continuance or to leave the record open. The City Council closed the record. The
Applicant waived the submission of final written argument. On July 17, 2007 the Council
deliberated on the application and upheld the decision of the Planning Commission, with minor
changes, and approved the application and directed findings of fact and conclusions of law be
brought back for approval. On August 7,2007, the Findings, Conclusions, and Orders of City's
Council were approved by the Council and signed by the Mayor.
Based upon the evidence in the record, the Commission makes the following findings of fact and
conclusions of law:
II. FINDINGS OF FACT
1) The Nature of Proceedings set forth above are true and correct and are incorporated
herein by this reference.
2) The subject of Planning Action [P A-#2006-01784] concerns real property located within
the City of Ashland ("City"), and said property is described on the County Tax Assessor's Maps
as 39-1E-5CD, Tax Lot 500 (the "Property"). The street address of the subject property is 720
Grandview Drive, Ashland, Oregon, 97520.
3) The zoning of the subject property is R-I-I0. (10,000 sq. ft. lots) (Single Family Residential
District). The Comprehensive Plan designation is Single Family Residential.
4) In September 1979, the Planning Commission approved a Land Partition and Variance for
lot depth (P A 79-110). The subject property was one of the three lots created by the land
partition.
5) The Applicants for Planning Action # 2006-001784 are Lynn and Bill McDonald (hereinafter
"Applicants"). Attorney Mark Bartholomew, and Planner Tom Giordano, among others,
represent Applicants.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -3-
6) According to the survey submitted with the application, the northern portion of the property
slopes uphill to the northeast at approximately a 14 percent slope, and the middle portion of the
property slopes uphill to the east at approximately a 12 percent slope. A smaller portion ofthe
site in the southwest comer of the property, south ofthe existing driveway and adjacent to the
creek contain steeper slopes as it is part of the creek banle The application survey identifies
three trees on the site including a cluster of plum trees, and two dead poplar trees that are eight
and ten inches d.b.h. The remainder of the site is covered in native grasses.
7) One of the forks ofWrights Creek runs to the south of the subject property. The creek is
culverted to the south of Grandview Dr. and daylights in the Grandview Dr. right-of-way near
the southwest comer of the parcel. The top of the creek bank is partially located in the southwest
comer of the parcel and is identified on the Topographic Survey included in the application.
8) The subject parcel as well as the surrounding properties to the east, west and south are
located in the R-I-I0 Single-Family Residential district. The Ashland City Limits is located on
the western border of the property. As a result, the properties to the west of the parcel are under
the jurisdiction of Jackson County. There are several parcels to the north and to the east of the
subject parcel that are also vacant.
9) The project site is a vacant lot situated on the north side of Grandview Dr. This portion
of Grandview Dr. is the western terminus of the city street, and is located west of the intersection
with Wrights Creek Dr. Grandview Dr. in this location is a gravel driving surface.
10) There is an existing gravel driveway in place that serves the subject parcel as well as the
parcel to the west located at 507 Grandview Dr. This existing driveway serving the subject
parcel splits from Grandview Dr. approximately 40 feet east of the subject property. The shared
driveway crosses the vacant comer of the property to the east (391E05CD, tax lot 411). The
property owner of tax lot 411 has authorized the Applicants to proceed with the application, and
is working with the Applicants towards an access easement.
11) Shortly after entering the subject property one driveway turns to the north to serve the
subject property, and the other driveway turns to the west to serve the residence located at 507
Grandview Dr. Grandview Dr. continues to the southwest. The driveway is an existing gravel
drive, and varies from nine to fifteen feet in width. The portion of the driveway serving 507
Grandview traverses the southern portion of the subject parcel. The property located at 507
Grandview has a 20-foot wide access easement that traverses the southern portion of the subject
property. The property located at 507 Grandview Dr. contains a single-family residence and is
located outside of the Ashland City Limits. A portion of Wrights Creek daylights near the
southwest comer ofthe property and is situated between the driveway and Grandview Dr.
III. FINDINGS APPLYING APPLICABLE CODE CRITERIA
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -4-
1) The City Council finds and determines that the relevant approval criteria are found in or
referenced in ALVO Chapter 18.62, including but not limited to the criteria for issuance of a
Physical Constraints Review Permit as described in ALVO 18.62.040.1 as follows:
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.
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 Planning Commission shall consider the existing development
of the surrounding area, and the maximum permitted development permitted by the Land
Use Ordinance.
2) The Opponent's appeal notice to the City Council states that the "decision of the Planning
Commission should be reversed because the findings are in direct violation of applicable Code
criteria in ALVO 18.62.040..." Opponent made no new allegation as regards this assignment of
error after the Planning Commission, nor has opponent provided additional information on the
parts of the proposal that she believes do not meet the approval criteria. As noted above,
18.62.040., subsection 1., represents the approval criteria in 18.62.040. The Opponent points to
ALVO 18.62.040 alleging incomplete application material to make a determination on the
application. The City Council finds and determines that the application requirements of 18.62.040
(subsection H) are not approval criterion for this decision. [January 9, 2007 pA-5] Specifically,
Opponent appears to focus on the slope determination as a criterion, see discussion below of slope
under Other Allegations. To the extent Opponent also asserts the Purposes are approval criterion
for this decision [p 6-7 January 9,2007) the Council finds and determines that purposes are not
approval criterion. The Council finds that it has received all information necessary to make a
decision based on the Staff Report, public hearing testimony and the exhibits received in the record
as a whole.
3) The Council finds and determines that this "development" proposal, as revised, including
grading, paving and utility construction in the Flood Plain and Riparian Preservation Area, to
support the construction of a single family residential building meets all applicable criteria for an
Environmental Constraints Review Permit described or referenced in the ALVO Chapter 18.62;
This finding is supported by competent substantial evidence in the whole record as well as by the
detailed findings set forth herein, and the detailed findings of the Ashland Planning Commission
dated March 13,2007, the July 17,2007 and May 15,2007 Council Communications, the detailed
findings provided by the Applicant, including specifically the "Project Narrative/Findings"
document, and supplements to that document, specifically incorporated herein and made a part
hereof by this reference.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -5-
4) For clarification, the revision to the development proposal noted above is summarized
here: Opponent Broderson acquired tax lot 412 in March 2007; subsequently a survey was
performed and opponent refused to provide an easement over tax lot 412 for the existing
driveway or new driveway construction. Accordingly, the applicant revised the Preliminary
Grading and Drainage Plan for this application to move the proposed driveway completely off
tax lot 412. This results in a shift in the driveway of approximately one foot to the southwest.
The previous proposed driveway included 280 square feet of widening and paving of the
driveway beyond the existing driveway surface (pg. 45 of the Council record). The revised
estimate for widening and paving beyond the existing driveway surface is 324 square feet.
Therefore, the shift in the driveway off of tax lot 412 results in an additional 44 square feet of
driveway construction outside of the existing driveway to the subject property. This additional
44 square feet is in the regulated 20 feet from the top of the bank of Wrights Creek. All areas
within 20 feet (horizontal distance) of any creek designated for Riparian Preservation are
classified as Floodplain Corridor Lands in accordance with 18.62.050.A.2.
In addition a second revision in the application involved the location of the utility trench in the
Grandview Dr. right-of-way. The applicant had agreed to a condition of the Planning
Commission approval that the utility trench in the Grandview Dr. right-of-way would be moved
to the north so that the utility trench is completely outside of the regulated 20 feet from the top of
the bank of Wrights Creek (pg. 34 of Council record, condition 6). However, in preparing the
revised application materials, the location of the trees on the north side of the Grandview Dr.
right-of-way near the intersection with Wrights Creek Dr. was surveyed. If the utility line is
moved entirely outside of the regulated 20 feet from the top of bank ofWrights Creek, the line
would impact the cluster of trees. As a result, the applicant proposed to locate the utility line as
originally proposed. The revised application submittals state that approximately 100 lineal feet
of proposed utility trench lies within 20 feet of the top of bank.
5) Criterion: [ALUO 18.62.040.I.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.
