HomeMy WebLinkAbout2007-227 Findings - Sage Development
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
October 2, 2007
In the Matter ofan Appeal of Planning Action 2007-00455,
A Request for a Final Plan Approval under the Performance
Standards Option Chapter 18.88 for an 18-unit single-family
residential subdivision for the property located at 247 Otis Street
Applicant: Sage Development LLC.
)
) FINDINGS OF FACT
) CONCLUSIONS OF LAW
) AND ORDER
)
)
I. NATURE OF PROCEEDINGS
This matter comes before the City Council for the City of Ashland for a de novo appeal hearing. The appeal is
from a July 10, 2007 decision of the City of Ashland Planning Commission approving a request for final plan
approval on the subject property located at 247 Otis Street.
In January 2007 the City Council granted Outline Plan approval for an 18-unit single-family residential
subdivision and an Exception to the Street Standards to allow curbside sidewalks to preserve trees, wetland and
the existing residence at 247 Otis. Findings of Fact, Conclusions of Law and Order approving the application
in PA 2006-00078 were adopted on January 2,2007, attached hereto as Exhibit A and made a part hereof by
this reference. This final land use decision was not appealed to the Land Use Board of Appeals.
On March 16, 2007, Sage Development LLC filed the application for Final Plan approval for an 18-unit
residential subdivision at 247 Otis Street. The Final Plan application was preliminarily approved by city staff on
May 24, 2007 (PA 2007-00455). Prior to the administrative approval being finalized, a public hearing was
requested by Art Bullock on June 4,2007.
Notification of the public hearing before the Planning Commission on July 10,2007, was mailed, pursuant to
Chapter 18, Ashland Land Use Ordinance to area property owners and affected public agencies. Notice of the
July 10,2007, de novo appeal hearing was also published in the Ashland Daily Tidings. On July 10,2007, the
Planning Commission conducted a public hearing and considered the oral and written testimony presented, the
staffreport and the record as a whole. On July 10, 2007, after the close of the public hearing process and the
close of the record, the City's Planning Commission deliberated and approved the application, subject to
conditions pertaining to appropriate development of the Property. On July 10, 2007, the Findings, Conclusions,
and Order of City's Planning Commission were duly signed by the Chairperson of City's Planning Commission.
On July 27, 2007, opponent Art Bullock filed an appeal to the City Council.. The appeal request states that the
ground for the appeal is the failure of the application to meet Street Standards as required in the Criteria in
247 Otis Street: Final Plan
PA #2007-00455
Page 1
AMC 18.88.030.b.5.g. The specific details explaining the inconsistencies of the proposed Final Plan application
with the Street Standards were not provided with the appeal request. The development's compliance with the
Street Standards was also an approval criterion for the Outline Plan for this project approved January 2, 2007.
The issue was discussed at length during the course of the Planning Commission and City Council meetings
during outline plan approval as it was an issue raised by the same appellant. The street improvements in the
Final Plan application are the same as in the approved Outline Plan.
Notification of the public hearing before the City Council was mailed on August 21,2007 pursuant to ALUO to
area property owners and affected public agencies. Notice of the appeal hearing was also published in the
Ashland Daily Tidings on August 8, 2007. On August 21, 2007, the City Council conducted a public hearing in
the City Council chambers; during the public hearing before the Council, testimony and exhibits were offered
and received in addition to the exhibits and documents reflected in the record before Council. A request was
made by opponent Bullock to leave the record open for seven days.; accordingly the record closed on August 29,
2007. Materials were submitted by the opponent while the record was open. Final written argument was
submitted by the applicant on September 5, 2007. Deliberations were held at a public meeting on September II,
2007. The Council deliberated and approved the application in file 2007-00455, with conditions. The
Council's action denied the appeal and generally upheld the Findings, Conclusions, and Orders of the Planning
Commission. Based upon the evidence in the record, the Council makes the following findings of fact and
conclusions oflaw:
II. FINDINGS OF FACT
I) Thc Nature of Proceedings set forth above are true and correct and are incorporated herein by this
reference.
2) The subject of Planning Action #2007-00455, a Final Plan approval for an 18-unit single-family
residential subdivision under the Performance Standards Option, is real property located within the City of
Ashland ("City"), and described in the County Tax Assessor's maps as 39-IE-04BC, Tax Lot 400 (the
"Property"). The street address of the Property is 247 Otis Street, Ashland, Oregon, 97520.
3) The zoning of the Property is "R-I-5-P" (single family residential).
4) The applicant in Planning Action # 2007-00455, is Sage Development, LLC ("Applicant).
5) The Council finds that it has received all information necessary to make a decision based on the Staff
Report, public hearing testimony the evidence in the whole record including the exhibits received.
III. FINDINGS APPLYING APPLICABLE CODE CRITERIA
I) The Council finds and dctermines that the relevant approval criteria are found in or referenced in ALUO
Chapter 18.88, including specifically the criteria for Final Plan approval under the Performance Standards Options
are described in Chapter 18.88.030 (5) as follows:
247 Otis Street: Final Plan
PA #2007-00455
Page 2
5. Criteria for Final Plan Approval. Final plan approval shall be granted upon finding of
substantial conformance with the outline plan. Nothing in this provision shall limit reduction in
the number of dwelling units or increased open space provided that, if this is done for one phase,
the number of dwelling units shall not be transferred to another phase, nor the open .space
reduced below that permitted in the outline plan. This substantial conformance provision is
intended solely to facilitate the minor modifications from one planning step to another.
Substantial conformance shall exist when comparison of the outline plan with the final plan shows
that:
a. The number of dwelling units vary no more than ten (10%) percent of those shown on the
approved outline plan, but in no case shall the number of units exceed those permitted in
the outline plan.
b. The yard depths and distances between main buildings vary no more than ten (10%)
percent of those shown on the approved outline plan, but in no case shall these distances
be reduced below the minimum established within this Title.
c. The open spaces vary no more than ten (10%) percent of that provided on the outline plan.
d. The building size does not exceed the building size shown on the outline plan by more than
ten (10%) percent.
e. The building elevations and exterior materials are in conformance with the purpose and
intent of this Title and the approved outline plan.
f. That the additional standards which resulted in the awarding of bonus points in the outline
plan approval have been included in the final plan with substantial detail to ensure that
the performance level committed to in the outline plan will be achieved.
g. The development complies with the Street Standards. (Ord 2836, S3 1999)
The sole criterion for Final Plan Approval is "substantial conformance" with the outline plan. The Code
mandates a finding of substantial conformance "i.e. conformance shall exist" when the comparison of the
outline plan with the final plan shows the conditions specified in subparagraph a - g above.
Based on the entire record, and the detailed findings set forth herein, as well as the findings of the Planning
Commission and those submitted by the applicant, the City Council finds and determines that the proposal to
develop an 18-unit single-family residential subdivision meets all applicable criteria for a Final Plan approval
described in the Performance Standards Options Chapter 18.88; The Council further finds and determines that the
final plan is in substantial conformance with the outline plan and that the conditions indicative of substantial
conformance set forth in AMC 18.88.030 (5)(a)-(g) exist.
a. The number of dwelling units vary no more than ten (10%) percent of those shown on the
approved outline plan, but in no case shall the number of units exceed those permitted in
the outline plan.
The City Council finds and determines that the Final Plan proposal is essentially the same as the
approved Outline Plan. The number of dwelling units has not changed. This condition evidencing
substantial conformance is met.
247 Otis Street: Final Plan
PA #2007-00455
Page 3
b. The yard depths and distances between main buildings vary no more than ten (10%)
percent of those shown on the approved outline plan, bnt in no case shall these distances
be reduced below the minimum established within this Title.
The City Council finds and determines that the Final Plan proposal is essentially the same as the
approved Outline Plan. The yard depths, distances between the main buildings and building envelopes
are as shown on the approved outline plan. This condition evidencing substantial conformance is met.
c. The open spaces vary no more than ten (10%) percent of that provided on the outline plan.
The City Council finds that the open space locations are consistent with the approved Outline Plan and
have increased in size. This condition evidencing substantial conformance is met.
The Final Plan project includes four open space areas. As approved in the Outline Plan, there is one
large wetland open space on the western side of the site and one tree park open space in the northeast
comer of the site. Two additional open space areas have been included in the Final Plan application in
accordance with the Outline approval. One o(the new open spaces includes the well that supplies the
private swimming pool and includes a portion of one of the smaller, ditch-like wetlands. The area will
be landscaped and include a water feature that is supplied by water from the well and associated spring
(see L-I Planting Plan and L-Detail Detail Planting Plan.) The second new open space is to the west of
the private swimming pool and includes a wetland.
The wetland open space is identical in size and configuration to the approved Outline Plan application.
