HomeMy WebLinkAbout2008-171 Findings - Measure 49 Claim
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
September 2, 2008
Applicant: George Harshman, Virginia Wilt, Wilt Family
and Tri-W Group L.P.
In the Matter of Tentative Decision on a Ballot Measure 49 Claim, )
pursuant to Section 9 of the Act, requesting the right to permit, )
without limitation, the creation, division, development, and/or ) FINDINGS OF FACT
subsequent sale of 10 (two acre) legal lots with a single family ) CONCLUSIONS OF LAW
dwelling on each lot, located on real property within the city limits) AND ORDER
of the City of Ashland, Jackson County, Oregon more particularly)
described as Tax Map/Lot T39SRl E, Section 8DB, Lot 200, )
a/k/a 766 Strawberry Lane, consisting of approximately 27.25 )
acres of land. )
)
)
)
I. NATURE OF PROCEEDINGS
This matter comes before the City Council for the City of Ashland for a tentative decision on a
Ballot Measure 49 claim, under Section 9 and 10 of the Act. The applicants will be advised of
the tentative decision and given 15 calendar days to submit evidence and arguments in response
to this tentative decision. Thereafter the City shall issue a final determination on or before
November 20, 2008.
On November 29,2006 a Measure 37 claim was submitted by Attorney William Cox on behalf
of "George and Patsy Harshman". On February 16,2007 City Administrator Martha Bennett
mailed a letter to Attorney Cox indicating the application was incomplete, including failure to
include all owners, (noting the omission of an application from "Tri- W Group" listed as owner of
50% undivided interest of the parcel). Mr. Cox responded on February 29, 2007 by submitting
evidence that the City Planning Department signed for receipt of the Tri- W Group application on
November 29,2006. The City received another copy of the Tri-W claim on March 12,2007 as
well as materials to address the completeness of the Harshman claim. On July 5, 2007 City
Administrator Martha Bennett sent a letter to Attorney Cox notifying him of the extension of
time granted by the Oregon Legislature for consideration of Measure 37 claims; the letter also
notified Attorney Cox that the application for Tri- W Group was also incomplete. Oregon Voters
enacted Ballot Measure 49 in November 2007, effective December 2007. The Act essentially
abolished Measure 37; however, it provided a process for applicants with pending Measure 37
claims to determine if they had rights under Measure 49.
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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Section 10(2) of the Act provides that if a City has not made a decision on a Measure 37 claim
before December 2007, the City must notify the applicant within 90 days after the effective date
of Measure 49 that the applicant is entitled to seek relief under Section 9. On February 27,2008,
the City Administrator notified Attorney Cox of the right to apply for relief under Measure 49
within 120 days; the notice complied with the statutory notice requirements and included a claim
form developed expressly for the purpose of directing the claimant to submit necessary
information for the Section 9 claim. The notice also reserved the right to question the eligibility
of the claimants (due to incomplete M3 7 applications). Attorney Cox filed a claim for "George
Harshman, Virginia Wilt, Wilt Family and Tri- W Group" on May 20, 2008. The City claim form
developed for this single City M49 claim was completed only by stating "see attached" in
numerous places referencing the M37 claim materials attached. No qualifying appraisal
complying with Section 9, subsection 6 of the Act was submitted with the claim. The
Attorney's cover letter indicates "claimants have been unable to retain a certified appraiser ..."
As discussed more fully below, failure to follow the guidance of the claim form to submit the
required information has resulted in fatal errors in the application. Specifically, Section 10 (3) of
the Act provides that failure to file the notice and required information with the public entity
within 120 days after the date the public entity mails the notice, essentially disqualifies the claim
and the claimant is not entitled to relief under Section 9 of Measure 49.
Pursuant to Section 10(4) of the Act the City has until approximately September 20,2008 to
make a tentative decision. (Note: A tentative decision is scheduled for September 2, 2008 but
can be postponed to September 16,2008 ifnecessary.) The claimants and DLCD will be
provided notice of the tentative decision and will have 15 calendar days to submit written
evidence or arguments in response to the tentative decision. The City must make a final
determination on or before November 20,2008.
Based upon the evidence in the Record, said Record being specifically incorporated herein by
this reference, the Council makes the following. findings of fact and conclusions of law:
II. FINDINGS OF FACT
1) The Nature of Proceedings findings set forth above are true and correct and are
incorporated herein by this reference.
2) The applicant [claimant] is listed on the application as George Harshman, Virginia Wilt,
Wilt Family, and Tri-W Group LP. Claimants are represented by Attorney William C. Cox 0244
S.W. California Street, Portland, Oregon 97219 [phone (503) 246-5499].
3) The subject of this Measure 49 claim is real property located within the City of Ashland
("City"), and described in Jackson County Tax Assessor's maps as Tax Map/Lot T39SRIE,
Section 8DB, Lot 200, consisting of approximately 27.25 acres of land. (hereinafter "Property").
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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4) The same claimants apparently own or owned adjacent property Tax Map/Lot T39SRIE,
Section 8DB, Lot 600, outside the City of Ashland. This adjacent parcel was the subject of a
May 3,2007 Jackson County Order # 280-07, regarding a Measure 37 claim.
5) . The property is vacant and is accessed off the end of Hitt Road, which at this point is an
undeveloped right-of-way.