The Council finds and determines that this criterion requires consideration of the potential
impacts of the proposed development to the property and nearby area and minimization of
adverse impacts. The standard does not specify "no impact." It is through the application of the
development standards of this Chapter that the consideration and minimization of impacts is to
be accomplished. The development standards to be applied are determined by the applicable
land classification for the lands being developed as established under ALUO 18.62.050. More
than one classification may apply; however, the restrictions applied are only those which pertain
to those portions of the land being developed and not necessarily the whole parcel. [ALUO
18.62.050.F.]
Portions of the subject property are within two distinct land classifications - Flood Plain and
Riparian Preservation. The property is adjacent to Wrights Creek which is identified as a
Riparian Preservation Creek on the adopted City of Ashland Physical and Environmental
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -6-
Constraints Map and ALUOI8.62.050B. All areas within 20 feet (horizontal distance) of any
creek designated for Riparian Preservation are classified as Floodplain Corridor Lands in
accordance with 18.62.050.AA. Although the Code does not expressly so provide, the distance
of "20 feet of any creek" has been interpreted to be 20 feet from the top of the bank. A Physical
Constraints Review Permit is therefore required for any "development" within Floodplain
Corridor Lands and Riparian Preserve Lands on the subject property in accordance with
18.62.040.
"Development" is defined in Chapter 18.62.030 E. as follows:
Development - Alteration of the land surface by:
1. Earth-moving activities such as grading, filling, stripping, or cutting involving more than 20
cubic yards on any lot, or earth-moving activity disturbing a surface area greater than 1000
sq. ft. on any lot;
2. Construction of a building, road, driveway, parking area, or other structure; except that
additions to existing buildings of less than 300 sq. ft. to the existing building footprint shall
not be considered development for section 18.62.080.
3. Culverting or diversion of any stream designated by this chapter.
The Applicants propose re-grading and paving of the existing driveway, including that portion of
the driveway on the adjacent lot [T.L 411] as well as the driveway approach connection in the
Grandview Drive right-of-way. Although the driveway is considerably longer, only a small
portion of the driveway improvement is located within 20 feet from the top of the bank of
Wrights Creek. Grading and driveway construction as well as placement of fill is expressly listed
as development, (provided it exceeds 20 cubic yards on any[ single] lot or disturbance of 1000
square feet on any [single] lot). Additionally, a private storm drain line and outlet, and a utility
trench connecting the new home to the existing services near the intersection of Wrights Creek
Dr. will be installed; portions of the private storm drain system and of the utility trench are
located within 20 feet from the top of the bank. Accordingly, the City Council finds and
determines that a Physical Constraints Review Permit is required for this proposed development
on that portion of the properties identified within 20 feet of the top of bank. (The City Council
notes however that earth moving activities restricted to the right of way (i.e. not located on a lot)
do not fit within the express definition of development, and it appears possible that there is
actually less than 1000 square feet of disturbance associated with the utility construction in the
right-o.fway and less than 20 cubic yards offill on the lots included in this request.)
It is important to clarify that the Physical Constraints Review Permit is limited to the
development of the driveway and utility trenches located in the Floodplain and Riparian Area.
Accordingly, the single-family home and most of the driveway are not located in the Wrights
Creek Floodplain, and as a result are not subject to the Physical Constraints Review Permit.
Because the property is located in the R-l-l 0 Single-Family Residential zoning district, a single-
family home is an outright permitted use. As an outright permitted use, the construction of a
single-family home requires a building permit, and does not in itself require this planning action.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -7-
r" I
However, because ofthe LUBA voluntary remand, discussion of all assignments of error will
address issues which do not directly relate to the Physical Constraint Review Permit but which
relate to the eventual development of the site.
18.62.070
Development Standards for Flood Plain Corridor Lands.
For all land use actions which could result in development of the Flood Plain Corridor, the following is
required in addition to any requirements of Chapter 15.10:
A. Standards for fill in Flood Plain Corridor lands:
1. Fill shall be designed as required by the Uniform Building Code, Chapter 70, where applicable.
2. The toe of the fill shall be kept at least ten feet outside of floodway channels, as defined in section
15.10, and the fill shall not exceed the angle of repose of the material used for fill.
3. The amount of fill in the Flood Plain Corridor shall be kept to a minimum. Fill and other
material imported from off the lot that could displace floodwater shall be limited to the
following:
a. Poured concrete and other materials necessary to build permitted structures on the lot.
b. Aggregate base and paving materials, and fill associated with approved public and private
street and driveway construction.
c. Plants and other landscaping and agricultural material.
d. A total of 50 cubic yards of other imported fill material.
e. The above limits on fill shall be measured from April 1989, and shall not exceed the above
amounts. These amounts are the maximum cumulative fill that can be imported onto the
site, regardless of the number of permits issued.
4. If additional fill is necessary beyond the permitted amounts in (3) above, then fill materials
must be obtained on the lot from cutting or excavation only to the extent necessary to create an
elevated site for permitted development. All additional fill material shall be obtained from the
portion of the lot in the Flood Plain Corridor.
5. Adequate drainage shall be provided for the stability of the fill.
6. Fill to raise elevations for a building site shall be located as close to the outside edge of the
Flood Plain Corridor as feasible.
The Council finds and determines that the above fill standards are met or will be met by the
proposal as evidenced by competent substantial evidence in the whole record as well as by the
detailed findings set forth herein, the detailed findings of the Planning Commission, and the detailed
findings provided by the Applicant, specifically incorporated herein and made a part hereof by this
reference. Compliance with the standards ensures identification and minimization of project
impacts on the site and the surrounding area.
Specifically, the Applicant proposes to fully comply with the applicable fill standards identified in
18.62.070 A [Findings P.8] As regards AI, the reference to the Uniform Building Code is now
outdated and the reference should be to the International Building Code. As regards 18.62.070A2.
Opponent argues the standard is violated because the application findings identify only an eight (8)
foot wide buffer between the TOCB and the proposed paved driveway. The standard requires a ten
foot separation outside "floodway channels" as defined in section 15.10. AMC 15.10.050 I.
defines "Flood-way" as "that channel of a river or other watercourse and the adjacent land areas
that must be reserved in order to discharge the base flood without cumulatively increasing the
water surface elevation more than one (1) foot." (emphasis added) The definition of floodway
includes both the "channel" and adjacent lands sufficient to accept discharge. Thornton
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -8-
Engineering has also identified the adjacent lands under this standard are situated well below the
top of creek bank. Accordingly, the Council finds and determines that the standard is not
violated. As regards 18.62.070A3., plans indicate in a note that "All fill material used for
driveway construction and utility installation shall be at original ground elevation (i.e. no fill will
impede floodwaters)." Accordingly, the standard in A3. to minimize fill appears to be met or will
be met. Off site materials are limited by A3. to specific purposes. The reference in A3.b. to
"aggregate base and paving materials and fill associated with ... private ... driveway construction"
clearly authorizes the use of this material and fill in the Flood Plain in the construction of the
proposed driveway. (See also the demonstrated compliance with standards for driveway
construction below). Given the small amount of driveway located in the Flood Plain the limitation
to 50 cubic yards in the floodplain is not exceeded. A subsurface drainage plan is provided for the
driveway as required by standard 18.62.070.A5. The building site is not located in the Flood Plain
rendering 18.62.070.A6 inapplicable.
B. Culverting or bridging of any waterway or creek identified on the official maps adopted pursuant to
section 18.62.060 must be designed by an engineer. Stream crossings shall be designed to the
standards of Chapter 15.10, or where no floodway has been identified, to pass a one hundred (100)
year flood without any increase in the upstream flood height elevation. The engineer shall consider
in the design the probability that the culvert will be blocked by debris in a severe flood, and
accommodate expected overflow. Fill for culverting and bridging shall be kept to the minimum
necessary to achieve property access, but is exempt from the limitations in section (A) above.
Culverting or bridging of streams identified as Riparian Preservation are subject to the requirements
of 18.62.075.