The tree park open space will be identical in size and configuration to the approved Outline Plan
application with the addition of condition set forth below. In the Final Plan application, the size of the
tree park open space is reduced by using the eastern portion of the open space area for a flag pole access
for Lot 14. This access would be a legal access point, but functional access would be provided by a
driveway easement from Drager St. The Lot 14 flag pole would be covered with a landscape easement
and not used for vehicle access. Staffrecommended a better solution is to consolidate the functional and
legal access in the same location by delineating the flag pole for Lot 14 in the driveway access from
Drager St. This would allow the eastern portion of the tree park open space to physically remain in that
open space lot. As a result, condition 3 is added which requires that Lot 14 include a flag pole in the
proposed driveway location to Drager St. and that the proposed flag pole for Lot 14 to Randy St. be
eliminated. As a result, the tree park open space will be the same size and configuration as in the
approved Outline Plan application.
The wetland delineation was approved by the Oregon Department of State Lands (DSL). The approval
letter is dated January 12, 2007 and is included in the record. After the DSL approval of the wetland
delineation, DSL approved the wetland mitigation plan with a removal-fill permit was issued on
February 23, 2007. Consistent with the Outline Plan application, the delineation included four wetlands
including one large wetland on the western portion of the parcel, a wetland to the west of the swimming
pool building and two smaller ditch-like wetlands in the center of the property. DSL determined the two
ditch-like wetlands arc "non-jurisdictional" and therefore the wetlands are not required to be preserved
under state law. However, the Final Plan application is consistent with the Outline Plan approval in that
247 Otis Street: Final Plan
PA #2007-00455
Page 4
it retains a portion of one of the ditch-like wetlands in the open space to the east of Lot 15. The wetland
to the west of the swimming pool was expanded to include a long narrow area to the north of the pool.
The long narrow area of the wetland is due to seepage from the swimming pool. A condition has been
added requiring the protection in perpetuity of the long narrow portion of the wetland.
The application includes a water easement for the well and associated spring to address a condition of
approval of the Outline Plan. The easement addresses the condition requirements including protection
of the well and associated spring in perpetuity, the maintenance and enhancement of the well, Lot 18 and
the homeowners association as beneficiaries of the easement and the prohibition of capping, degrading
or destroying the well. The Ashland Legal Department has reviewed the easement, and a condition of
approval has been added requiring the final document to be reviewed and approved as to form by the
Legal Department prior to recording the instrument. A condition of the Outline Plan approval required
that the Final Plan application to address whether a permit is needed to use the spring accessed by the
well. The application addressed the issue with a memo which states that well using less than 15,000
gallons a day for uses such as a pool are exempt, and the subject well has a continuous flow of
approximately 500 gallons a day. The Council finds and determines that this condition of outline plan
approval is met.
The approved Outline Plan identified 24 trees sized six inches diameter at breast height (dbh) on the
subject property and in the adjacent street rights-of-way. The approved Outline Plan identifies twenty of
the trees for preservation and seven trees for removal. The Final Plan identifies six of the trees for
removal. Tree 14 on the Tree Inventory was originally identified for removal because it was located on a
new lot with in a building envelope. However, the number of lots was reduced in the approved Outline
Plan which resulted in the location of Tree 14 on Lot 18. Since no construction is proposed on Lot 18,
Tree 14 will be preserved. Additionally, the project CC&R's requires protection of all trees identified
for preservation in the approved Tree Inventory.
The City Council finds and determines that the Final Plan open spaces vary no more than 10% from the
outline plan approval, and in fact have been increased. This condition evidencing substantial
conformance is met.
d. The building size does not exceed the building size shown on the outline plan by more tban
ten (10%) percent.
The City Council finds and determines that the Final Plan proposal is essentially the same as the
approved Outline Plan. This subdivision does not include buildings, however building envelopes are as
shown on the approved outline plan and do not vary by more than 10%. This condition evidencing
substantial conformance is met.
e. The building elevations and exterior materials are in conformance with the purpose and
intent of this Title and the approved outline plan.
The City Council finds
approved Outline Plan.
and determines that the Final Plan proposal is essentially the same as the
The building elevations and exterior materials included in the Final Plan
247 Otis Street: Final Plan
PA #2007-00455
Page 5
application are identical to those included in the approved Outline Plan application. This condition
evidencing substantial conformance is met.
f. That the additional standards which resulted in the awarding of bonus points in the outline
plan approval have been included in the final plan with substantial detail to ensure that the
performance level committed to in the outline plan will be achieved.
The City Council finds and determines that the Final Plan proposal is essentially the same as the
approved Outline Plan. The Final Plan application confirms that the project will use the Conservation
Housing density bonus and therefore meet the program requirements. This condition evidencing
substantial conformance is met.
g. The development complies with the Street Standards. (Ord 2836, S3 1999)
The City Council finds and determines that the Final Plan proposal is essentially the same as the
approved Outline Plan. Street improvements and compliance with street standards are as shown on the
approved outline plan. This condition evidencing substantial conformance is met.
The proposed streets are consistent with the approved Outline Plan and the Street Standard requirements.
The proposal is to provide access to the subdivision by constructing a new public street and alley. The
street will run through the property and connect to Otis St. to the south and Randy St. to the north. The
street will be built at the Neighborhood Street standard. On Otis St., the frontage of the property on Otis
St. will be improved with a parkrow and sidewalk. On Randy St., the frontage of the property will be
improved with a sidewalk. An Exception to the Street Standards was granted with the Outline Plan
approval to eliminate the parkrow and install a curbside sidewalk due to the wetlands, trees and existing
structures in and near the right-of-way. Additionally, the sidewalk on Randy St. will be installed off the
site from the properties eastern boundary to the intersection with N. Laurel St. This connection will
provide pedestrian access to Helman School and the Dog Park further to the north. Randy St. currently
has sidewalks in place on the south side of the street from the east side of the intersection of Laurel St. to
the Helman St. Helman St. has continuous sidewalks on the east side of the street that provides access to
the Dog Park.
The development's compliance with the Street Standards is also an approval criterion for the Outline
Plan. The issue was discussed at length during the course of the Planning Commission and City Council
meetings as it was an issue raised by the same appellant. The street improvements and compliance with
street standards in the Final Plan application are the same as in the approved Outline Plan P A 2006-
00078. The Council Findings of Fact, Conclusions of Law and Order on the Outline plan, addressing
specifically compliance with street standards are attached hereto and made a part hereof by this
reference. The Council's final land use decision on the Outline Plan was not appealed to LUBA. As
such, appellant's attempt to reargue the same points here (i.e. all streets must be improved) is an
impermissible collateral attack on a prior unappealed land use decision. The applicant has agreed to
sign in favor of a local improvement district for Laurel St. as required in condition 36 of the Outline Plan
approval, and has submitted a determination of traffic impact of the development as required in
condition 37 of the Outline Plan approval.
247 Otis Street Final Plan
PA #2007.00455
Page 6
IV. OTHER ALLEGATIONS BY APPELLANTS
Opponent in his oral and written materials reargues several points raised previously during the outline
plan approval and also raises several arguments not related to approval criterion for the final plan
approval. The Council finds and determines to the extent opponent reargues the same or similar points
and interpretations finally decided in the unappealed outline plan approval, such efforts are
impermissible collateral attacks on prior unappealed decisions and are rejected. The City Council's
outline plan findings, are specifically incorporated herein to address such similar arguments and
allegations. For example, opponent again argues improper delegation and corruption by City staff,
concerning subsequent technical legal review of documents for recording or engineering review of plans
for compliance with code. Such arguments are, as before, expressly rejected as inconsistent with the law
as referenced. To the extent opponent also attempts to create new approval criterion, such as submittal
materials, Council expressly rejects such matters as approval criteria. Further, opponent, a lay person,
does not present any credible professional evidence to controvert the evidence in the record in support of
the application and concerning technical planning or engineering solutions to problems presented by the
site. The Council finds and determines that the opponent's allegations and arguments are adequately
addressed by contrary evidence, findings and arguments contained in the record of this proceeding.
Finally, the opponent also argues procedural error because the City Council did not speci fically
incorporate into the record hundreds of documents and video records of the proceedings associated with
the outline plan approval. The Council finds and determines that this is not error and even if it was
opponent is not prejudiced. The Council's final unappealed land use decision is contained in the record
and represents full disclosure of the substance of the prior proceedings for purposes of this application.
Final Plan is not an opportunity for the opponent to reargue every point and piece of evidence presented
and finally decided in the prior outline plan approval.
V.ORDER
In sum, the City Council concludes that the proposal for Final Plan approval represented in Planning
Action #2007-00455, to develop an 18-unit single-family residential subdivision is in compliance with
all applicable approval criterion and supported by evidence contained within the whole record.
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the evidence
in the whole record, the City Council hereby APPROVES Planning Action #2007-00455, 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 is denied. The
following are the conditions and they are attached to the approval:
I. That all proposals of the applicant shall be conditions of approval unless otherwise modified below.
2. That all conditions of the Outline Plan approval (PA2006-00078) shall remain in effect.
247 Otis Street: Final Plan
PA #2007-00455
Page 7
3. That Lot ]4 shall be reconfigured on the final survey plat to include a flag pole connection to Drager
St. in the location of the driveway access. The proposed flag pole for Lot] 4 connecting to Randy St.
shall be eliminated and the area shall be incorporated into the tree park open space (Common
Property B on the Preliminary Plat). The shared drive portion of the driveway serving Lots 13 and
] 4 is by definition a flag drive and shall be 20 feet in width clear space and the driveway paved to ] 5
feet in width until the point where the driveway branches into two separate driveways in accordance
with] 8.08.] 95 and 18.76.060.B. The individual driveways to Lots 13 and ]4 shall be ] 5 feet in
clear width and ]2 feet in paved with in accordance with ]8.08.] 95 and ]8.76.060.B.