6) The property is entirely located within the City limits of the City of Ashland and is
within the City of Ashland Urban Growth Boundary.
7) The property has an Ashland Comprehensive Plan map designation of Woodland
Residential. The property is also zoned WR - Woodland Residential.
8) Woodland Residential Zoning (W-R), adopted in 1982, provides for the following:
18.14 W-R Woodland Residential District
18.14.010 Purpose
The purpose of the W-R district is to stabilize and protect the steep and forested areas within the City. Application of
the zone will ensure that the forest, environmental erosion control and scenic values of these areas are protected from
incompatible development which could result in a degradation of their values.
18.14.020 Permitted uses
The following uses and their accessory uses are permitted outright~
A. Single family dwellings. .
B. Agriculture and farm uses, except animal sales yards and feed yards, hog farms and any animal fed garbage.
C. Parks and recreation facilities.
D. Home occupations.
18.14.030 Conditional Uses
The following uses and their accessory uses are permitted when authorized in accordance with Chapter 18.104,
Conditional Use Permits:
A. Churches and similar religious institutions.
B. Public and public utility buildings, structures and uses, but not induding corporation, storage or repair yards,
warehouses and similar uses.
C. Private recreational uses and facilities, provided that the forested character of the area is not disturbed.
D. Public and quasi-public halls, lodges and clubs.
E. Schools, both public and private.
F. Daycare centers.
G. Homes for the elderly and nursing homes.
H. Disc antenna for commercial use.
I. Nonconforming use or structure changes required by Section 18.68.090.
J. Temporary uses.
K. Wireless Communication Facilities when attached to existing structures and authorized pursuant to Section
18.72.180.
18.14.040 General Regulations
A. Minimum lot area. The minimum lot area in the W -R zone is determined by the chart below:
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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Slope
Less than 40%
40 to 50%
50 to 60%
Over 60%
Outside UGB
Min. Lot Size
2.0
2.5
5.0
10.0
20.0
DU/Acre
.5
.4
.2
.1
.05
B. Maximum lot coverage. The maximum lot coverage shall be seven (7%) percent.
C. Minimum lot width. All lots shall be at least one hundred (100) feet in width.
D. Minimum lot depth. All lots shall be at least one hundred-fifty (150) feet in depth.
E. Standard yard requirements.
1. Minimum front yard - There shall be a front yard of at least twenty (20) feet.
2. Minimum side yard - There shall be a minimum side yard of six (6) feet, except ten (10) feet along a
side yard facing the street on a comer lot.
3. Minimum rear yard - There shall be a minimum rear yard of ten (10) feet 'plus ten (10) feet for each
story in excess of one (1) story.
4. In addition, the setbacks must comply with Section 18.70 of this Title which provides for solar access.
F. Maximum building height. No structure shall be over thirty-five (35) feet or two and one-half (2 1/2) stories
in height, whichever is less.
G. Aggregate removal prohibited. There shall be no mining of granite for aggregate, quarry rock or other open
pit mining in this zone.
H. Limits on density transfer. All developments, with the exception of partitioning, must be developed under
the Performance Standards, Chapter 18.88. No more than twenty-five (25%) percent of the density allowed
in a Woodland Residential zone may be transferred to a higher density zone in a Performance Standard
development.
9) The vast majority of the property contains slopes over 35%, these areas are denominated
as "severe constraints" on the maps in the Record (see Attachments B & C). Only a small
portion of the total site contains 0%-15% slopes and 16% -25% slopes.
10) The Physical and Environmental Constraints Chapter, AMC 18.62 (adopted May 19,
1987, and replaced with Ordinance 2528 on July 7, 1989) established regulations by land
classification. Hillside Lands, identified on the Physical Constraints Overlay map are those
areas which have a slope of 25 percent or greater, are subject to additional public safety
regulations. Such lands are identified as subject to damage from erosion and slope failure.
The AMC 18.62.080 Hillside regulations are attached hereto and incorporated herein as
Attachment A.
III. FINDINGS APPLYING APPLICABLE CRITERIA
11) The Council finds and determines that the relevant approval criteria are found in or
referenced in Section 9 and 10 of Measure 49. Also implicated in this decision are ALUO
criteria for W-R Zoning and Physical and Environmental Constraints Permit Requirements,
specifically Hillside Lands.
12) The Council finds that it has received all information necessary to make a tentative decision.
13) The Council finds and determines that this proposal to develop 10 unit single-family
residential subdivision pursuant to Section 9 and 10 of Measure 49, does not meet all applicable
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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criteria for approval of a Measure 49 claim. This finding is supported by the detailed findings set
forth herein as well as by competent substantial evidence in the whole Record.
14) Criterion: [Section 9(1)]
(1) A claimant thatfiled a claim under ORS 197.352 on or before the date of
adjournment sine die of the 2007 regular session of the Seventy-Fourth Legislative
Assembly for property located, in whole or in part, within an urban growth
boundary may establish one to 10 single-family dwellings on the portion of the
property located within the urban growth boundary.
Adjournment sine die of the 2007 Oregon legislature occurred on June 28,2007. A Measure 37
claim was filed with the Community Development Department on November 29,2006 for
George and Patsy Harshman. (The claim should have been directed to the City Administrator
per City Ordinance). The application was deemed incomplete on February 16, 2007 when City
Administrator Martha Bennett mailed a letter to Attorney Cox, notifying him, among other
things, of a failure to include all owners, (noting the omission of an application from Tri- W
Group owner of 50% of the parcel). Mr. Cox responded by submitting evidence that the City
Planning Department signed for receipt of the Tri-W Group application on November 29,2006.