No bridging or culverting is proposed in the Riparian Preservation Area or Flood Plain. This
criterion is inapplicable to the requested development.
C. Non-residential structures shall be flood-proof to the standards in Chapter 15.10 to one foot above
the elevation contained in the maps adopted by chapter 15.10, or up to the elevation contained in the
official maps adopted by section 18.62.060, whichever height is greater. Where no specific elevations
exist, then they must be floodproofed to an elevation of ten feet above the creek channel on Ashland,
Bear or Neil Creek; to five feet above the creek channel on all other Riparian Preserve creeks defined
in section 18.62.050.B; and three feet above the stream channel on all other drainage ways identified
on the official maps.
No non-residential structures are proposed in the Riparian Preservation Area or Flood Plain. This
criterion is inapplicable to the requested development.
D. All residential structures shall be elevated so that the lowest habitable floor shall be raised to one foot
above the elevation contained in the maps adopted in chapter 15.10, or to the elevation contained in
the official maps adopted by section 18.62.060, whichever height is greater. Where no specific
elevations exist, then they must be constructed at an elevation of ten feet above the creek channel on
Ashland, Bear, or Neil Creek; to five feet above the creek channel on all other Riparian Preserve
creeks defined in section 18.62.050.B; and three feet above the stream channel on all other drainage
ways identified on the official maps, or one foot above visible evidence of high flood water flow,
whichever is greater. The elevation of the finished lowest habitable floor shall be certified to the city
by an engineer or surveyor prior to issuance of a certificate of occupancy for the structure.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -9-
No residential structures are proposed in the Riparian Preservation Area or Flood Plain. This
criterion is inapplicable to the requested development.
E. To the maximum extent feasible, structures shall be placed on other than Flood Plain Corridor
Lands. In the case where development is permitted in the Flood Plain Corridor area, then
development shall be limited to that area which would have the shallowest flooding.
Residential structures are proposed on the subject property outside Flood Plain Corridor lands.
This criterion is complied with or otherwise inapplicable to the requested development.
F. Existing lots with buildable land outside the Flood Plain Corridor shall locate all residential
structures outside the Corridor land, unless 50% or more of the lot is within the Flood Plain
Corridor. For residential uses proposed for existing lots that have more than 50% of the lot in
Corridor land, structures may be located on that portion of the Flood Plain Corridor that is two feet
or less below the flood elevations on the official maps, but in no case closer than 20 feet to the channel
of a Riparian Preservation Creek. Construction shall be subject to the requirements in paragraph D
above.
Residential structures are proposed on the subject property outside Flood Plain Corridor lands.
This criterion is met by the proposed development of the residential structure.
G. New non-residential uses may be located on that portion of Flood Plain Corridor lands that equal to
or above the flood elevations on the official maps adopted in section 18.62.060. Second story
construction may be cantilevered over the Flood Plain Corridor for a distance of 20 feet if the
clearance from finished grade is at least ten feet in height, and is supported by pillars that will have
minimal impact on the flow of floodwaters. The finished floor elevation may not be more than two
feet below the flood corridor elevations.
Residential structures are proposed on the subject property outside Flood Plain Corridor lands.
This criterion is met by the proposed development of the residential structure. No cantilevering
over Flood Plain Corridor lands is proposed.
H. All lots modified by lot line adjustments, or new lots created from lots which contain Flood Plain
Corridor land must contain a building envelope on all lot(s) which contain(s) buildable area of a
sufficient size to accommodate the uses permitted in the underling zone, unless the action is for open
space or conservation purposes. This section shall apply even if the effect is to prohibit further
division of lots that are larger than the minimum size permitted in the zoning ordinance.
The proposal does not include the creation of lots or modification of lot lines. Accordingly this
criterion is inapplicable.
I. Basements.
1. Habitable basements are not permitted for new or existing structures or additions located
within the Flood Plain Corridor.
2. Non-habitable basements, used for storage, parking, and similar uses are permitted for
residential structures but must be flood-proofed to the standards of Chapter 15.10.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -10-
Residential structures are proposed on the subject property outside Flood Plain Corridor lands.
Accordingly this criterion is inapplicable.
J. Storage of petroleum products, pesticides, or other hazardous or toxic chemicals is not permitted in
Flood Plain Corridor lands.
No storage of prohibited materials is proposed by the application. This criterion is met.
K. Fences constructed within 20 feet of any Riparian Preservation Creek designated by this chapter
shall be limited to wire or electric fence, or similar fence that will not collect debris or obstruct flood
waters, but not including wire mesh or chain link fencing. Fences shall not be constructed across any
identified riparian drainage or riparian preservation creek. Fences shall not be constructed within
any designated floodway.
No fences are proposed for construction in the Flood Plain Corridor lands. Accordingly this
criterion is inapplicable.
L. Decks and structures other than buildings, if constructed on Flood Plain Corridor Lands and at or
below the levels specified in section 18.62.070.C and D, shall be flood-proofed to the standards
contained in Chapter 15.10.
Residential structures are proposed on the subject property outside Flood Plain Corridor lands. No
decks are proposed for construction in the Flood Plain Corridor lands. Accordingly this criterion is
inapplicable.
M. Local streets and utility connections to developments in and adjacent to the Flood Plain Corridor
shall be located outside of the Flood Plain Corridor, except for crossing the Corridor, and except in
the Bear Creek Flood Plain Corridor as outlined below:
1. Public street construction may be allowed within the Bear Creek Flood Plain Corridor as
part of development following the adopted North Mountain Neighborhood Plan. This exception
shall only be permitted for that section of the Bear Creek Flood Plain Corridor between North
Mountain Avenue and the Nevada Street right-of-way. The new street shall be constructed in
the general location as indicated on the neighborhood plan map, and in the area generally
described as having the shallowest potential for flooding within the corridor.
2. Proposed development that is not in accord with the North Mountain Neighborhood Plan
shall not be permitted to utilize this exception.
The City Council finds and determines that the above Flood Plain standard (subsection M) prohibits
development proposals from locating or siting new local streets and associated utilities in Flood
Plain Corridors. The purpose of the prohibition is to keep new subdivisions and new partitions
from attempting to maximize development by utilization of Flood Plain and Riparian Lands for
subdivision or partition infrastructure. Grandview Drive, the existing local street right-of-way and
gravel street abutting the subject property, (from the intersection with Wrights Creek Dr. to the
subject parcel), is currently existing within 20 feet from the top of bank of a fork of Wrights
Creek, and therefore is currently existing and located in Flood Plain Corridor Lands and Riparian
Preservation Lands. Grandview Dr. is a public street right-of-way and the section of Grandview
Dr. from the intersection with Wrights Creek Dr. to the southeast corner of the subject parcel was
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -11-
dedicated as street right-of-way in 1971. The portion of the Grandview Dr. right-of-way
adjacent to the southern boundary of the subject parcel was dedicated as right-of-way as part of
the land partition process that created the parcel in 1979. Chapter 18.62, Physical and
Environmental Constraints including development standards for riparian corridor lands was
adopted in 1986. The existing gravel street and right of way, including utilities located therein,
do not violate the Code, because they were legally established at the time the Flood Plain Corridor
standards prohibiting locating streets in the corridor were adopted. No new street is being located in
the Corridor with this application.
It has been asserted by Opponent [p.5-6, 1-9-07] that the above referenced provision prohibits
driveway construction and single family residential utility connections running from the existing
City street to the proposed single family residential unit on the existing lot. Opponent asserts that
only crossings are permitted are permitted under the language in M. above. The City Council finds
and determines that the existing Grandview Drive right-of-way including existing utilities are not
prohibited by this code provision, as no new street is being located. In addition, "crossing" the
flood plain corridor is not defined in subsection M as a perpendicular crossing; consistent with
minimization of impacts, the Council finds and determines that crossing into the corridor for
authorized purposes, [18.62.070.A.3; 18.62.075.A.3] including encroachment for access, utilities
and driveway construction. [See modified condition 6]. This provision of the Code does not
prohibit grading or improvement to the existing right-of-way or the construction of driveways and
private utility lines to service individual homes. Driveways and their associated stormwater
drainage are expressly authorized in the Flood Plain Corridor in 18.62.070 A.3.b and A 5.