4. That the long narrow portion of the wetland north of the enclosed swimming pool shall be preserved
and protected in perpetuity by a conservation easement, by common area or some similar instrument.
The final instrument shall be submitted for review and approval of the Ashland Planning and Legal
departments prior to signature of the final survey plat.
5. That all easements for sewer, water, electric and streets shall be indicated on the final survey plat as
required by the City of Ashland. A public pedestrian and bicycle easement shall be indicated on the
final survey plat for the multi-use path adjacent to the wetland open space and for the multi-use path
linking Drager St. to Randy St. The alley shall be a public alley.
6. That the water easement for the well and the associated spring located in Common Space E as
identified in the Preliminary Plat shall be submittcd for review and approval of the Ashland Legal
Department prior to signature of the final survey plat.
7. That final copy of the CC&R's for the homeowners association shall be provided with the final
survey plat. CC&R's shall be revised to describe responsibility of the homeowners association for
the maintenance of all parkrows and street trees in the public rights-of-way. The wetland
maintenance schedule shall be revised to include the wetlands in common areas D and E. The
CC&R's shall be submitted for review and approval of the Ashland Legal Department prior to
signature of the final survey plat.
8. Applicant shall execute a document as consistent with ALVa] 8.68.] 50 agreeing to participate in
their fair share costs associated with a future Local Improvement District for improvements to Laurel
St. and to not remonstrate against such District prior to signature of the final survey plat. Nothing in
this condition is intended to prohibit an owner/developer, their successors or assigns from exercising
their rights to freedom of speech and expression by orally objecting or participating in the LID
hearing or to take advantage of any protection afforded any party by City ordinances and resolutions.
9. That the utility plan for the project shall be submitted for review and approval of the Ashland
Engineering Division prior to signature of the final survey plat. The utility plan shall include the
location of connections to all public facilities in and adjacent to the development, including the
locations of water lines and meter sizes, fire hydrants, sewer mains and services, manholes and
clean-outs, storm drainage pipes and catch basins. The rerouted sanitary sewer and storm drain lines
that are being relocated to the new street shall be the same size or larger than the current lines
247 Otis Street: Final Plan
PA #2007-00455
Page 8
running through the site as required by the Ashland Engineering Division. Any required private or
public utility easements shall be delineated on the utility plan.
10. That the existing sewer and storm drain easements running through the site shall be vacated after the
signature of the final survey plat and prior to the issuance of any building permits.
II. That the requirements of the Ashland Fire Department including fire apparatus access, hydrant
spacing and hydrant flow requirements shall be included in the utility plan prior to the signature of
the final survey plat.
12. That the storm drainage plan including but not limited to the design of all required on-site storm
water detention systems shall be submitted for review and approval of the Ashland Planning and
Engineering Divisions prior to signature of the final survey plat. The permanent maintenance of on-
site storm water detention systems must be addressed through the obligations of the homeowners'
association and approved by the Public Works Department and Building Division. Any changes to
the street and sidewalk configuration, lot configurations and open space areas resulting from the
required storm water detention systems shall be processed as a modification of this approval.
13. That the Electric Distribution System Plan shall be reviewed and approved by the Ashland Electric
Department prior to signature of the final survey plat. The plan shall include load calculations and
the location of all primary and secondary services including transformers, cabinets, street lights and
all other necessary equipment.
14. The preliminary engineering for proposed street improvements shall be submitted for review and
approval of the Ashland Engineering Division prior to signature of the final survey plat. Street
improvements shall be consistent with the approved Outline Plan. The offsite sidewalk
improvements on Randy St. connecting the site to Laurel St. shall include a wheelchair ramp at the
comer. The east and west ends of the sidewalk improvements on Otis St. shall match or be close to
the ground level for pedestrian safety and so that the sidewalk can be extended to Elizabeth Ave. and
Laurel St. in the future. Accordingly, if necessary, the Otis St. sidewalk shall transition to a curb side
sidewalk to provide for future sidewalk extensions in both directions on Otis St. Wheelchair ramps
shall be provided on both ends of the off-street multi-use paths adjacent to the western wetland open
space and through the tree park open space.
15. That the mulit-use path connecting Drager St. to Randy St shall be eight feet in width and paved with
concrete, asphalt or a comparable all-weather surfacing. Fencing shall be a minimum of three from
the improved edges of the path to provide clear distance on both sides of the path for safe operation.
The clear distance areas shall be graded to the same slope as the improved path to allow recovery
room for pedestrians and bicyclists. The clear distance areas shall be limited to landscape materials,
and vegetation in excess of 12 inches in height shall not be placed in the clear distance areas.
16. Subdivision infrastructure improvements, including but not limited to utilities, public streets, street
trees and irrigation and open space landscaping and irrigation shall be installed or a bond posted for
the full cost of construction prior to signature of the final survey plat. If a bond is posted for
247 Otis Street: Final Plan
PA #2007-00455
Page 9
common area and open space improvements, the common area and open space improvements
including but not limited to landscaping, irrigation and pathway improvements shall be installed in
accordance with the approved plan prior to the issuance of the ninth building permit (halfway
through the building permits for single-family homes). The project landscape architect shall inspect
the common area and open space improvements for conformance with the approved plan, and shall
submit a final report on the inspection and items addressed to the Ashland Planning Division. The
applicant shall schedule a final inspection including the project landscape architect with the Ashland
Planning Division of the common areas and open spaces prior to issuance of the ninth building
permit.
17. That a Verification Permit in accordance with 18.61.042.B shall be applied for and approved by the
Ashland Planning Division prior to site work, storage of materials and/or the issuance of an
excavation or building permit. The Verification Permit is for the removal of approved trees and the
installation of the tree protection fencing. The tree protection for the trees to be preserved shall be
installed according to the approved Tree Protection Plan prior to site work or storage of materials.
Tree protection fencing shall be chain link fencing a minimum of six feet tall and installed in
accordance with 18.61.200.B.
18. The setback requirements of 18.88.070 shall be met and identified on the building permit submittals
including but not limited to the required width between buildings as described in 18.88.070.D.
19. That vision clearance areas at the intersections of streets and alleys throughout the project in
accordance with 18.92.070.D shall be delineated on the building permit submittals for lots located at
intersections (i.e. Lots 5, 6,10, II, 16 and 17). Structures, signs and vegetation in excess of two and
one-half feet in height shall not be placed in the vision clearance areas.
20. That all new structures shall meet Solar Setback A in accordance with Chapter 18.70 of the Ashland
Land Use Ordinance. Solar setback calculations shall be submitted with each building permit and
include the required setback with the formula calculations and an elevation or cross-section clearly
identifying the height of the solar producing point from natural grade.
21. Individual lot coverage calculations including all impervious surfaces shall be submitted with the
building permits and shall be in accordance with the approved maximum lot coverage calculations
(sheet P-2, Lot Coverage). Pervious driveway and parking areas shall be counted as impervious
surfaces for the purpose oflot coverage calculations.
22. That all homes shall qualify in the Ashland Earth Advantage program in accordance with
18.88.040.B.3.a. The applicant shall meet with the Ashland Conservation Division regarding
eligible site activities prior to issuance of an excavation permit. The required Earth Advantage
documentation shall be submitted with each building permit application.
23. Fence heights within side and rear yard areas adjoining a public right-of-way or open space shall not
exceed four feet in height.
247 Otis Street: Final Plan
PA #2007-00455
Page 10
Ashland City Council Approval
Signature authorized and approved by the full Council this ~ day of October, 2007
Date I 0 - 3 - \} 1--
247 Otis Street: Final Plan
Page 11
PA #2007-00455
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BEFORE THE CITY COUNCIL """-.--...:=-=-..;
CITY OF ASHLAND, JACKSON COUNTY, OREGON
January 2, 2007
In the Matter of an Appeal of Planning Action 2006-00078,
Request for an Outline Plan approval under the Performance
Standards Option Chapter 18.88 for an 18-unit single-family
residential subdivision for the property located at 247 Otis St.
Also an Exception to the Street Standards is requested to allow
curbside sidewalk in sections of the Otis and Randy Street
frontages to preserve trees, wetlands and the existing residence,
said proj ect being situated on real property locatcd at 247 Otis
Street, within the City of Ashland, Jackson County, Orcgon,
Applicant: Sage Development LLC.
)
)
)
) FINDINGS OF FACT
) CONCLUSIONS OF LAW
) AND ORDER
)
)
)
I. NATURE OF PROCEEDINGS
This matter comes before the City Council for thc City of Ashland for a de novo appeal hearing.
The appeal is from an August 22,2006 decision of the City of Ashland Planning Commission
approving inter alia a request for an outlinc plan approval and exception to street standards on
the subject property located at 247 Otis Street.