The City received a copy of the Tri-W claim on March 12,2007 with additional information on
the Harshman claim. This claim application was also deemed incomplete by the City
Administrator on July 5,2007.
The City of Ashland Measure 37 claims procedure ordinance, then in effect, provided as follows:
B. Demands for just compensation shall be submitted to the City Administrator. No demand for
just compensation shall be deemed submitted until all materials required by this section have been
provided to the City Administrator by the current owner. A notice of submission shall be sent to
the current owner at the time the City Administrator determines the current owner's demand for
just compensation has been deemed submitted.
C. Notwithstanding a claimant's failure to provide all of the information and/or the application
processing fee required by subsection (A) of this section, the city may review and act on a claim.
The claimant wrote Nt A next to "deemed complete" on the M49 application. The code language
above indicates that a claim is not deemed submitted until all materials are provided. The City
Administrator requested in her February 16, 2007 letter to Attorney Cox if the applicant intended
to supplement the submittal or whether the applicant intended to have the submittal deemed
complete (i.e. no intention to supplement). In the subsequent March submittal by Attorney Cox,
the Attorney submitted missing material (including the Tri-W materials) and it is apparent that
the Attorney contemplated the claim would be processed, as is, unless the City would notify the
attorney if additional materials were required. The Administrator did not make a determination
on the resubmission until after the adjournment of the legislative session. Council finds and
determines that a claim by both Harshman and Tri- W was filed with the City prior to 2007
adjournment, despite the fact that the applications were not deemed submitted under the City
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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ordinance because they were found to be incomplete. Under Measure 37, the applicant arguably
had the right to proceed with the claim in Court despite the local determination of whether the
materials submitted were sufficient to process the claim.
The actual timing of the second application (Tri-W Group) is also important. Section 10(5) of
the Act states that if a Measure 37 claim is submitted after December 4, 2006, it must include a
denial of a final land use decision or it is ineligible for relief under Section 9 of the Act. The
Council finds and determines that the proof of mailing and receipt by the Planning Department
on November 29,2006 is enough to satisfy the requirement to submit the claim prior to
December 4,2006. The City has no evidence to refute the Attorney's claim and postal receipt
that the materials were signed for at the Planning Department and later misplaced. Accordingly,
this first threshold requirement (eligibility to file) is met. Note: The omission of Mrs.
Harshman on the paperwork for the M49 claim is not seen as significant.
15) Criterion: [Section 9(2)]
(2) The number of single-family dwellings that may be established on the portion of
the property located within the urban growth boundary under this section may not
exceed the lesser of:
(a) The number ... described in the claim filed with ... a city...;
The original claim was for $3,750,000 to $8,902,000 based on development of:
"as many lots as could be serviced by on site sewer. with community water each lot
could have been 20,000 square feet."
The property is 27.25 acres. Accordingly, the number of single family residential lots in
the claim far exceeds 10.
(b) 10, .... ; or
As noted below, the claim is amended to claim ten (10) single family lots and units.
(c) The number of single family dwelling that total value of which represents just
compensation for the reduction in fair market value caused by the enactment
of one or more land use regulations that were the basis for the claim, set forth in
subsection (6) of this section.
NOTE: Section 9, Subsection 6 of the Act provides:
6. The reduction in the fair market value of the property caused by the enactment
of one or more land use regulations that were the basis of the claim is equal to the
decrease, if any, in the fair market value of the property from the date that is one
year hefore the enactment of the land use regulation to the date that is one year
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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after the enactment, plus interest. If the claim is based on the enactment of more
than one land use regulation enacted on different dates, the reduction in the fair
market value of th(! property caused by each regulation shall be determined
separately and the values added together to calculate the total reduction in fair
market value. The reduction in fair market value shall be adjusted by any ad
valorem property taxes not paid as a result of any special assessment of the
property under ORS 308A.050 to 308.A.128, 321.257 to 321.390, 321. 700 to
321. 754 or 321.805 to 321.855, plus interest, offset by any severance taxes paid by
the claimant and by any recapture of potential additional tax liability that the
claimant has paid or will pay for the property if the property is disqualified from
special assessment under ORS 308A. 703. Interest shall be computed under this
subsection using the average interest ratefor a one-year United States
Government Treasury Bill on December 31 of each year of the period between the
date the land use regulation was enacted and the date the claim was filed,
compounded annually on January 1 of each year of the period.