Similarly, fill and culverting for access (which clearly included driveways contrary to Opponent's
assertion - p.7, January 9,2007) and utilities is expressly permitted in Riparian Preservation Lands
[18.62.075.A.3.]. Opponent's interpretation of this section negates these substantive ALVO
provisions. Further, the Council finds and determines that to interpret ALVO 18.62.070.M in the
manner proposed by opponent, would preclude all access to the subject property and preclusion of
all access would preclude all reasonable use of the site. While it may be the opponent's objective
to stop all development of the property, the Council finds and determines that this Code section
does not preclude improvements necessary for access (driveway and utility) and reasonable use
of private property. This finding is consistent with Goal 5 allowances for encroachments into
protection zones for access and utilities and exceptions to avoid takings claims. In addition,
while non-perpendicular crossing of Flood Plain Corridors and Riparian Preservation Lands is to be
avoided, such right angles are required only to the greatest extent feasible. [18.62.075.A.3.] To
minimize impact of private utility lines and connections crossing into the Flood Plain Corridor and
Riparian Preservation Areas, and to minimize tree destruction, the Council modified Condition 6 to
require locating the lines as far north as possible. Finally, as noted above, the Council finds and
determines that the ground disturbance associated with the utility construction in the right-of-way
do not fit within the express definition of development (on a lot), and even if such lot definition
applied to right of way, the utility extension is actually much less than 1000 square feet of
disturbance. Similarly, the stormwater utility on the lot appears to be below the 'development'
threshold.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LA W AND ORDER Page -12-
The City Council finds and determines that the above Flood Plain Corridor standards are met or
will be met by the proposal as evidenced by competent substantial evidence in the whole record as
well as by the detailed findings set forth herein, the detailed findings of the Planning Commission,
the incorporated Council communications and the detailed findings provided by the Applicant,
including specifically the Findings documents, specifically incorporated herein and made a part
hereof by this reference. Compliance with the above standards ensures identification and
minimization of project impacts on the site and surrounding area.
18.62.075
Development Standards for Riparian Preservation Lands.
A. All development in areas indicated for Riparian Preservation, as defined in section 18.62.050(B),
shall comply with the following standards:
1. Development shall be subject to all Development Standards for Flood Plain Corridor Lands
(18.62.070)
2. Any tree over six inches d.b.h. shall be retained to the greatest extent feasible.
3. Fill and Culverting shall be permitted only for streets, access, or utilities. The crossing shall be at
right angles to the creek channel to the greatest extent possible. Fill shall be kept to a minimum.
4. The general topography of Riparian Preservation lands shall be retained.
Based on the detailed findings set forth above for Flood Plain Corridors referenced in
l8.62.070.A.l., the City Council finds and determines that the above Riparian Preservation Land
standards are met or will be met by the proposal as evidenced by competent substantial evidence
in the whole record as well as by the detailed findings set forth herein, the detailed Planning
commission findings, incorporated Council communications, the detailed findings provided by the
Applicant, including specifically the Findings documents, specifically incorporated herein and made
a part hereof by this reference. The Council finds and determines that trees are preserved to the
greatest extent feasible and that the general topography of Riparian Lands is retained. Specifically,
contrary to Opponent's assertions to the contrary, the proposed driveway construction will maintain
generally the existing grade and topography as per the note on the Applicant's plans. The
preservation of topography is qualified by the word "generally, " accordingly, absolute in situ
preservation of Riparian Preservation Areas is not required by the Code; alteration is permitted
under many specific standards listed in Flood Plain standards noted above, to require otherwise
would render these provisions moot. This development is consistent with those standards.
Mitigation measures which enhance and improve the existing altered condition of the riparian area
are not inconsistent with this standard. Compliance with the standards herein ensures identification
and minimization of project impacts on the site and surrounding area. This criterion is met.
6) Criterion: [ALUO 18.62.040.1. 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.
The City Council finds and determines that the above criterion is met or will be met by the
proposal as evidenced by competent substantial evidence in the whole record as well as by the
detailed findings set forth herein, the findings of the Planning Commission, the findings set forth
above, the incorporated Council Communications, and the detailed findings provided by the
Applicant, including specifically the Findings documents, specifically incorporated herein and made
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -13-
a part hereof by this reference. The Council finds and determines that compliance with the
standards identified in ALUO 18.62.040.1.1 above ensures identification and minimization of
project impacts and hazards on the site and surrounding area. In addition, the record reflects
Applicant has considered potential hazards and proposed suitable implementation measures to
mitigate the potential hazards. The portions of the proposed development in the Wrights Creek
Floodplain include improvement of a portion of an existing driveway, re-grading the transition of
the driveway to Grandview Drive, the installation of a private storm drain and the extension of
utilities to serve a new single-family residence for the property located at 720 Grandview Dr.
The areas of development in the floodplain have been minimized and the potential hazards due to
those areas of development have been mitigated. As noted below, the impacts to Wrights Creek
occurred in the past when Grandview Dr. and the subject shared driveway were located and
developed.
Specifically the Applicant has proposed drainage and erosion measures identified in the
Applicants findings and plans, as well as suitable placement of improvements, permeable
driveway surfaces and re-vegetation to mitigate impacts and hazards. [Findings pp. 7-9]. The
proposed development minimizes additional new impacts by locating driveway improvements,
the storm drain and the utility trench to the greatest extent in areas that have already been
disturbed through the past street and driveway construction. A relatively small area will be
newly disturbed that is located between the existing driveway and the top of the bank including
(as revised) approximately is 324 square feet, 40 lineal feet of storm drain trench, 25 square feet
for the storm drain outlet and 100 lineal feet of utility trench. Accordingly, the Council finds and
determines that with modification of the drainage structures as provided in Condition 5 below, the
potential hazards have been considered and appropriate mitigation measures proposed. This
criterion is met.
7) Criterion: [ALUO 18.62.040.1.3.] 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 Planning Commission shall
consider the existing development of the surrounding area, and the maximum permitted
development permitted by the Land Use Ordinance.
The City Council finds and determines that the above criterion is met or will be met by the
proposal as evidenced by competent substantial evidence in the whole record as well as by
the detailed findings set forth herein, the detailed findings of the Planning Commission, the
incorporated Council Communications, the detailed findings set forth above, the findings
provided by the Applicant, including specifically the Findings documents, specifically
incorporated herein and made a part hereof by this reference. The Council finds and
determines that compliance with the standards identified in ALUO 18.62.040.1.1. ensures
identification and minimization of project impacts on the site and surrounding area. In
addition, the record reflects Applicant has taken all reasonable steps to reduce or minimize
adverse inpact on the environment.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -14-
The record reflects the existing condition of the property and surrounding area, including
Riparian and Flood Plain areas is significantly altered. This inquiry into existing conditions
on site and the surrOlmding area is required. The maximum permitted residential density as
reflected in the record for this parcel is one single family unit, which is the same as the use
proposed. No other development can be accomplished pursuant to this application. The
proposal, considering the existing conditions and maximum density allowed will only
improve the existing conditions through mitigation.
The floodplain was obviously altered at some time in the past in the construction, improvement
and maintenance of Grandview Dr. (1971 and 1979) and the adjacent driveways. The section of
the driveway that serves the subject property is an existing driveway that is improved with a
gravel surface. In review of the 1979 Land Partition file that created the subject parcel,
Grandview Dr. was in place and was required to be re-graded as a condition of the planning
approval. This indicates that the gravel driving surface that constitutes Grandview Dr. was in
place at least as far back as 1979. In addition, the easement for the adjacent property to the west
located at 507 Grandview Dr. was established in the land partition process in 1979. The
Applicants can not control the location of Grandview Dr., or change the fact that it was platted
adjacent to and in a riparian corridor. Furthermore, the Applicants did not have any influence
over the location of Grandview Dr. The Grandview Dr. and driveway location and development
occurred before the requirement for a Physical Constraints Review Permit. Chapter 18.62,
Physical and Environmental Constraints including development standards for Riparian Corridor
Lands was adopted in 1986.