A mandatory pre-application conference was held on October 26, 2005, The application for
outline plan approval and exception to street standards was filed by the applicant with the
Planning Department on January 13,2006, The application was deemed incomplete on February
6, 2006. Additional materials were submitted by the applicant and the application was deemed
completed on February 16, 2006, The applicant requested City grant "Outline Plan" approval for
an 18-unit single-family residential subdivision under City's "Performancc Standards Options."
The relevant criteria are found in City's "Ashland Land Use Ordinance" ("ALUO"), Chapter
18.88.
Notification of the public hearing before the Planning Commission on March 14,2006, was
mailed, pursuant to Chapter 18, Ashland Land Use Ordinance to area property owners and
affected public agencies. Notice ofthe March 14,2006, appeal hcaring was also published in the
Ashland Daily Tidings. On March 14,2006, the Planning Commission conducted a public
hearing and considered the oral and written testimony presented, the staffreport and the record
as a whole. The application was continued thru the public hearing process before the Planning
Commission on June 13,2006, June 27, 2006, and July 11,2006. During the public hearings
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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before City's Planning Commission, testimony was received and exhibits were presented. On
July 11,2006, after the close of the public hearing process and the close ofthe record, the City's
Planning Commission deliberated and approved the application, subject to conditions pertaining
to appropriate development of the Property. On August 22, 2006, the Findings, Conclusions, and
Orders of City's Planning Commission were duly signed by the Chairperson of City's Planning
Commission. The Planning Commission's findings are attached hereto as Exhibit "A" and are
specifically incorporated herein and made a part hereof by this reference. (In the event of conflict
between the Planning Commission findings and Council findings, Council findings control).
On September 8, 2006, Appellants (opponents of the project) filed an appeal to the City Council
under ALUO 18.108.110, thereby appealing the Findings, Conclusions, and Orders of City's
Planning Commission. The Applicant also appealed. (For consistency in this document,
"appellants" will only refer to the opponents, not the applicant.) The stated reason for the
appeal included alleged procedural errors before the Planning Commission, as well as allegations
that because water naturally entered the pool it was an existing and natural feature which
required identification and inclusion in open space.
Notification of the public hearing before the City Council was mailed on September 27, 2006,
pursuant to ALUO to area property owners and affected public agencies. Notice ofthe appeal
hearing was also published in the Ashland Daily Tidings on October 4, 2006. On October 17,
2006, the City Council conducted a public hearing in the City Council chambers; during the
public hearing before the Council, testimony and exhibits were offered and received, in addition
to the exhibits and documents reflected in the record before Council. On October 17, 2006, after
the opponents had completed their testimony, the hearing was continued to November 7, 2006.
The November 7, 2006, continued hearing also started with the opponents. The Council
completed the public hearing on November 7,2006; however, at the request of opponents, the
Council left the record open for seven days, until November IS, 2006. Materials were submitted
by opponents while the record was open. The record was then closed. Final written argument
was submitted by the applicant on December 20, 2006. Deliberations were held at a public
meeting on December 5, 2006. The Council deliberated and approved the application in file
2006-00078, with conditions. The Council's action denied the appeal and generally upheld the
Findings, Conclusions, and Orders of the Planning Commission, with some modifications as set
forth below. Based upon the evidence in the record, the Council 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 # 2006-00078 is real property located within the City of
Ashland ("City"), and described in the County Tax Assessor's maps as 39-1E-04BC, Tax Lot
400 (the "Property"). The street address of the Property is 247 Otis Street, Ashland, Oregon,
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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97520.
3) The zoning of the Property is "R-I-5-P" (single family residential).
4) The applicant in Planning Action # 2006-00078 is Sage Development, LLC
("Applicant).
III. FINDINGS APPLYING APPLICABLE CODE CRITERIA
I) The Council finds and determines that the relevant approval criteria are found in or
referenced in ALUO Chapter 18.88, including but not limited to Outline Plan Approval criteria
and Exception to Street Standards criteria.
2) 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.
3) The Council finds and determines that this proposal to develop an 18-unit single-family
residential subdivision meets all applicable criteria for an Outline Plan approval described or
referenced in the ALUO Chapter 18.88, entitled "Performance Standards Options," and that the
proposed use of a curbside sidewalk for sections of the Otis and Randy street frontages to preserve
mature trees, wetlands and the existing residence at 247 Otis Street meets all applicable criteria for
an Exception to the Street Standards in Chapter 18.88. This finding is supported by the detailed
findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically
incorporated herein by this reference, as well as by competent substantial evidence in the whole
record.
4) Criterion: [ALUO 18.88.030.A.4.a.] ... That the development meets all applicable
ordinance requirements of the City of Ashland. The Council finds and determines that
this criterion is a general reference to all the mandatory requirements for outline plan
approval identified herein and other applicable criterion in the Ashland Land Use
Ordinance. The Council finds that the development meets all applicable ordinance
requirements of the City of Ashland. Sheet S-I date stamped May 19, 2006, delineates the
proposed building envelopes, setbacks, solar setbacks and driveway locations. The
setbacks on the perimeter of the subdivision and for the front yards are required to meet
the standard setback requirements of the Single-Family Residential zoning district, and the
proposal meets this requirement. The solar setbacks are addressed as required, but the
final determination is made at the building permit submittal. Finally, the driveway aprons
are separated by 24 feet as required in the street standards. The proposed subdivision
meets the on-site parking ordinance requirements. In addition to the two off-street parking
spaces that are required for each unit, one on-street space is required for each unit. There
are parking spaces available on the new street as well as the Randy and Otis street
frontages, and the on-street parking requirement is easily satisfied with over 60 on-street
spaces identified in the application submittals. Based on the detailed findings set forth
herein, the detailed fmdings of the Ashland Planning Commission, specifically incorporated
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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herein by this reference, as well as by competent substantial evidence in the whole record, the
Council finds and determines that this criterion is met.
5) Criterion: [ALUO 18.88.030.AA.b.] ... That adequate key City facilities can be
provided including water, sewer, pavcd access to and through the development,
electricity, urban storm drainage, police and fire protection and adequate
transportation; and that the development will not cause a City facility to operate
beyond capacity.
This criterion concerns the adequacy of key facilities relative to the impact of the proposed
development. The requirement is not necessarily that the facilities are currently in place, but that
they can be provided. The Council finds that adequate key City facilities can be provided to
serve the project including water, sewer, paved access to and through the development,
electricity, urban storm drainage, police and fire protection and adequate transportation; and that
the development will not cause a City facility to operate beyond capacity. The record reflects
that adequate facilities are available as the project is located in an area that is already developed
with sewer and other utility improvements. Water, sanitary sewer, storm sewer and electric
services are availablc from Otis Street and will conncct through the site to the existing system in
Randy Street. Pavcd access is provided by Randy and Otis streets, as well as by the proposed
new street running through the site. It is feasible to construct the internal street improvements.
[R-164] Primary access to the neighborhood is by way of North Laurel Street which is classified
as an Avenue (major collector). Randy and Otis streets, as well as the new street in the
subdivision, are classified as Neighborhood Streets. A Traffic Impact Study was prepared for the
project and projects that the intersections surrounding the site involving Randy, Otis, Willow,
Drager and North Laurel streets will continue to operate at acceptable levels with build out of the
proposed project. [R-245][R-370]
Also, as regards adequate transportation facilities, the primary pedestrian attractors in the
neighborhood are Helman School, the dog park and the Bear Creek Greenway. Sidewalks are in
place on the south side of Randy Street from the east side of Laurel Street to Helman Street.
Helman School is located at Randy St. and Helman Street, and the dog park and greenway are at
the northern end of Helman Street. The proposed application will install sidewalks on Randy
Street from the western boundary of the subdivision to the intersection of Randy Street and Laurel
Street. In addition, a pedestrian easement is provided on Lot 18 connecting the new street to
Randy Street. This multi-use path will provide a direct route for pedestrians and bicyclists from the
interior of the subdivision to Randy Street. The Council concurs with the Planning Commission
that the most likely route that residents of the proposed subdivision would take to Helman School
and further north to the dog park and greenway would be this direct route through Lot 18 and the
northeastern open space to the new sidewalk on Randy Street. Pedestrians would then cross at the
intersection of Randy Street and Laurel Street to the existing sidewalk on the south side of Randy
that links to Helman School and Helman Street. New public sidewalks will also be installed on the
Otis Street frontage, and on both sides of the proposed new street running through the subdivision.
The Council further finds and determines that the m'\ior mcans of vehicular access to this
subdivision is from Randy and Otis streets. Randy and Otis will be fully improved to City
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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standards with the installation of sidewalks, accordingly, ALVO 18.80.020(B)(7) is also satisfied.
Contrary to appellants assertion that all streets must be improved, the Code expressly requires
only major access streets be improved to City standard. Based on the detailed findings set forth
herein, the detailed findings of the Ashland Planning Commission, specifically incorporated herein
by this reference, as well as by competent substantial evidence in the whole record, the Council
finds and determines that this criterion is met, or can be met with the imposition of conditions. The
above is subject to condition of approval # 36 below.