The City's M49 application form clearly states:
"Applicant must complete the following and submit supporting documentation concerning
( a) (b) and (c) below and note the lesser of ( a) (b) and (c) here: "
The claimant only wrote "See attached - 10 now requested"
No analysis on the form and no supporting documentation or information concerning the
required analysis under subsection (c) "reduction of fair market value" meeting the standards
established in Section 9, subsection (6) was provided with the application. The Applicant
appears to assume ten (10) single family dwelling lots and units can be applied for under Section
9; however, it is clear that the applicant must demonstrate eligibility of the lesser of: (a) the claim
(b) 10 or (c) the number of units equal to the value of the reduction in fair market value as
calculated by Section 9, Subsection (6) of the Act. Accordingly, as a consequence of the failure
to submit an appraisal under Subsection (6), the Council further finds and determines that
application is fatally flawed and disqualified from relief under Section 9 of Measure 49. As
noted above, Section 10 (3) of the Act provides that failure to file the notice and required
information with the public entity within 120 days after the date the public entity mails the
notice,. precludes relief under Section 9 of Measure 49. As a practical matter, in addition to the
disqualification, this failure makes it impossible for the claimant to demonstrate that ten (10)
lots/units is the appropriate number of lots/units (i.e. the lesser of) to be awarded under section 9
as the reduction in value calculation has not been and cannot be performed.
As discussed more fully below, if the reduction in value calculation had actually been
performed, it is not inconceivable that the reduction in value calculation would result in a
value equal to less than ten units. This is because the majority of the land development
regulations the claimant identifies (e.g. W -R Zoning) are likely "exempt" land
development regulations as they are essentially "restricting or prohibiting activities for the
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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protection of public health and safety" including specifically "landslides" "pollution
control regulations" as well as nuisance regulation - e.g. erosion control).
(3) if the number of single-family dwellings described in ... a claim filed with... a city
... is more than 10, the claimant may amend the claim to reduce the number to no
more than 10 by- filing a notice of the amendment with the information required by
Section 10 of this Act.
The May 20, 2008 filing indicates:
"Claimants elect to amend their Measure 37 claims. Claimants seek relief pursuant to Measure
49, Section 9 and 10. Claimants seek the right to permit, without limitation, the creation,
division, development, and/or subsequent sale of 10 (two acre) legal lots with a single family
dwelling on each lot."
(4) If multiple claims were filed for the same property, the number of single family
dwellings that may be established for purposes of subsection (2)(a) of this section is
The number in the most recent claim filed with... a city... but not more than
lOin any case.
The multiple claims (by different ownership interests) have now been consolidated into
one joint application requesting ten (10) residential lots and units.
16) Criterion: [Section 9(5)]
(5) To qualify for relief provided by this section, the claimant must have filed a
claim for the property with the city or county in which the property is located. In
addition, regardless of whether a waiver was issued by Metro, a city or a county
before the effective date of this 2007 Act, to qualify for relief under this section, the
claimant must establish that:
(a) The claimant is an owner of the property;
Claimants George Harshman and Tri- W Group L.P are the legal owners of the
property as tenants in common.
(b) All owners of the property have consented in writing to the claim;
The Record reflects Attorney William Cox is authorized to file the application on
behalf of all owners.
(c) The property is located, in whole or in part, within an urban growth
boundary;
The property is located entirely within the City of Ashland Urban Growth Boundary.
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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(d) On claimant's acquisition date, the claimant lawfully was permitted to
establish at least the number of dwellings on the property that are authorized
under this section;
The current owners have different acquisition dates, although as members of
different legal entities their involvement in the property can be traced to 1965.
George Harshman formally acquired a 50% undivided interest in the property by
deed in 1979. Tri-W Group L.P. formally acquired an undivided interest in the
property in 1998. While the claimant George Harshman argues for a 1965
acquisition date based on "confirmation" of an undivided 50% interest in the
property in 1970 from then owner Continental Construction Company Inc., this is
not supported by deed records. Similarly, although Virginia Wilt may have been
involved in a corporation acquiring ownership in 1965, the property was owned by a
corporate entity, and was subsequently conveyed, several times. For purposes of
this joint M 49 application the earliest formal date of acquisition by a current owner,
(May 3, 1979 acquisition date of George Harshman) is used. The City Council
expressly rejects the implication by the claimants that it must find a 1965 acquisition
date because Jackson County, in an M 37 Order now voided by Measure 49,
concerning an adjacent parcel owned by the same claimants was found by the
County to have a 1965 acquisition date.
(e) The property is zoned for residential use;
The property is zoned W-R, a residential zone. Single family residential use is a
permitted use in the zone, subject to lot size requirements.
(t) One or more land use regulations orohibit establishing the single-family
dwellings;
Under this criterion, the application only notes, "see M37 claim file."
The City's M49 claim form notes the revised definition of land development regulations, as
follows:
(14) "Land use regulation" means: (a) A statute that establishes a minimum lot or
parcel size; (b) A provision in ORS 227.030 to 227.300,227.350,227.400,
227.450 or 227.500 or in ORS chapter 215 that restricts the residential use of
private real property; (c) A provision of a city comprehensive plan, zoning
ordinance or land division ordinance that restricts the residential use of private
real property zoned for residential use; (d) A provision of a county comprehensive
plan, zoning ordinance or land division ordinance that restricts the residential use
of private real property; (e) A provision of the Oregon Forest Practices Act or an
administrative rule of the State Board of Forestry that regulates a forest practice
and that implements the Oregon Forest Practices Act; (t) ORS 561.191, a
provision ofORS 568.900 to 568.933 or an administrative rule of the State
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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-~~'~'T-'
Department of Agriculture that implements ORS 561.191 or 568.900 to 568.933;
(g) An administrative rule or goal of the Land Conservation and Development
Commission; or (h) A provision of a Metro functional plan that restricts the
residential use of private real property.