The previously established location of the street right-of-way dictates the location of the
driveway access and utility connections to serve the subject parcel. Given the location of the
Grandview Dr. right-of-way, there are no alternative locations available for the driveway or
private storm drain line located outside of the Wrights Creek floodplain. In addition, an
alternative access to the subject parcel is not available because the subject property is not
adjacent to any other street right-of-ways, nor does it have any other available access easements.
The impact to the Wrights Creek floodplain and preservation area occurred prior to the current
proposal when Grandview Dr. and the existing shared driveway were located and constructed.
Furthermore, regardless of the development of the subject parcel, the driveway will continue to
serve the home on the adjacent parcel to the west at 507 Grandview Dr.
The square footage of the shared driveway together with the Applicant's driveway in the Wrights
Creek floodplain should it be fully improved is approximately 744 square feet in size. This
includes the area of the existing shared gravel driveway. According to Staff's calculations, there
is approximately 320 square feet of widening and paving ofthe driveway outside of the existing
driveway surface, and it is located mostly in the Grandview Dr. right-of-way. The improvement
is located above the top of the bank where a top of the bank is currently existing. The proposed
paving and widening of the driveway minimizes the impact to the floodplain to the greatest
extent possible by following the existing driveway location. Since the existing driveway is in
place, the impacts to the Wrights Creek floodplain have largely occurred and the driveway
improvement will not create significantly different impacts than those that have occurred.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -15-
The private storm drain includes a rock outlet to slow the water entering the drainage and to
prevent erosion in the area ofthe outlet. The utility trench connecting the subject parcel to the
public utilities near the intersection of Grandview Dr. with Wrights Creek Dr. is located in the
driveway and then turns east and runs near the northern edge of the existing Grandview Dr.
driving surface. There is approximately 20 feet of trench that extends beyond the driveway
towards the top of the bank. The existing Grandview Dr. driving surface is located between the
majority of the length of the utility trench and the top of the bank of Wrights Creek. The trench
is located above the top of the bank, and is not entirely with the Wrights Creek floodplain. There
is approximately 15 feet of unused street right-of-way to the north of the Grandview Dr. driving
surface. It appears there is enough space to locate utility trench further to 'the north and further
away from the Wrights Creek floodplain. However, it appears the adjacent parcels may be using
this area as private yard space and have installed fences in the right-of-way. The Council finds
and determines that the adverse impacts of the private storm drain line have been mitigated by
use of the rock outfall, as modified. The extent of the storm drain development 'on the lot' may
not even qualify as development subject to the permit sought. Additionally, the utility trench
will not adversely impact the Wrights Creek floodplain as the trench will be located in existing
disturbed areas as far north as possible from the top of Creek Bank. Again, the square footage of
ground surface disturbance doess not appear to meet the definition of development. The utility
trench crossing that extends outside of the driveway towards the top of the bank has been
minimized. This criterion is met.
IV. OTHER ALLEGATIONS NOT RELATED TO APPROVAL
CRITERION, AND OPPONENTS LUBA ASSIGNMENTS OF ERROR
The written materials provided by Opponent make several assignments of error; when the
assignment of error relates to an approval criterion it is addressed under that criterion above.
Assignments of error not related to approval criterion and related to LUBA assignments of error
are addressed here.
. Slope
The opponents's appeal notice states that "the city has incorrectly designated the slope of the
property and has failed to find what percentage of the property will be covered by impervious
surface;..." The slope designation has been corrected in the Findings of Fact above. The Council
finds and determines that slope of the property is not relevant to the evaluation of the Physical
Constraints Review Permit for the driveway and utility work proposed within 20 feet from the
top of the bank of Wrights Creek. The Physical Constraints Review Permit is limited to the
development of the driveway and utility trenches located in the floodplain. Most of the subject
property, the single-family home and most of the driveway are not located in the Wrights Creek
Floodplain and Riparian Preservation Area. As a result, most of the development of the lot is not
subject to the Physical Constraints Review Permit. The property is however located in the R-l-
10 Single-Family Residential zoning district. A single-family home is an outright permitted use
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -16-
in this district. As an outright permitted use, the construction of a single-family home requires a
building permit, and does not in itself require a planning action.
The impervious surface is identified on the site plan submitted with the application as 31.7
percent of the site including the buildings and driveway. The property is located in the R-1-10
zoning district which allows a maximum of 40 percent of the site to be covered in impervious
surfaces. The fire truck turnaround to the south of the house and the existing driveway to 507
Grandview were added to the driveway plan after the site plan was prepared. The addition of the
gravel turnaround and existing driveway to 507 Grandview Dr. increases the lot coverage to
approximately 41 percent. While lot coverage is a requirement that is addressed at the building
permit and is not relevant to the Physical Constraints Review Permit approval criteria, a
condition of approval [no. 8] is hereby added to ensure that the requiring lot coverage is met
with the building permit.
. Public Notice.
The Opponent's appeal notice to the Council states that the "decision of the Planning
Commission should be reversed ... because of procedural irregularity in that the Commission
ruled on issues which had not been noticed to Appellant or any other participant." The appellant
also raised the issue of the public notice during the Planning Commission proceedings,
(discussed below). The notice for the Council's de novo public hearing on the appeal of the
subject application includes an extensive statement regarding the consideration of the alleged
assignments of error and a description of those six alleged assignments of error (page 1 of the
Council record). Accordingly, if the Planning Commission notice was deficient in any way, the
City Council's de novo hearing pursuant to the detailed notice in the record corrected any error.
. January 5, 2007, January 9, 2007 & January 17,2007. Request for Continuance.
Opponent alleges she was substantially prejudiced, claiming the notice of the Planning
Commission's action was defective and misleading. The basis for the allegation is that the notice
did not expressly mention consideration of the LUBA assignments of error and that the staff
report was not available seven (7) days before the original hearing. On January 9, 2007
Opponent asked for a continuance or for the record to be left open to correct this alleged error.
The Planning Commission left the record open for eight days. Opponent submitted 12 single-
spaced pages of argument and evidence on January 9, 2007 and 19 more pages on January 17,
2007. Planning staff asserted that the staff report was available seven days before the meeting,
only it was not in the file because it was being copied. Regardless, the Planning Commission
finds and determines that with leaving the record open for eight days, the Opponent has had
more than ample notice and opportunity to present her objections to the application and the
supplement her original arguments as regards the original LUBA assignments of error. As the
Applicant pointed out, the Opponent was well aware that the City was required to address the
assignments of error in this planning action as part of the voluntary remand. Opponent received
notice of and called up the administrative decision. The City is not required to agree with
Opponents assignment of errors; that is to say the City is not required to process applications the
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -17-
City does not believe apply to this type of development. City herein makes findings as regards
what it believes to be the applicable criteria. The Planning Commission found that Opponents
substantial rights were not prejudiced. The City Council agrees. Unlike most remand
proceedings, Opponent has the right to a local de novo appeal to the City Council, and took
advantage of that right.
. Private Driveway in Grandview Drive
The appeal notice to the Citry Council states that "the Planning Commission has approved
expansion and development of a private driveway on property in a protected riparian area, which
property was dedicated to the City and is a resource of all citizens of Ashland;..."
Opponent appears to argue that driveways are prohibited in Floodplain Corridor Lands and
Riparian Preservations Areas. The findings set forth above address the express recognition of
driveway, utility and access improvements, and are incorporated herein by this reference. The
Physical Constraints Review Permit is a mechanism that can allow development in certain
situations in areas constrained by natural features given the criteria for approval and
development standards are satisfied. The application description and analysis according to the
approval criteria and development standards for Floodplain Corridor Lands are covered in detail
in the application, staff reports and findings documents.