6) Criterion: [ALVO 18.88.030.AA.c.] ... That the existing and natural features of
the land; such as wetlands, floodplain corridors, ponds, large trees, rock
outcroppings, etc., have been identified in the plan of development and significant
features have been included in the open space, common areas, and unbuildable areas.
The Council finds and determines that ALVO 18.88.030.A.4.c. requires the identification of
features of the land that are both existing and natural and that entirely human-made features are
not encompassed by this criterion. Nevertheless, the alteration of existing and natural features of
the land, including the addition of human-made features does not disqualify such natural features
from protection if such features remain significant. More importantly, the Council finds and
determines that ALVO 18.88.030.A.4.c. requires the preservation of significant existing and
natural features of the land. F catures are "significant" if they are important and meaningful
ecological resources. To the extent opponents argue that human-made features of the land fall
within the protection ofthis criterion (under the term 'existing') that interpretation of the Code is
expressly rejected. Features must be both existing and natural. The statutory interpretation rule
of ejustem generis supports this interpretation of features as being those consistent with the list.
The ejustem generis rule limits the general words "such as" to only those things of the same
general kind or class as those specifically listed. In addition, case law (e.g. concerning variance
standards) often interprets the phrase "features of the land" as including only natural features and
not human-made features. Accordingly, the Council finds and determines that all trees,
geothermal water, geothermal springs and wetlands identified on the applicant's Outline Plan are
existing and natural features. The City Council further finds and determines that the following
existing and natural features are significant: All trees not planned for removal and all wetlands
and geothermal water and geothermal springs not planned for alteration and mitigation in
accordance with State of Oregon permits, as shown on the Outline Plan. Specifically, the
property's water source as encompassed and contained with the wellhead is a significant natural
feature. The alteration of the feature by the addition of the wellhead structure does not disqualify
this existing and natural feature from protection as significant. However, the existing and natural
feature within the pool, (spring openings) are not deemed significant and need not be included in
common area. The Council finds and determines, consistent with the Planning Commission
findings, that the water source, the wellhead and associated spring, and to an extent, the water
itself is the significant feature and shall be preserved in common areas. Accordingly, all the
above-identified significant existing and natural features either are contained in common areas as
shown on proposed plan or shall be contained in common areas, open spaces or unbuildable
areas. The Council finds and determines that "unbuildable areas" for purposes of Chapter 18.88
are areas within open space common areas and also not within building envelopes for permitted
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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construction in such open space common areas.
As a condition of approval, the applicant shall submit a revised site plan which clearly delineates
and shows the significant existing and natural features including but not limited to the wellhead,
and tree no. 13, in open space areas to be dedicated to the homeowners association. This appears
as condition of approval #35 below. Also, as proposed by the applicant and addressed in
condition of approval 33, the Final Plan application for the proposed subdivision will include the
wellhead and a water feature (as further defined in the conditions) served by the associated
spring from the well in a common area for the subdivision. Additionally, a conservation
easement or deed restriction will be used to protect the wellhead and associated spring in
perpetuity. The maintenance of the open spaces and common areas, and the existing and natural
features to be preserved as described above will be addressed in the covenants, codes and
restrictions for the homeowners association. Based on the detailed findings set forth herein, the
detailed findings of the Ashland Planning Commission, specifically incorporated herein by this
reference, as well as by competent substantial evidence in the whole record, and subject to
conditions of approval, the Council finds and determines that this criterion is met.
7) Criterion: [ALVO l8.88.030.AA.d.] ... Thatthe development of the land will
not prevent land from being developed for the uses shown in the Comprehensive
Plan.
The Council finds and determines that development of the land will not prevent adjacent
land from being developed for the uses shown in the Comprehensive Plan. The subject
parcel as well as the surrounding properties and neighborhood are located in the R-I-5
Single-Family Residential district. The subject property is an oversized parcel in the
middle of a block that has single-family lots adjacent to the eastern and western property
boundaries. The properties directly adj acent to the east and west of the site as well as the
larger neighborhood in the area are developed as single-family homes. Based on the
detailed findings set forth herein, the detailed findings of the Ashland Planning Commission,
specifically incorporated herein by this reference, as well as by competent substantial
evidence in the whole record, the Council finds and determines that this criterion is met.
8) Criterion: [ALUO l8.88.030.AA.e.] ... That there are adequate provisions for
the maintenance of open space and common areas, if required or provided, and that
if developments are done in phases that the early phases have the same or higher
ratio of amenities as proposed in the entire project.
The application materials indicate a homeowners association will be established to provide
for maintenance of the open spaces and common areas, and the protection of existing and
natural features to be preserved. [R-165] Wetland areas are subject to State of Oregon and
Army Corps enhancement requirements which include regular maintenance. Until
turnover of common areas to the Association, the common areas must be maintained by
the owner/developer. Based on thc dctailed findings set forth herein, the detailed findings
of the Ashland Planning Commission, specifically incorporated herein by this reference, as
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -6-
well as by competent substantial evidence in the whole record, and subject to conditions of
approval, the Council fmds and determines that this criterion is met.
9) Criterion: [ALUO 18.88.030.AA.f.] ... That the proposed density meets the base
and bonus density standards established under this Chapter.
The Council finds and determines that the density meets the base density standards
established under the Performance Standards Options for the Single-Family Residential (R-I-
5-P) zone. The property's R-I zoning designation and lot area of 4.34 acres permit a base
density of 19.53 units (4.34 acres @4.5 units/acre = 19.53 units). The application states the
conservation density bonus will be used, which would increase the number of possible units
to 22 (\ 9 .53 units x .15 conservation density bonus = 2. 92 units). Eighteen units are
proposed including 17 new homes and one large lot which will contain the existing home and
indoor pool. Based on the detailed findings set forth herein, the detailed findings of the
Ashland Planning Commission, specifically incorporated herein by this reference, as well as
by competent substantial evidence in the whole record, the Council finds and determines that
this criterion is met.
10) Criterion: [ALUO 18.88.030.AA.g.] ... The development complies with the
Street Standards.
Development is proposed to comply with the street standards as provided in 18.88.020K, except
as provided in the exception to Street Standards preserve existing trees and wetlands. [R-165][R-
167]. The findings of compliance with street standards and exceptions as set forth in the record
at R-167 thru Rl69 are specifically incorporated herein by this reference. Based on the detailed
findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically
incorporated herein by this reference, as well as by competent substantial evidence in the whole
record, the Council finds and determines that this criterion is met. (See also supportive findings set
forth below)
II) Criterion: [ALUO L88.050.F.] An exception to the Street Standards is not subject to
the variance requirements of Section 18.100 and may be granted with respect to Street
Standards in 18.88.050 if all of the following circumstances are found to exist:
A. There is demonstrable difficulty in meeting the specific requirements of this
chapter due to a unique or unusual aspect of the site or proposed use of the
site.
B. The variance will result in equal or superior transportation facilities and
connectivity;
C. The variance is the minimum necessary to alleviate the difficulty; and
D. The variance is consistent with the stated Purpose and Intent of the
Performance Standards Option Chapter.
18.88.010 Purpose and Intent. The purpose and intent of this Chapter is to allow an
option for more flexible design than is permissible under the conventional zoning
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -7-
codes. The design should stress energy efficiency, architectural creativity and
innovation, use the natural features of the landscape to their greatest advantage,
provide a quality of life equal to or greater than that provided in developments built
under the standard zoning codes, be aesthetically pleasing, provide for more
efficient land use, and reduce the impact of development on the natural
environment and neighborhood.
The Council finds and determines that the proposal to use a curbside sidewalk for sections of the
Otis and Randy Street frontages to preserve mature trees, wetlands and the historic home meets
the applicable criteria for an Exception to the Street Standards in Chapter 18.88. On the Otis
Street frontage, the proposal is to curve the sidewalk around three trees using a curbside
sidewalk. On the Randy Street frontage, the proposal is to use a curbside sidewalk along the
length of the frontage to preserve the wetlands adjacent to the street, preserve the historic home
at 247 Otis which is immediately adjacent to the street right-of-way, and to further protect the
large stature trees in the northeastern corner of the property. The installation of the required
sidewalk and parkrow improvement includes a seven-foot wide parkrow between the curb and
the sidewalk. If the parkrow were installed on the Otis Street frontage the 43-inch diameter at
breast height (dbh) Monterrey Cypress, 47-inch dbh Weeping Willow and the 38-inch dbh White
Mulberry (trees 4, 5 and 6 respectively on the Tree Inventory Plan) would need to be removed
because the sidewalk would be located where the trunks of the trees currently are sited. If the
parkrow were installed on the Randy Street frontage, the sidewalk would intrude into the
wetlands in the western portion of the site, would intrude into the wetlands to the west of the
pool house, would require removal of a portion of thc historic house, and would intrude into the
driplines of two Sugar Maples 38-inch and 30-inch dbh (trees 22 and 24 respectively on the Tree
Inventory Plan). These existing natural features (wetlands and trees) are "unique or unusual"
aspects of the site which make compliance with the specific requirements of the street standards
difficult.