(22) "Zoned for residential use" means zoning that has as its primary purpose
single- family residential use
The text of Section 9, Measure 49, calls for identification of "land use regulations" which
"prohibit" establishment of residential dwellings; this prohibition (if pursuant to a non-
exempt regulation) and the associated reduction in value per Section (9)(2)( c) and
subsection( 6) is "compensated" with an award of single family residential lots and units in
an amount which is the lesser of (a) the number set forth in the M37 claim (b) 10 or (c) the
number of units represented by the reduction in value due to non-exempt regulations
prohibiting the residential use. By contrast, the text of Measure 37 more generally
concerned land use regulations that restrict uses permitted on the real property; and the
restriction imposed by the land use regulation has the effect of causing a reduction in the
fair market value of the real property. The standard is different and thus claimant's
reference to "see M37 claim file" is inadequate.
The November 2006 M37 claim itself was extremely generic in regard to identification of
regulations. While the "Woodland Residential District" was specifically mentioned,
otherwise the claim simply referenced the Ashland Community Development Code as well
as "each and every" land development regulation which restricts the use of the claimants
property. The W-R Zoning District does not prohibit residential uses; the District only
restricts residential uses based on an increasing minimum parcel size that corresponds with
increases in property slope. For example, the W-R Zone's general regulations provide:
A. Minimum lot area. The minimum lot area in the W -R zone is determined by the chart below:
Slope
Less than 40%
40 to 50%
50 to 60%
Over 60%
Outside UGB
Min. Lot Size
2.0
2.5
5.0
10.0
20.0
nUl Acre
.5
.4
.2
.1
.05
The subject property would have a minimum lot size of2.0 tol0.0 acres depending upon
the exact determination of slope on the subject 27.25 acres. While the applicant has not
prepared an application, the City staff estimates up to eight (8) units might be permitted
based on zoning alone.
Unlike the W-R District, the Physical and Environmental Constraints Chapter,
specifically the overlay for Hillside Lands, land classification does prohibit residential uses on
severe slopes, with an exemption allowing one residential unit on a lot of record. This overlay is
however, clearly within the exempt regulation definition of 197.352(3) (now renumbered).
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
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(g) The establishment of the single -family dwellings is not permitted by a land
use regulation described in ORS'197.352(3) [i.e. an exempt regulation];
Under this criterion, the application also notes, "see M37 claim file." The
application makes no attempt to address the clarified definition of exempt
regulations under Measure 49, as opposed to Measure 37. The City's M49 claim
form notes the clarification of exempt regulations:
(3) Subsection (1) of this section shall not apply to land use regulations that were
enacted prior to the claimant's acquisition date or to land use regulations:
(a) Restricting or prohibiting activities commonly and historically recognized as
public nuisances under common law;
(b) Restricting or prohibiting activities for the protection of public health and
safety; [(18) "Protection of public health and safety" means a law, rule, ordinance,
order, policy, permit or other governmental authorization that restricts a use of
property in order to reduce the risk or consequence of fire, earthquake, landslide,
flood, storm, pollution, disease, crime or other natural or human disaster or threat
to persons or property including, but not limited to, building and fire codes, health
and sanitation regulations, solid or hazardous waste regulations and pollution
control regulations.]
(c) To the extent the land use regulation is required to comply with federal law; or
[ (6) "Federal law" means: (a) A statute, regulation, order, decree or policy
enacted by a federal entity or by a state entity acting under authority delegated by
the federal government; (b) A requirement contained in a plan or rule enacted by a
compact entity; or (c) A requirement contained in a permit issued by a federal or
state agency pursuant to a federal statute or regulation.]
(d) Restricting or prohibiting the use of a property for the purpose of selling
pornography or performing nude dancing.
The regulations identified above are clearly exempt land development regulations.
The W-R Zone is established as a public safety regulation, specifically the district
recognizes landslides and erosion control are primary purposes of the regulation (to a
lesser degree aesthetics is also implicated). The W-R Zone's purposes statement
states:
The purpose of the W - R district is to stabilize and protect the steep and forested
areas within the City. Application of the zone will ensure that the forest,
environmental erosion control and scenic values of these areas are protected from
incompatible development which could result in a degradation of their values.
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -11-
-----~------.
Similarly, the regulations contained in the Physical and Environmental Constraints
Chapter Overlay, specifically regulations for Hillside Lands (set forth in Attachment
A) are clearly exempt regulations. Damage to adjacent properties by uncontrolled
runoff and erosion concerns a commonly and historically recognized public
nuisance. Similarly, the overlay's regulations to control erosion of property and to
minimize risks or minimize consequences of landslides and wildfires are clearly
contemplated within Measure 49's definition of exempt regulations. Accordingly,
reduction in value calculations - had they been performed, cannot include reduction
based on these exempt regulations.
(h) The land use regulation described in paragraph (t) of this subsection was
enacted after the date the property, or any portion of the property, was
brought into the urban growth boundary;
The property has been part of the City and the urban growth boundary since the
UGB was established. Accordingly, the regulations were enacted after inclusion in
the UGB.
(i) [applicable only to Metro]
(j) If the property is within-a City, the land use regulation that is the basis for
the claim was enacted after the date the property was annexed to the city; and
The property has been part of the City limits for several decades. Accordingly, the
regulations were enacted after inclusion in the City limits.