The second aspect of this assignment of error appears to be that a private driveway should not be
permitted to be expanded and improved in the Grandview Dr. right-of-way. Condition number
seven below, (also Council record page 34) requires an encroachment permit for the private
driveway in the Grandview Dr. right-of-way. This is the established Ashland Municipal Code
agreement (AMC Chapter 13) for such use of the right-of-way. The location of the existing
driveway in the street right-of-way is also a historical situation that appears to have been in place
at least since the subject property was created in a Land Partition in 1979. The Council finds and
determines that a private driveway can be located in a public street right-of-way with an
encroachment permit as authorized by the Code. Furthermore, the Grandview Dr. right-of-way
was specifically granted to the city for street purposes, which obviously include access to lots
and parcels.
. January 9, 2007 & January 17,2007. Requirement for a Legal Lot.
. LUBA Assignment of Error.
Opponent's LUBA brief, included an assignment of error alleging the subject parcel is not a legal
lot. The determination of legal lot status is not an express approval criterion for issuance of
Physical and Environmental Constraints Review Permit; Nevertheless, owing to the LUBA
remand and to avoid any unnecessary separate action as regards the building permit for this
application, the City Council finds and determines that if legal lot status is found to be necessary
for this Physical and Environmental Constraints Review Permit or for the subsequent Building
Permit, including the Planning Department's zoning compliance determination on this property,
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -18-
the subject lot is determined by the City Council to be legally created pursuant to the recorded
1981 partition plat, and that recorded plat is valid.
Opponent makes two claims in this proceeding. First, a substantive collateral attack on the prior
plat approval stating that no variance was permitted to the maximum lot depth requirement for
partitions and therefore the 1979 variance and associated plat were unauthorized and
jurisdictionally defective. Second, Opponent makes a procedural collateral attack that an alleged
six (6) day delay between [November 9, 1981 and December 15,1981] in a thirty (30) day
recording requirement (per the 1962 ordinance) voids the plat and therefore the lot. The City
Council find and determines that lot is a legal lot for purposes of the proposed development,
including building permit, and that the plat is valid. The Council incorporates by reference and
adopts as its own the analysis of the Ashland City Attorney Mike Franell, dated July 11, 2006
and included in the record. In sum, the Planning Commission had the legal authority to consider
and approve a variance to the maximum lot depth at the time the land partition was approved in
1979. Partitions were included within the Scope (17.04.020) of the Title and the variance
provisions (17.32.020) authorized relief from all regulations in the Title. The 1979 Planning
Commission considered the variance and determined it met the relevant criteria. Thus, the lot
was legally created and the Opponent's challenge is a prohibited collateral attack of a prior un-
appealed decision. Similarly, that the 1962 ordinance in effect at the time the tentative plat was
submitted provided for the plat to be recorded within thirty (30) days of the last signature is not a
jurisdictional requirement voiding the plat; Prior to submission of the final plat, the 1962
Ordinance was repealed and replaced with the 1979 ordinance which provided for sixty (60) days
for recording [18.80.050.H] where the 1962 ordinance provided for 30 days. The Applicant
could take advantage of the favorable change in the law. Further, noncompliance with such a
procedural requirement would make the matter voidable only, especially in light of reliance on
the plat, not just by lot purchasers over the last 26 years but also by the City in accepting the
dedication of right-of-way on Grandview Drive.
. January 9, 2007 Request to incorporate 2004 LUBA appeal into the Record.
Opponent's submission [p.4] requests that the record include "all documents referenceing the
Physical and Environmental Constrains Review Permit from the 2004 LUBA appeal file and
from the City's file in this matter." While Planning Staff did include substantial documents into
the record, the above specifically identified documents were not prepared or introduced by
Opponent or by staff. These items are not included in the record.
The record of a land use proceeding is defined by the administrative rules applicable to the Land
Use Board of Appeals and relevant case law. OAR 661-010-0025(1)(b) provides:
(1) Contents of Record: Unless the Board otherwise orders, or the parties otherwise agree in
writing, the record shall include at least the following:
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -19-
(b) All written testimony and all exhibits, maps, documents or other written materials
specifically incorporated into the record or placed before, and not rejected by, the final decision
maker, during the course of the proceedings before the final decision maker.
(c) Minutes and tape recordings of the meetings conducted by the final decision maker as
required by law, or incorporated into the record by the final decision maker. A verbatim
transcript of audiotape or videotape recordings shall not be required, but if a transcript has been
prepared by the governing body, it shall be included. If a verbatim transcript is included in the
record, the tape recordings from which that transcript was prepared need not be included in the
record, unless the accuracy of the transcript is challenged. Absent local provisions requiring
incorporation, or actual incorporation by the final decision maker, the record of a decision by the
governing body does not include tapes of planning commission meetings.
The rule is that the record is comprised of those matters specifically incorporated or placed
before the final decision maker. The requested documents were not placed before the
Commission nor were they specifically incorporated into the record by the Commission. The
record is now closed. In Nash v. City of Medford, 48 OR LUBA 647 (2004) LUBA found:
Among other things, OAR 661-010-0025(1) (b) requires that a local government include all
"materials specifically incorporated into the record or placed before, and not rejected by, the
final decision maker, during the course of the proceedings before the final decision maker."
However, petitioners do not claim the city council formally incorporated the DDA into the
record or that the DDA was ever placed before the city council during the local proceedings in
this matter. As intervenor points out, mere references to a document, without more, are not
sufficient to make the document a part of the record. Hillsboro Neigh. Dev. Comm. V. City of
Hillsboro, 15 Or LUBA 628, 629 (1987).
Accordingly, such items are not included in the record before the Planning Commission. On
appeal to the City Council, staff submitted an extensive record to the City Council, including a
number of documents associated with the LUBA appeal. However, there was no specific
incorporation by the Council of the entire LUBA record and all documents referenced therein.
. January 9, 2007 & January 17,2007. Applicability of Site Design Criteria.
LUBA Assignment of Error.
Opponent's LUBA brief and submissions [po 13, January 17,2007] included an assignment of
error alleging the proposed single-family home is subject to Chapter 18.72, Site Design and Use
Standards. While building permits for single family homes undergo a zoning compliance
determination, the provisions of Chapter 18.72, Site Design and Use Standards have not been
applied to single-family residential development in the past. This is because Single-family
homes on individual lots are excluded (regardless of size) from the Site Review process at the
Staff Permit level (see l8.72.040.A.3 below).
18.72.040 Approval Process.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -20-
A. Staff Permit. The following types of developments shall be subject to approval under the Staff
Permit Procedure. Any Staff Permit may be processed as a Type I permit at the discretion of the
Staff Advisor.
I. Any change of occupancy from a less intensive to a more intensive occupancy, as defined in the
City building code, or any change in use which requires a greater number of parking spaces.
2. Any addition less than 2,500 square feet or ten percent of the building's square footage, whichever
is less, to a building.
3. Any use which results in three or less dwelling units per lot, other than sine:le-family homes on
individual lots. (emphasis added)
4. All installations of mechanical equipment in any zone. Installation of disc antennas shall be
subject to the requirements of Section 18.72.160. Any disc antenna for commercial use in a
residential zone shall also be subject to a Conditional Use Permit (18.104). (Ord. 2289 S5, 1984;
Ord. 2457 S4, 1988).
5. All installation of wireless communication systems shall be subject to the requirements of Section
18.72.180, in addition to all applicable Site Design and Use Standards and are subject to the
following approval process:
Zoning Designations Attached to Alternative Freestanding
Existing Structures Support Structures
Structures
Residential Zonesll) CUP Prohibited Prohibited
C-l CUP CUP Prohibited
C-I-D (Downtown f) CUP Prohibited Prohibited
C-l - Freeway overlay Site Review Site Review CUP
E-l Site Review Site Review CUP
M-l Site Review Site Review CUP
SO Site Review CUP CUP
NM (North Mountain) Prohibited Prohibited Prohibited
Historic Districtll) CUP Prohibited Prohibited
A-I (Airport Overlay) CUP CUP CUP
HC (Health Care) CUP Prohibited Prohibited
(1) Only allowed on existing structures greater than 45 feet in height. For the purposes of this section in
residential zoning districts, existing structures shall include the replacement of existing pole, mast, or tower
structures (such as stadium light towers) for the combined purposes of their previous use and wireless
communication facilities.