In addition, while it is possible to remove the trees and build the sidewalk in the wetlands, the
Commission found and the Council concurs with the finding that preservation of trees and
wetlands is consistent with the purposes of the Performance Standards Option Chapter to reduce
the impact on the natural environment. Accordingly, while the curbside sidewalk is not the
required pedestrian facility under the Ashland Street Standards, the preservation ofthe natural
features must be balanced with providing safe, convenient and attractive walkways. The
curbside sidewalks in the sections of Otis Street and on the Randy Street frontage will also
provide a safe and direct pedestrian connection to the cast ofthe subdivision which is equal to or
superior to that required by the street standards. The sections of proposed curbside sidewalk
have been minimized and a parkrow has been included in areas not impacted by natural features
and the historic home, which addresses the requirement that the variance be the minimum
necessary to address the difficulty. Finally, the sidewalk design is consistent with the purpose
and intent of the Performance Standards Options Chapter 18.88 in that is allowing an option for a
more flexible design for the pedestrian corridor to use the natural features of the landscape to
their greatest advantage. Based on the detailed findings set forth herein, the detailed findings of
the Ashland Planning Commission, specifically incorporated herein by this reference, as well as by
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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competent substantial evidence in the whole record, the Council finds and determines that this
criterion is met.
IV. OTHER ALLEGATIONS BY APPELLANTS
Alleged Conflict of Interest
Appellants (opponents) raise the issue of an actual conflict of interest on the part of Councilor
Amarotico. The Council finds and determines that Councilor Amarotico had only a potential
conflict of interest and accordingly the hearing body was impartial. As a preliminary matter at
the commencement of the October 17, 2006 hearing, Councilor Amarotico properly disclosed a
potential conflict of interest, namely that his brother lives on the opposite side of the street from
the property subject to the current application. Although the full City Council could challenge
the Councilor's declaration pursuant to ALUO Section 18.108.100(B), the Council did not
challenge the Councilor's declaration. During the course of the proceeding legal counsel
explained the conflict was a potential conflict because the effect of the decision could be to the
private pecuniary benefit or detriment ofthe Councilor's relative. In order for this property
ownership to be an actual conflict of interest, the decision would have to be to the private
pecuniary benefit or detriment to the Councilor's brother. It cannot be said that official action
"definitely would" have an effect. It was mentioned that one of the examples used by GSPC of
a potential conflict of interest is ownership of property by a Planning Commissioner adjacent to a
parcel under consideration for a conditional use permit. Accordingly, the Councilor's potential
conflict did not require abstention from participation or voting. Councilor Amarotico
participated in the hearing and in the tentative oral decision. However, the Councilor's term
ended before the adoption of this final written decision.
No challenges by participants were made against Council members orally or in writing prior to
or during the October 17, 2006, hearing. On October 17, 2006, after the opponents had
completed their testimony, the hearing was continued to November 7, 2006. The November 7,
2006, continued hearing also started with the opponents. Prior to opponents testimony, an
opponent shouted that Councilor Amarotico had an actual conflict of interest. After restating the
potential conflict, the Councilor then agreed with the following statement of impartiality:
"I have not prejudged this application and I am not prejudiced or biased by my prior
contacts or involvement; I will make this decision based solely on the application of the
relevant criteria and standards to the facts and evidence in the record ofthis proceeding."
The opponent was directed to address the matter when he was called to speak. He did speak
moments later but did not address the conflict allegation. The Council completed the public
hearing on November 7,2006; however, at the request of opponents, the Council left the record
open for seven days, until November 15,2006. Materials were submitted by opponents while the
record was open; however, again, there was no factual challenge to Councilor Amarotico. At
deliberations, during preliminary matters an opponent indicated on the speaker request form that
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -9-
he wished to address an alleged conflict of interest. He was directed to write the allegations
down on the form and deliver it to the clerk. The Council took a break from the application to
facilitate this writing. The opponent refused to write down any factual challenge, only writing
that he objected to having to write down his challenge. The opponent wanted to orally address
the Council during deliberations. The Council refused, finding the opponent had numerous
opportunities to make a factual challenge and had utterly failed to do so. The Council finds and
determines that every participant is entitled to an impartial decision maker; however allegations
of bias or conflict of interest must be accompanied by factual assertions sufficient to give the
member and the Council the opportunity to address the matter. The Council further finds that
unsupported allegations are irrelevant and prejudicial to the hearing process and to individual
Council members; no participant has the right to disrupt the public hearing, cross examine
Council members, or to participate in deliberations under the guise of a conflict of interest or
bias challenge.
Alleged Procedural Error before the Planning Commission
Appellants (opponents) raise the issue of procedural errors before the Planning Commission.
The Council finds and determines that alleged procedural errors before the Planning Commission
are irrelevant to the Council's de novo consideration of the matter. The Council finds and
determincs that most allegations of Planning Commission error are simply disagreements over
language choices in the Planning Commission findings. These language issues have no real
bearing on compliance with code criterion and are not critical to the City's decision; they are
mere surplusage. Cotter v. City of Portland, 46 Or LUBA 612 (2004). Further, no alleged error
has been shown to so control or taint the Council's decision so as to prejudice the rights of the
parties. Pfahl v. City of Depoe Bay, 16 Or. LUBA 796 (1988).
Alleged "traffic mitigation" errors
Appellants (opponents) assert that the Planning Commission erred in not imposing:
(1) a condition of approval for all access streets to be upgraded to city standards and
(2) a condition of approval requiring the developer to share the expense of street
improvement costs as traffic mitigation costs.
As noted in findings above under ALUO 18.88.030.A.4.b, the appellants disagree with the level
of street improvement exactions imposed on this 18 lot subdivision and in asking for all streets to
be improved request an interpretation of ALUO 18.80.020(B)(7) which ignores the word "major"
The Council declines to interpret the Code to require that all streets be fully improved to City
standard as inconsistent with the language of the code and with constitutional principles
governing the imposition of exactions.
To address the second allegation of error, Applicant and Appellants negotiated imposition of the
following conditions:
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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(l) Council shall establish, on an expedited and timely basis, its new policy regarding the .
appropriate use of LID approval conditions and non-remonstrance agreements or other
options to mitigate subdivision traffic impact.
(2) As part of final plan approval, based on a plan submitted by PD staff and/or applicant, PC
shall require mitigation of traffic impact as an approval condition within guidelines of
council's new traffic mitigation policy.
Appellants (opponents) also submitted an incomplete petition alleging 95% community support
for this consensus position. As regards the alleged popularity of the proposed consensus
conditions, the Council finds and determines that no approval criterion for this outline plan
approval requires popularity of proposed conditions of approval for imposition. Nor is
consensus between the applicant and appellants required for imposition of conditions of
approval. The Council has not delegated quasi-judicial decision making authority to informal
neighbourhood petitioning or negotiated agreements between applicants and appellants. The
Council further finds that proposed conditions of approval requiring the City Council to perform
discretionary legislative acts or policy making are inappropriate in quasi-judicial proceedings.
The Council finds it improper and contrary to public policy for appellants to use quasi-judicial
proceedings to coerce applicants into conditions of approval which have little or no bearing on
the merits ofthe individual application. Conditions of approval must relate to achieving
compliance with code criterion. The ALUO, Section 18.68.150, requires imposition ofa
condition concerning LID nonremonstrance on streets with some traffic impact, (in this case
Laurel Street) and such a condition is imposed in condition 36 below. The Council further finds
that there is no constitutional infirmity or conflict between the LID remonstrance provisions of
ALUO and the LID provisions of Chapter 13 of the Ashland Municipal Code. The provisions
when read together are consistent with the requirements set forth by the Court in Larsson v. City
of Lake Oswego, 26 Or LUBA 515, 522, ajf'd 127 Or App 647, (1994). The Council further
finds that there is no error in the applicant proposing and the Council agreeing to re-review the
impacts of the proposed development to determine compliance with code criterion again at final
plan approval provided such review and imposition of exactions, if any, is consistent with a
constitutionally required individualized determination of the impact of the development as
related to the exaction. This condition is set forth in condition 37.
Alleged improper discussions and alleged right to rebut proposed conditions
Appellants (opponents) object to testimony in the record indicating appellant agreed to anything
other than the consensus language. Further appellants object to the fact legal counsel for the city
spoke to legal counsel for the applicant that conditions of approval imposing exactions
necessarily must be limited by case law applicable to exactions, specifically Dolan. Appellant
asserts he is entitled to review and rebut any proposed condition. The Council finds and
determines that there is no error in legal counsel for the City discussing the project with legal
counsel for the applicant. Legal counsel is not the quasi-judicial decision maker; accordingly
there is no ex parte contact and any alleged attorney bias is irrelevant. Torgeson v. City of Canby,
19 Or LUBA 511 (1990). (alleged city attorney bias irrelevant) The Council finds that there is
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -11-
no impropriety in staff discussions with parties, and further the Council finds and determines that
no indirect ex parte contact - thru staff- has occurred. The Applicant's final written argument
clearly reiterates:
"Allow me to restate our position that any requirement fairly imposed to the
development of Street Improvements will be accepted" (emphasis added)
Clearly the Applicant has not indicated willingness to accept only the appellant's proposed
condition. Finally, parties have no right to rebut the legal advice of staff or legal counsel, or to
participate in deliberations such as the development of proposing findings and conditions to
address the evidence in the record. Linebarger v. City of the Dalles, 24 Or LUBA 91,93
(1992); Dickas v. City of Beaver ton, 92 Or App 168, 172-73,757 P2d 451 (1988). Thornton v. St.