(k) The enactment of one or more land use regulations, other than land use
reeulations described in ORS 197.352(3), that are the basis for the claim caused
a reduction in the fair market value of the property, as determined under
subsection (6) of this section, that is equal to or greater than the fair market
value of the single family dwellings that may be established on the property
under subsection (2) of this section. (emphasis added)
See findings located elsewhere in this document concerning claimant's failure to
submit a qualifying appraisal, and the exempt status of the identified regulations,
said findings being incorporated herein by this reference.
(6) The reduction in the fair market value of the property caused by the enactment
of one or more land use regulations that were the basis of the claim is equal to the
decrease, if any, in the fair market value of the property from the date that is one
year before the enactment of the land use regulation to the date that is one year after
the enactment, plus interest. If the claim is based on the enactment of more than one
land use regulation enacted on different dates, the reduction in the fair market value
of the property caused by each regulation shall be determined separately and the
values added together to calculate the total reduction in fair market value. The
COUNCIL TENT A TIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -12-
reduction in fair market value shall be adjusted by any ad valorem property taxes
not paid as a result of any special assessment of the property under ORS 308A.050 to
308.A.128, 321.257 to 321.390, 321.700 to 321.754 or 321.805 to 321.855, plus interest,
offsetby any severance taxes paid by the claimant and by any recapture of potential
additional tax liability that the claimant has paid or will pay for the property if the
property is disqualified from special assessment under ORS 308A.703. Interest shall
be computed under this subsection using the average interest rate for a one-year
United States Government Treasury Bill on December 31 of each year of the period
between the date the land use regulation was enacted and the date the claim was filed,
compounded annually on January 1 of each year of the period.
(7) For purposes of subsection (6) of this section, a claimant must provide an
appraisal showing the fair market value of the property one year before the
enactment of the land use regulation that was the basis for the claim and the fair
market value of the property one year after the enactment. The appraisal also must
show the fair market value of each single-family dwelling to which the claimant is
entitled under subsection (2) of this section, along with evidence of any ad valorem
property taxes not paid, any severance taxes paid and any recapture of additional tax
liability that the owner has paid or will pay for the property if the property is
disquialified from special assessment under ORS 308A.703. The actual and
reasonable cost of preparing the claim, including the cost of the appraisal, not to
exceed $5000, may be added to the calculation of the reduction in fair market valuwe
under Section 7 (6) of this 2007 Act. The appraisal must:
(a) Be prepared by a person certified under ORS chapter 674 or a person registered
under ORS chapter 308;
(b) Comply with the Uniform Standards of Professional Appraisal Practice, as
authorized by the Financial Institutions Reform, Recovery and Enforcement Act of
1989; and
(c) Expressly determine the highest and best use of the property at the time the land
use regulation was enacted.
(8) Relief may not be granted under this section if the highest and best use of the
property was not residential use at the time the land use regulatio~ was enacted.
(9) When Metro, a city or county has issued a final decision authorizing one or more
single family dwellings under this section on the portion of the property located
within the urban growth boundary, the claimant may seek other governmental
authorizations required by law for that use, and the land use regulation enacted by a
public entity that has the effect of prohibiting the use does not apply to the review of
the authorizations, except as provided in section 11 of this 2007 Act. If Metro is
reviewing ... [N/A]
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -13-
~~~-r~~-~~
(10) The only types of land use that are authorized by this section are the
subdivisions or partition of land for one or more single-family dwellings, or the
establishment of one or more single-family dwellings on land on which the dwellings
would not otherwise be allowed.
As noted above, no qualifying appraisal complying with Section 9, subsection 6 - 8 of the Act
was submitted with the claim. The Attorney's cover letter indicates "claimants have been
unable to retain a certified appraiser..." Failure to follow the guidance of the City M 49 claim
form to submit the required information within the time provided by the Act has resulted in
disqualification of the claim. Specifically, Section 10 (3) of the Act provides specifically that if
the claimant fails to file the notice and required information with the public entity within 120
days after the date the public entity mails the notice, the claimant is not entitled to relief under
Section 9 of Measure 49. In addition, the failure to file the required information (appraisal)
makes determination of compliance with the standards for relief, impossible. Finally, the
primary regulations controlling development of this property are exempt regulations under
Measure 49. Accordingly, the claimant is not entitled to relief under Measure 49.
IV. ORDER
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 TENA TIVEL Y DENIES the claim by
George Harshman and Tri-W Group, et. al., under Section 9 and 10 of Measure 49 requesting
"ten (10) (two acre) legal lots with a single family dwelling on each lot" and concerning 27.25
acres of land located at Tax Map/Lot T39SRIE, Section 8DB, Lot 200. The claim is tentatively
denied for the reasons set forth above, included but not limited to the fact that the claim is
disqualified for failure to submit required information (specifically a qualifying appraisal) within
120 days of the City's notice and for failure to demonstrate compliance with the requirements of
Section 9 of the Act, specifically failure to demonstrate a reduction in value caused by non-
exempt regulations prohibiting residential use.
~c~
D - 1 c-')-
Mayor hn W. Morrison
I
Si~authorized and approved by the full Council this ~ day of September, 2008
roved as to form: L
Date: ~/3J 08
f I
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -14-
Attachment A.