(2) Permitted on pre-existing structures with a height greater than 50 feet in the Downtown Commercial
district. Prohibited in all other districts within the Historic District, as defined in the Comprehensive Plan.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -2]-
6. Any exterior change to any structure listed on the National Register of Historic Places." (ORD
2802, S2 1997) (Ord 2852 S3, 2000; Ord 2858 S6, 2000)
The text and context ofthe Ordinance is cumulative based on intensity of use. Staff procedure is
the least intense, but excludes single family homes on individual lots, which are not subject to
any process other than building permits. Type I procedure builds on the staff permit process by
requiring additional process for more intense matters, but excluding matters covered by, [and
naturally those exempted from] staff process, owing to the intensity of development. Pertinent
here is the fact single family lot development is exempt from staff review without reference to
size, while three or less requires staff review and four or more requires Type I procedure.
B. Type I Procedure. The following types of developments shall be subject to approval under the
Type 1 procedure:
1. Any change in use of a lot from one general use category to another general use category, e.g.,
from residential to commercial as defined by the zoning regulations of this Code.
2. Any residential use which results in four dwelling units or more on a lot.
3. All new structures or additions greater than 2,500 square feet, except for developments included
in Section 18.72.040(A). (emphasis added)
While B. 3 could be made clearer it does reference the less intense staff review provisions as
being excluded from Type 1. The fact remains single family lot development is of an intensity
which does not require staff review, let alone Type I procedures, regardless of the size of the
structure. The reference to 18.72.040A is enough to capture the exemption imbedded therein.
Furthermore, the Site Design and Use Standards address Multi-Family and Commercial
development, but do not include standards addressing a single-family development. The City
Council finds and determines that Chapter 18.72, Site Design and Use Standards and the Site
Review approval do not apply to single-family homes on individual lots. The proposed
interpretation proffered by the Opponent is expressly rejected as contrary to the full text and
context of the Code. No such review is required for this application and the Council finds the
standards in Chapter 18.72 are not approval criterion for a single family unit development on a
single family lot.
Notwithstanding the above, the Applicant submitted findings in support of site design review in
the event it is determined that such criteria do apply to the application. The City Council finds
and determines, that should the Site Design Review Criteria be applied to this application, the
findings of support in the application demonstrate compliance with the criteria.
. January 9, 2007 & January 17,2007. Physical Constraints Review.
. LUBA Assignment of Error.
The Opponent's LUBA brief included an assignment of error alleging a Physical Constraints
Review permit is required for development of the subject property which is in the Wildfire
Corridor and Wrights Creek Floodplain and Riparian Preservation Area. The Floodplain and
Riparian Preservation issues are addressed above. As regards the matter of Wildfire Lands, a
permit is not required under the text of ALUO 18.62.090 A. (Fire Prevention and Control Plan
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -22-
requirements for subdivisions, partitions and performance standard developments) however
compliance with the requirements for structures in ALUO 18.62.090 B. (Fire Break) will be
required prior to commencement of construction with combustible materials. The application
addresses the Wildfire Lands requirements for construction of a new structure including the
provision of primary and secondary fuel break and that the roof of the proposed residence is a
metal standing seam material. Accordingly, the City Council finds and determines that a
Physical Constraints Review Permit is not required for development of Wildfire Lands in
accordance with 18.62.040; however, the construction of a structure in Wildfire Lands must
comply with the Development Standards for Wildfire Lands in 18.62.090.B.
This criterion is met or will be met.
. January 9, 2007 & January 17,2007. GoalS and Comprehensive Plan Violations.
. LUBA Assignment of Error.
The Opponent's LUBA brief and submissions (p. 9-11 January 9, 2007 and p. 14, January 17,
2007) include assignments of error alleging the City's Riparian ordinance Chapter 18.62 violates
GoalS and the City's Comprehensive Plan. At the time the 2004 building permit was issued, the
City's ordinance had mistakenly, not been acknowledged. After the LUBA remand, Chapter
18.62 was properly acknowledged by the Oregon Department of Land Conservation and
Development on December 23,2005 (see Record, Staff Exhibit A). Notice to participants in that
proceeding was accomplished in accordance with Oregon Statute; Opponent was not a
participant and was not required to be provided notice. Opponent's renewed challenge to the
sufficiency of the ordinance based on the Comprehensive Plan, GoalS and the administrative
rules in this quasi-judicial land use proceeding action is an impermissible collateral attack on a
previously acknowledged land use ordinance. The City Council finds and determines that the
only question for the City Council is whether the application complies with the existing
ordinance, not whether the ordinance violates the goals, comprehensive plan or Oregon
Administrative Rules (OARs).
Even if the OARs implementing GoalS were found to directly apply to this land use application,
the Safe Harbor inventory provisions of OAR 660-023-0090 permit the City to "determine the
boundaries of significant riparian corridors." Significant riparian corridors have setback
distances of 50 feet depending upon the annual stream flow ofthe resource. Wrights Creek was
not determined as a significant riparian corridor because it is not fish bearing. As a result,
Wrights Creek was not identified as significant in the City's Local Wetlands Inventory and
Assessment and Riparian Corridor Inventory prepared by Fishman Environmental Services, July
2005. See the attached Staff Exhibit B including the applicable section of the Local Wetlands
Inventory and Assessment and Riparian Corridor Inventory. Opponent disputes the fish bearing
status of the waterway, noting recommendations for preservation despite barriers to fish passage.
Regardless of fish bearing status, the Safe Harbor provisions of OAR 660-023-0090 permit the
City to allow exceptions in the buffer zones. Specifically, OAR 660-023-090(8) sets forth
parameters for ordinance adoption, including allowance in the ordinance for exceptions to the
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -23-
general prohibition on development in the significant Riparian Corridor. For example, the City
is permitted to create exceptions for intrusion for the following:
(A) Streets, roads, and paths;
(B) Drainage facilities, utilities, and irrigation pumps;
(C) Water-related and water-dependent uses; and
(D) Replacement of existing structures with structures in the same location that do not disturb additional
riparian surface area.
Accordingly, if the safe harbor provision which the City may apply to Goal 5 lands are directly
applicable to this property the exemption which the City may apply are equally applicable.
Accordingly, the City Council finds there is no conflict between the proposed development and
the provisions of Goal 5 or the policies of the Comprehensive Plan.
. January 9, 2007 & January 17,2007. Driveway Requirements.
. LUBA Assignment of Error.
The Opponent's LUBA brief included an assignment of error alleging the "The City erred when
it chose a method of measuring the driveway which did not factor in the slope of the property
and curve of the driveway to determine the actual length ofthe driveway, when it determined
that only one dwelling is accessed using the driveway and when it granted a variance for the
maximum slope of the driveway without following the ALUO provision for granting variances.
The City failed to comply with minimum standards of ALUO 18.76.060 and minimum standards
of the UFC for turnarounds and dead-end streets."
The flag drive requirements are met by the application as addressed below:
The driveway serving the property is subject to the flag drive requirements because it is greater
than 50 feet in length in accordance with the definition of driveway in 18.08.195. The definition
of a driveway and the flag drive requirements are listed below for reference.
18.08.195 Driveway.
An accessway serving a single dwelling unit or parcel of land, and no greater than 50' travel distance
in length. A flag drive serving a flag lot shall not be a driveway. Single dwelling or parcel accesses
greater than 50' in length shall be considered as a flag drive, and subject to all of the development
requirements thereof.