Helens, 31 Or. LUBA 287 (1996). Arlington Heights Homeowners v. City of Portland, 41 Or
LUBA 560, 565 (2001) (opponents have no right to review or rebut proposed findings prior to
their adoption).
Alleged error in findings indicating agreement.
Appellants (opponents) allege it is error to indicate that applicant agrees to a condition of
approval. The Council finds and determines that there is no error if findings indicate whether the
applicant or others agreed to a condition of approval. Findings essentially require applicable
law, relevant material facts, and an analysis of whether the facts as applied to the law
demonstrate compliance or non-compliance. Findings must also be supported with competent
evidence in the record. Certainly findings of agreement as regards compliance or as regards
conditions of approval do not substitute for the required findings analysis. It may be that such
findings (about who agrees to what) will be found to be surplusage but not in all cases. When
an applicant presents plans or materials to the decision maker and agrees to comply with such
plans to overcome non-compliance and obtain approval, it is relevant to the decision and
appropriate findings will indicate that the applicant agreed and is bound by the plans, whether or
not they are incorporated as conditions of approval. Perry v. Yamhill County, 26 Or LUBA 73,
87 (1993), affd 125 Or App 588 (1993),
Alleged improper delegation in condition of approval.
Appellants (opponents) allege it is improper to allow in the condition of approval for the
conservation easement being reviewed and approved by staff and legal counsel as to form. The
Council finds and determines that delegations for technical compliance are entirely appropriate.
See Rhvne v. Multnomah County, 23 Or LUBA 442, 447 (1992) (local government may
condition permit approval to allow for a future technical review so long as the government first
makes all discretionary determinations of compliance during a stage where statutory notice and
hearing requirements are observed). If the conservation easement is granted to the City, a public
hearing is also required by state law.
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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Alleged error as to matters in the record.
Appellant's (opponent's) submission requests that the record include videos of the Planning
Commission meetings where this application or the general issue of development access streets
and LID policy was discussed, including specifically identified dates. No actual videos or tapes
of such meetings were submitted while the record was open nor where they specifically
incorporated into the record by the governing body. The Council finds and determines that these
items are not included in the record according to LUBA rules [OAR 661-01O-0025(l)(b) OAR
661-010-0025(l)(c)] Nash v. City of Medford, 48 OR LUBA 647 (2004) (mere references to a
document, without more, are not sufficient to make the document a part ofthe record). Hillsboro
Neigh. Dev. Comm. V City of Hillsboro, IS Or LUBA 628, 629 (1987).
Alleged procedural error in allowing new facts to come in during staff questioning.
Appellants (opponents) allege error in allowing staff to introduce new facts. The Council finds
and determines that there was no error if during staff questioning while the record was open,
staff presented facts not already in the record. Opponents and appellants were both invited to the
podium after staff spoke to rebut any new facts and the parties took advantage of this
opportunity. In addition, the record was left open pursuant to ORS 197.763(6)(c) to permit any
participant to submit additional testimony, argument, or evidence.
Alleged procedural error in allowing final written argument.
Appellants (opponents) allege crror in allowing final written argument. The Oregon Legislature
provided applicants the right to final written argument after the close of the record in ORS
197.763(6)(e). Appellants claim the right to rebut any argument. As with rebuttal, the party with
the burden of proof goes last. There was no error in permitting the applicant to submit final
written argument consistent with ORS 197 .763(60( e).
Alleged procedural error in asking for 120-day extension
Appellants (opponents) assert Applicant was coerced into an extension of the 120-day rule. The
Applicant has not made such a complaint; appellant would have no standing to file a 120-day
mandamus action. The procedure of asking the applicant if they agree to a continuance or to
leave the record open is simply to take advantage of the language of ORS 197.763(6)(d) which
excludes such delays from the 120-day rule "ifrequested or agreed to by the applicant." The
Council finds and determines that there was no error, and no prejudice to appellants, in asking
the applicant if they consent to leaving the record open.
Applicant's right to include appellants in applicant's presentation
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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Finally, the appellants (opponents) argue that procedural error occurred because the Applicant
wasn't allowed to bring the appellants to the table during her presentation. The applicant is not
asserting this error. Appellants claim also that Applicant did participate with them later, and
assert that Applicant was given an unfair advantage. The order of proceedings is not decided by
appellants but by the presiding officer and the Code. There is no procedural error; even if there
was an error the record was left open for additional testimony argument and evidence.
Appellants took advantage of the additional opportunity. Thc Council finds and determines
there was no procedural error and that no party was prejudiced by the order of proceedings.
v. ORDER
In sum, the City Council concludes that the proposal represented in Planning Action 2006-00078
to develop an I8-unit single-family residential subdivision and to install a curbside sidewalk on
the Otis and Randy street frontages to preserve mature trees, wetlands and the home at 247 Otis
Street is in compliance with all applicable approval criterion.
Accordingly, based on the above Findings of Fact and Conclusions of Law, and based upon the
evidence in the whole record, thc City Council hereby APPROVES Planning Action #2006-
00078, subject to strict compliance with the conditions of approval, set forth herein. Further, if
any onc or more of the conditions below are found to be invalid, for any reason whatsoever, then
Planning Action #2006-00078 is denied. The following are the conditions and they are attached
to the approval:
I) That all proposals of the applicant are conditions of approval unlcss othcrwise
modified here.
2) That all easement for sewer, water, electric and streets shall be indicated on the
Final Plan application as required by the City of Ashland.
3) That a utility plan for the project shall be submitted with the Final Plan
application. The utility plan shall include the location of connections to all public
facilities in and adjacent to the dcvelopmcnt, including the locations of water lines
and meter sizes, fire hydrants, sewer mains and services, manholes and clean-
outs, storm drainage pipes and catch basins. The rerouted sanitary sewer and
storm drain lines that are being relocated to the new street shall be the same size
or larger than the current lines running through the site as required by the Ashland
Engineering Division. Any required private or public utility easements shall be
delineated on the utility plan.
4) That the Tree Protection and Removal Plan shall be revised to coordinate with the
final utility plan, and shall be submitted with the Final Plan application.
5) That the storm drainage plan including the design of all on-site storm water
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page-14-
detention systems and off-site storm drain system improvements shall be
submitted with the Final Plan application. The permanent maintenance of on-site
storm water detention systems must be addressed through the obligations of the
homeowners' association and approved by the Public Works Department and
Building Division.
6) That the applicant shall submit an electric distribution plan with the Final Plan
application including load calculations and locations of all primary and secondary
services including transformers, cabinets, meters and all other necessary
equipment. This plan shall be reviewed and approved by the Electric Department
prior to submission of the Final Plan application. Transformers and cabinets shall
be located in areas least visible from streets, while considering the access needs of
the Electric Department.
7) That the required pedestrian-scaled streetlight shall consist of the City of
Ashland's residential streetlight standard, and shall be included in the utility plan
and engineered construction drawings for the street improvements.
8) The preliminary engineering for proposed street improvements shall be provided
at Final Plan application. Street improvements shall be consistent with City of
Ashland Street Local Street Standards. The sidewalk improvements on Randy
Street may be constructed at the curbside to preserve the wetlands, existing home
and trees. Offsite sidewalk improvements on Randy Street connecting thc site to
Laurel Street shall be included in the preliminary engineering. The preliminary
engineering shall include multi-use path improvements for the off-street path
adjacent to the wetlands and for the off-street path connecting the new street to
and through the northeastern tree open space.
9) That the Final Plan application shall demonstrate that the driveway curb cuts are
spaced at least 24- feet apart as measured between the outside edges of the apron
wings of the driveway approaches in accordance with the Ashland Street
Standards.
10) That the driveway for lot 14 shall be relocated so that it does not cross the front
yard area oflot 13.
11) That the Final Plan application shall delineate vision clearance areas at the
intersections of streets and alleys throughout the project in accordance with
18.n.070.D. Structures, signs and vegetation in excess of two and one-halffeet
in height shall not be placed in the vision clearance areas. Building envelopes
shall be modified accordingly on the Final Plan submittals.
12) Subdivision infrastructure improvements, including but not limited to utilities,
public streets, street trees and irrigation and open space landscaping and irrigation
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page-IS-
shall be installed or a bond posted for the full cost of construction prior to
signature of the final survey plat. If a bond is posted for common area and open
space improvements, the common area and open space improvements including
but not limited to landscaping, irrigation and pathway improvements shall be
installed in accordance with the approved plan prior to the issuance of the ninth
building permit (halfway through the building permits for single-family homes).
The project landscape architect shall inspect the common area and open space
improvements for conformance with the approved plan, and shall submit a final
report on the inspection and items addressed to the Ashland Planning Division.