18.62.080 Development Standardsfor Hillside Lands
It is the purpose of the Development Standards for Hillside Lands to provide supplementary development regulations to
underlying zones to ensure that development occurs in such a manner as to protect the natural and topographic character
and identity of these areas, environmental resources, the aesthetic qualities and restorative value of lands, and the public
health, safety, and general welfare by insuring that development does not create soil erosion, sedimentation of lower slopes,
slide damage, flooding problems, and severe cutting or scarring. It is the intent of these development standards to
encourage a sensitive form of development and to allow for a reasonable use that complements the natural and visual
character of the city.
A. General Requirements. The following general requirements shall apply in Hillside Lands:
1. All development shall occur on lands defined as having buildable area. Slopes greater than 35%
shall be considered un buildable except as allowed below. Variances may be granted to this requirement only
as provided in section 18.62.080.H
a. Existing parcels without adequate buildable area less than or equal to 35% shall be considered
buildable for one unit.
b. Existing parcels without adequate buildable area less than or equal to 35% cannot be subdivided
or partitioned.
2. All newly created lots either by subdivision or partition shall contain a building envelope with a slope of 35%
or less.
3. New streets, flag drives, and driveways shall be constructed on lands of less than or equal to 35% slope with
the following exceptions:
a. The street is indicated on the City's Transportation Plan Map - Street Dedications.
b. The portion of the street, flag drive, or driveway on land greater than 35% slope does not exceed a
length of 1 00 feet.
4. Geotechnical Studies. For all applications on Hillside Lands involving subdivisions or partitions, the
following additional information is required:
A geotechnical study prepared by a geotechnical expert indicating that the site is stable for the proposed use
and development. The study shall include the following information:
a. Index map.
b. Project description to include location, topography, drainage, vegetation, discussion of previous
work and discussion of field exploration methods.
c. Site geology, based on a surficial survey, to include site geologic maps, description of bedrock and
surficial materials, including artificial fill, locations of any faults, folds, etc..., and structural data
including bedding, jointing and shear zones, soil depth and soil structure.
d. Discussion of any off-site geologic conditions that may pose a potential hazard to the site, or that
may be affected by on-site development.
e. Suitability of site for proposed development from a geologic standpoint.
f Specific recommendations for cut and fill slope stability, seepage and drainage control or other
design criteria to mitigate geologic hazards.
g. If deemed necessary by the engineer or geologist to establish whether an area to be affected by the
proposed development is stable, additional studies and supportive data shall include cross-sections
showing subsurface structure, graphic logs with subsurface exploration, results of laboratory test
and references.
h. Signature and registration number of the engineer and/or geologist.
i. Additional information or analyses as necessary to evaluate the site.
J. Inspection schedule for the project as required in 18.62.080.B.9.
k Location of all irrigation canals and major irrigation pipelines.
B. Hillside Grading and Erosion Control. All development on lands classified as hillside shall provide plans
conforming to the following items:
1. All grading, retaining wall design, drainage, and erosion control plans for development on Hillside Lands
shall be designed by a geotechnical expert. All cuts, grading or fills shall conform to the International
Building Code_and be consistent with the provisions of this Title. Erosion control measures on the
development site shall be required to minimize the solids in runofffrom disturbed areas.
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -15-
2. For development other than single family homes on individual lots, all grading, drainage improvements, or
other land disturbances shall only occur from May 1 to October 31. Excavation shall not occur during the
remaining wet months of the year. Erosion control measures shall be installed and functional by October 31.
Up to 30 day modifications to the October 31 date and 45 day modification to the May 1 date may be made
by the Planning Director, based upon weather conditions and in consultation with the project geotechnical
expert. The modification of dates shall be the minimum necessary, based upon evidence provided by the
applicant, to accomplish the necessary project goals.
3. Retention in natural state. On all projects on Hillside Lands involving partitions and subdivisions, and
existing lots with an area greater than one-half acre, an area equal to 25% of the total project area. plus the
percentage figure of the average slope of the total prpject area, shall be retained in a natural state. Lands to
be retained in a natural state shall be protected from damage through the use of temporary construction
fencing or the functional equivalent.
For example, on a 25,000 sq. ft. lot with an average slope of29%, 25%+29%=54% of the total lot area shall
be retained in a natural state.
The retention in a natural state of areas greater than the minimum percentage required here is encouraged.
4. Grading - cuts. On all cut slopes on areas classified as Hillside lands. the following standards shall apply:
a. Cut slope angles shall be determined in relationship to the type of materials of which they are
composed. Where the soil permits, limit the total area exposed to precipitation and erosion. Steep cut
slopes shall be retained with stacked rock, retaining walls, or functional equivalent to control erosion
and provide slope stability when necessary. Where cut slopes are required to be laid back (1: 1 or less
steep), the slope shall be protected with erosion control getting or structural equivalent installed per
manufacturers specifications, and revegetated.
b. Exposed cut slopes, such as those for streets, driveway accesses. or yard areas. greater than seven
feet in height shall be terraced. Cut faces on a terraced section shall not exceed a maximum height of
five feet. Terrace widths shall be a minimum of three feet to allow for the introduction of vegetation for
erosion control. Total cut slopes shall not exceed a maximum vertical height of 15 feet. (See Graphic)
Not t 0 Sea Ie
For III u s t rat ion 0 n Iy
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -16-
---------r ~~--
Reduce Effective Visua
Bulk by Utilizing v
Stepped Foundations
The top of cut slopes not utilizing structural retaining walls shall be located a minimum setback of one-
half the height of the cut slope from the nearest property line.