18.76.060
B. Except as provided in subsection 18.76.060.K, the flag drive for one flag lot shall have a
minimum width of 15 feet, and a 12 foot paved driving surface. For drives serving two lots, the
flag drive shall be 20 feet wide, with 15 feet of driving surface to the back of the first lot, and 12
feet, respectively, for the rear lot. Drives shared by adjacent properties shall have a width of 20
feet, with a 15 foot paved driving surface. (Ord. 2815 SI, 1998)
Flag drives shall be constructed so as to prevent surface drainage from flowing over sidewalks or
other public ways. Flag drives shall be in the same ownership as the flag lots served. Where two
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -24-
or more lots are served by the same flag drive, the flag drive shall be owned by one of the lots
and an easement for access shall be granted to the other lot or lots. There shall be no parking 10
feet on either side of the flag drive entrance.
Flag drive grades shall not exceed a maximum grade of 15%. Variances may be granted for flag
drives for grades in excess of 15% but no greater than 18% for no more than 200'. Such
variances shall be required to meet all of the criteria for approval as found in 18.100.
Flag drives serving structures greater than 24 feet in height, as defined in 18.08.290, shall
provide a Fire Work Area of 20 feet by 40 feet within 50 feet of the structure. The Fire W9rk
Area requirement shall be waived if the structure served by the drive has an approved automatic
sprinkler system installed.
Flag drives and fire work areas shall be deemed Fire Apparatus Access Roads under the
Uniform Fire Code and subject to all requirements thereof.
Flag drives greater than 250 feet in length shall provide a turnaround as defined in the
Performance Standards Guidelines in 18.88.090.
The City Council finds and determines that the proposed flag drive on the Applicant's property
meets the flag drive requirements. The width of the shared driveway is 15 feet with 20 feet clear
width and the single driveway serving the new residential home on the subject property is 12 feet
in width with 15 feet clear width. The storm drainage will be collected through the permeable
paved driving and in a drainage ditch to the east side of the driveway, and directed underground
to the discharge structure, (as modified by the Planning Commission). There is no parking in the
vicinity of the shared driveway. The finished driveway grade is shown as ten and 11 percent on
the engineered preliminary grading and drainage plan, which is under the maximum permitted
grade of 15 percent. The application states that an automatic sprinkler system will be installed in
the home in lieu of a fire work area. The driveway will be built as a fire apparatus road to
support a 44,000 pound vehicle. A fire truck turnaround is provided south of the proposed
residence which is according to the application approximately 110 feet from the entrance to the
property, and is 150 feet from the connection of the driveway to Grandview Dr.
Specifically, a turnaround is required to be provided for flag drives greater than 250 feet in
length. A fire truck turnaround is provided south of the proposed residence which is according
to the application approximately 110 feet from the entrance to the property, and is 150 feet from
the connection of the driveway to Grandview Dr.
Chapter 18 does not specify a method for measuring length. It is a standard accepted practice to
measure at the centerline of an accessway (i.e. driveway, private drive, alley, street). The City
Council finds and determines that measuring length from the centerline is an appropriate method
for calculating driveway length. This criterion is met.
Opponent (January 17, 2007 p. 17) asserts Grandview Drive itself is subject to the flag drive
standards and must be improved unless the Fire Chief has waived applicable requirements. In
the event of such waiver Opponent alleges the waiver is unconstitutional. The City Council finds
and determines that such standards are inapplicable to an existing open City Street. Further, if
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -25-
Opponent is correct in her assertion that this City street requires improvement to Flag lot
standards, such an off-site exaction would be disproportionate to the impacts of the proposed
development - i.e. one single family residence. Accordingly, such an exaction shall not be
imposed, nor shall improvement to full City street standards be imposed for this single unit
development.
. January 17,2007. Fire Code Requirements
. LUBA Assignment of Error.
The Opponent's LUBA brief and January 17,2007 submission (p. 16) included an assignment of
error alleging the "Ashland Municipal Code Section 15.28.070 violates UFC 101.4 prohibiting
less stringent amendments and ORS 368.039." ORS 368.039 states that a city may adopt
standards for roads and streets that prevail over the fire code. The City adopted road and street
standards in an acknowledged ordinance in Chapter 18, (Land use regulations which contrary to
Opponent's assertions implement ORS Chapters 92 and 227). The State Fire Marshall's office
has also acknowledged that local road and street standards may prevail over the fire code
requirements (see attached Staff Exhibit C, January 2, 2007 email from Margueritte Hickman).
The flag drive requirements require a fire truck turnaround for drives greater than 250 feet
whereas the fire code requires a turnaround for drives greater than 150 feet. The Council finds
and determines that the proposed turnaround meets both standards. The turnaround is located
150 feet from the intersection of the subject driveway with the Grandview Dr. driving surface.
Compliance with this criterion is met.
. January 9, 2007 Stormwater and Drainage Master Plan.
The Opponent's January 9, 2007 submission (p. 11) identifies the City's Stormwater and
Drainage Master Plan as an approval criterion. The City Council finds and determines that this
plan is not an approval criterion for individual development applications; notwithstanding this
finding. The Planning Commission recognized that direct stormwater discharge to Wright's
Creek is not appropriate given its Riparian Preservation designation, and the Commission
required modification of the discharge condition to require pre-treatment. See Condition 5. The
City Council accepts this condition as responsive to environmental protection purposes of the
Riparian Preservation designation and the applicant accepted the condition imposed by the
Planning Commission. The non-manditory requirements of the Plan are met by the imposition of
this condition.
. Zoning compliance.
The Applicant submitted findings of fact and evidence regarding zoning compliance 18.20 as
regards the proposed development of the Lot. To the extent such review is implicated by the
LUBA remand, the City Council finds and determines that zoning compliance is demonstrated
and incorporates the findings of compliance as set forth in the application materials.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -26-
V.ORDER
In sum, the City Council concludes that the request for a Physical and Environmental Constraints
Review Permit, represented in Planning Action 2006-001784, to develop in the Wrights Creek
Floodplain and Riparian Preservation Area, the improvement (grading and paving) and widening
of a portion of an existing driveway, re-grading of a portion of Grandview Drive and extension
of utilities to serve a single-family residence for the property located at 720 Grandview, within
the City of Ashland, Jackson County, Oregon is in compliance with all applicable approval
criterion. Further, the Planning Commission finds and determines that the Assignments of Error
in LUBA case 2004-201, as they remain applicable to the new development application
processed and approved herein, are herein addressed and decided.
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the
evidence in the whole record, the Ashland City Council hereby APPROVES Planning Action
#2006-01784, subject to strict compliance with the conditions of approval, set forth herein.
Further, if anyone or more of the conditions below are found to be invalid, for any reason
whatsoever, then Planning Action #2006-01784 is denied. The following are the conditions and
they are attached to the approval:
1) That all proposals of the Applicant are conditions of approval unless otherwise modified
here.
2) That an access easement for the portion of the driveway on the property to the east
(391E05CD, tax lot 400) shall be recorded and submitted prior to the issuance of a
building permit.
3) That the area of disturbance for the private storm drain trench shall be landscaped to
prevent erosion, and shall be addressed in the landscape plan submitted with the building
permit submittals.
4) That a landscape and irrigation plan to re-vegetate the area between the driveway and the
top of the bank shall be submitted with the building permit. The landscaping shall be
installed and irrigated prior to issuance of the certificate of occupancy.
5) That the storm drainage from the roof and driveway shall be directed to a retention and
water quality treatment system including but not limited to a planter box, vegetative
swale or a filter strip. The retention and water quality treatment system shall be reviewed
and approved by the Ashland Engineering and Building Divisions.
6) That the public utility trench and lines shall be moved away from the top of bank of
Wrights Creek as far north as possible without disturbing the row of trees in the right of
way and allowing for adjustments during the issuance of the encroachment permit.
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -27-
7) That an encroachment permit from the Ashland Public Works Department for driveway
improvements in the Grandview Dr. right-of-way shall be obtained prior to site
disturbance and construction in the Grandview Dr. right-of-way.
8) That the building permit submittals shall demonstrate compliance with the maximum lot
coverage requirement of 40 percent for the R-I-IO zoning district in accordance with
l8.20.040.F.
Ashland City Council Approval
Signature authorized and approved by the full Council this ~ day of August, 2007
t~
Date: ~ -) S rC'4-
ASHLAND CITY COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page -28-