The applicant shall schedule a final inspection including the project landscape
architect with the Ashland Planning Division of the common areas and open
spaces prior to issuance of the ninth building permit.
13) That the street name shall be reviewed and approved by Ashland Engineering for
compliance with the City's resolution for street naming.
14) That the final wetland delineation and mitigation plan shall be approved by the
necessary state and federal agencies, and the necessary state and federal permits
received prior to the Final Plan application. If the final wetland delineation report
submitted for state and federal review differs significantly from the preliminary
determination (i.e. larger area or additional wetland areas), the Outline Plan shall be
modified prior to an application for Final Plan approval.
IS) That the wetland mitigation plan including a grading and planting plan shall be
submitted with the Final Plan application. That an engineering analysis of the water
flow and potential ponding, and any potential impacts to adjacent properties shall be
submitted with the Final Plan application. The engineering analysis shall address
the potential to meter excess runoff to the storm drain to prevent backup of water in
the wetlands.
16) That the Tree Protection and Removal Plan shall be revised in the Final Plan
application to include lot 18.
17) That the recommendations of the Ashland Tree Commission, with final approval
by the Staff Advisor, shall bc incorporated into the Tree Protection and Removal
Plan.
18) That a Verification Permit in accordance with 18.61.042.B shall be applied for
and approved by the Ashland Planning Division prior to site work, storage of
materials and/or the issuance of an excavation or building permit. The
Verification Permit is for the installation of the tree protection fencing. The tree
protection for the trees to be preserved shall be installed according to the
approved Tree Protection Plan prior to site work or storage of materials. Tree
protection fencing shall be chain link fencing a minimum of six feet tall and
COUNCIL FINDtNGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page-16-
installed in accordance with 18.61.200.B.
19) That a size and species specific landscaping plan for the parkrows and open
spaces shall be provided at the time of the Final Plan application.
20) That street trees, located one per 30 feet of street frontage, shall be installed in the
parkrow along street frontages as part of the subdivision infrastructure
improvements. Street trees shall be chosen from the Recommended Street Tree
List and shall be installed in accordance with the specifications noted in the
Recommended Street Tree List. The street trees shall be irrigated.
21) That the landscape plan at Final Plan application shall attempt to mitigate the loss of
a parkrow in the areas of curbside sidewalk (i.e. adjacent to wetlands on new street,
and on the Randy Street frontage) by providing street trees behind the sidewalk that
will be provide a canopy over the sidewalk and street to improve the pedestrian
environment, provide shade and traffic calming benefits.
22) Fence heights within side and rear yard areas adjoining the off-street pedestrian
paths from and open spaces shall not exceed four feet. Stipulations with regards
to fencing shall be described in the project CC&R's.
23) That a draft copy of the CC&R' s for the homeowners association shall be
provided at the time of Final Plan application. Lot 18 shall be included in the
homeowners association and subject to all subdivision requirements including the
Tree Protection Plan and Wetlands Mitigation Plan. (Lot 18 is expressly found
not to be an existing legal lot and is therefore part of the subdivision). CC&R's
shall describe responsibility for the maintenance of all common area and open
space improvements, parkrows and street trees. CC&R's shall describe a system
for governance of the use of the wellhead and associated spring by the subdivision
residents. CC&R's shall note that any deviation from the Tree Protection Plan
and Wetlands Mitigation Plan must receive written approval from the City of
Ashland Planning Department.
24) That existing building greater than 500 square feet proposed for removal shall
require approval of a Demolition Permit prior to moving or demolition.
25) That the Final Plan application shall include a lot coverage calculations in square
footage and percentage for each lot. Open space area less the impervious common
improvements (i.e. streets and sidewalks) and less lot 18 shall be distributed evenly
across the remaining 17 residential lots.
26) The setback requirements of 18.88.070 shall be met and identified on the building
permit submittals including but not limited to the required width between buildings
as described in 18.88.070.0.
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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27) That the setbacks on lot 14 shall be revised so that the front yard is opposite of the
back yard in accordance with 18.08.430 in the Final Plan application. The rear yard
for lot 14 shall be located as shown adjacent to the east property line to mirror the
yard pattern of the existing homes to the east.
28) That all new structures shall meet Solar Setback A in accordance with Chapter
18.70 of the Ashland Land Use Ordinance. Solar setback calculations shall be
submitted with each building permit and include the required setback with the
formula calculations and an elevation or cross-section clearly identifying the
height of the solar producing point from natural grade.
29) Individual lot coverage calculations including all impervious surfaces shall be
submitted with the building permits. Impervious driveway and parking areas shall
be counted as pervious surfaces for the purpose of lot coverage calculations.
30) That all homes shall qualify in the Ashland Earth Advantage program in
accordance with 18.88.040.B.3.a. The applicant shall meet with the Ashland
Conservation Division regarding eligible site activities prior to issuance of an
excavation permit. The required Earth Advantage documentation shall be
submitted with each building permit application.
31) That fencing shall not be installed around the perimeter of the preserved wetland
in the western open space.
32) That if lot 18, the lot containing the existing residence and indoor pool (Helman
Baths), is partitioned or divided in the future, the application shall be required to
be processed as an amendment to the subdivision. In accordance with this
subdivision approval, any new lots created from lot 18 shall be required to
construct conservation housing to meet density bonus requirements in accordance
with 18.88.040.B.3.a and shall participate in the homeowners' association.
33) The Property includes a wellhead and associated spring adjacent to Lots 13 and
14 on the outline plan, and serving the existing pool on Lot 18. In connection
with final plan approval, the wellhead and land immediately surrounding it shall
be dedicated as common area for the benefit of the subdivision's homeowners'
association. Prior to final plan approval, the Applicant shall submit a form of
conservation casement or deed restriction for review and approval of the Ashland
Legal and Planning Departments designed to protect, in perpetuity, the wellhead
as an existing and the associated spring as a natural feature of the property. The
beneficiary of the conservation casement or deed restriction shall be the
subdivision's homeowners' association, which shall be entitled to enforce its
terms. The terms shall include provisions allowing the homeowners' association
to enhance the well in the future, subject to compliance with all laws then in
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -18-
effect. The terms shall also prevent the homeowners' association or any future
owner from capping, degrading or destroying the wellhead. Applicant may record
an irrevocable license and concurrent easement for the benefit of Lot 18, for the
purpose of allowing the owner of Lot 18 and her successors in interest to continue
receiving water flow from the well in an amount roughly consistent with the
current amount of water used to serve the existing pool on Lot 18. Under the
terms of the irrevocable license, easement, and conservation easement or deed
restriction, the homeowners' association will be permitted to make all lawful use
ofthe well located in the common area for the benefit of the subdivision's
residents, provided such use does not unreasonably interfere with the concurrent
right of Lot 18 to continue to receive water from the well in an amount similar to
the amount currently utilized to serve the existing pool located on Lot 18. In
connection with final plan approval, the applicant shall design and install a water
feature in the common area where the wellhead is located, to be served by water
from the well, for the benefit of the members ofthe subdivision's homeowners'
association. That an instrument such as a maintenance agreement shall be
included with the easement or deed restriction which would address responsibility
of maintenance of the wellhead. That if Lot 18 is partitioned or divided in the
future, the first right of access to use the spring shall be offered to the
homeowners' association. As regards the water feature, applicant shall construct a
water feature that (I) highlights and presents the geothermal water as a daylighted
part of the open space, (not inside a building), (2) honors the historical character
of the geothermal springs area, and (3) directs the features's geothermal water
into the west side geothermal wetland. This condition, agreed to by the applicant,
is subject to State of Oregon wetland permitting as regards numbered item (3).
34) That the Final Plan application include a determination of whether a permit is
needed from the Oregon Water Resources Department (OWRD) to use the spring
accessed by the wellhead which feeds the pool on Lot 18. If a permit is required,
evidence of permit approval and issuance shall be submitted to the Planning
Division prior to recording some form of conservation easement or deed
restriction for the spring and wellhead, and prior to signature of the final survey
plat.
35) The applicant shall submit a revised site plan which clearly delineates and shows
the significant existing and natural features including but not limited to the
wellhead and associated spring and tree no. 13, in open space areas to be
dedicated to the homeowners association.
36) Applicant shall execute a document as consistent with ALUO 18.68.150 agreeing
to participate in their fair share costs associated with a future Local Improvement
District for improvements to Laurel Street and to not remonstrate against such
District. Nothing in this condition is intended to prohibit an owner/developer,
their successors or assigns from exercising their rights to freedom of speech and
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -19-
expression by orally objecting or participating in the LID hearing or to take
advantage of any protection afforded any party by City ordinances and
resolutions.
37) Applicant shall mitigate traffic impact of this 18 lot subdivision consistent with a
constitutionally required individualized determination of the impact ofthis
development in relation to any requested off-site improvements, in accordance
with Ashland City Code, as may be in place at the time of application for final
plan approval. Applicant has indicated acceptance of any requirement fairly
imposed [related] to the development of street improvements.
Ashland City Council Approval
<<-w~\~-
Ma or John W. Morris
Signature authorized and approved by the full Council this .d.- day of January, 2007
Date: Illt/07
(
COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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