Cut slopes for structure foundations encouraging the reduction of effective visual bulk, such as split pad
or steppedfootings shall be exemptedfrom the height limitations of this section. (See Graphic)
c. Revegetation of cut slope terraces shall include the provision of a planting plan, introduction of top
soil where necessary, and the use of irrigation if necessary. The vegetation used for these areas shall be
native or species similar in resource value which will survive help reduce the visual impact of the cut
slope, and assist in providing long term slope stabilization. Trees, bush-type plantings and cascading
vine-type plantings may be appropriate.
5. Grading - fills. On all fill slopes on lands classified as Hillside Lands, the following standards shall apply:
a. Fill slopes shall not exceed a total vertical height of 20 feet. The toe of the fill slope area not
utilizing structural retaining shall be a minimum of six feet from the nearest property line. (Ord 2834
56, 1998)
b. Fill slopes shall be protected with an erosion control netting, blanket or functional equivalent.
Netting or blankets shall only be used in conjunction with organic mulch such as straw or wood fiber.
The blanket must be applied so that it is in complete contact with the soil so that erosion does not occur
beneath it. Erosion netting or blankets shall be securely anchored to the slope in accordance with
manufacturer's recommendations.
c. Utilities. Whenever possible, utilities shall not be located or installed on or in fill slopes. When
determined that it necessary to install utilities on fill slopes, all plans shall be designed by a
geotechnical expert.
d. Revegetation of fill slopes shall utilize native vegetation or vegetation similar in resource value and
which will survive and stabilize the surface. Irrigation may be provided to ensure growth if necessary.
Evidence shall be required indicating long-term viability of the proposed vegetation for the purposes of
erosion control on disturbed areas.
6. Revegetation requirements. Where required by this chapter, all required revegetation of cut and fill slopes
shall be installed prior to the issuance of a certificate of occupancy, signature of a required survey plat, or
other time as determined by the hearing authority. Vegetation shall be installed in such a manner as to be
substantially established within one year of installation.
7. Maintenance, Security, and Penalties for Erosion Control Measures.
a. Maintenance. All measures installed for the purposes of long-term erosion control, including but
not limited to vegetative cover, rock walls, and landscaping, shall be maintained in perpetuity on all
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -1 7-
areas which have been disturbed, including public rights-ol-way. The applicant shall provide evidence
indicating the mechanisms in place to ensure maintenance of measures.
b. Security. Except for individual lots existing prior to January I, 1998, after an Erosion Control
Plan is approved by the hearing authority and prior to construction, the applicant shall provide a
performance bond or other financial guarantees in the amount of 120% of the value of the erosion
control measures necessary to stabilize the site. Any financial guarantee instrument proposed other
than a performance bond shall be approved by the City Attorney. The financial guarantee instrument
shall be in effect for a period of at least one year, and shall be released when the Planning Director and
Public Works Director determine, jointly, that the site has been stabilized. All or a portion of the
security retained by the City may be withheld for a period up to five years beyond the one year
maintenance period if it has been determined by the City that the site has not been sufficiently stabilized
against erosion.
8. Site Grading. The grading of a site on Hillside Lands shall be reviewed considering the following factors:
a. No terracing shall be allowed except for the purposes of developing a level building pad and for
providing vehicular access to the pad.
b. Avoid hazardous or unstable portions of the site. (Ord 2834,S2 1998)
c. Avoid hazardous or unstable portions of the site.
d. Building pads should be of minimum size to accommodate the structure and a reasonable amount
of yard space. Pads for tennis courts, swimming pools and large lawns are discouraged. As much of
the remaining lot area as possible should be kept in the natural state of the original slope.
9. Inspections and Final Report. Prior to the acceptance of a subdivision by the City, signature of the final
survey plat on partitions, or issuance of a certificate of occupancy for individual structures, the project
geotechnical expert shall provide a final report indicating that the approved grading, drainage, and erosion
control measures were installed as per the approved plans, and that all scheduled inspections, as per
18.62.080.A.4J were conducted by the project geotechnical expert periodically throughout the project.
C. Surface and Groundwater Drainage. All development on Hillside Lands shall conform to the following
standards:
1. All facilities for the collection of stormwater runoff shall be required to be constructed on the site and
according to the following requirements:
a. Storm water facilities shall include storm drain systems associated with street construction,
facilities for accommodating drainage from driveways, parking areas and other impervious surfaces,
and roof drainage systems.
b. Stormwater facilities, when part of the overall site improvements, shall be, to the greatest extent
feasible, the first improvements constructed on the development site.
c. Storm water facilities shall be designed to divert surface water away from cut faces or sloping
surfaces of a fill.
d. Existing natural drainage systems shall be utilized, as much as possible, in their natural state,
recognizing the erosion potential from increased storm drainage..
e. Flow-retarding devices, such as detention ponds and recharge berms, shall be used where
practical to minimize increases in runoff volume and peak flow rate due to development. Each facility
shall consider the needs for an emergency overflow system to safely carry any overflow water to an
acceptable disposal point.
f Stormwater facilities shall be designed, constructed and maintained in a manner that will avoid
erosion on-site and to adjacent and downstream properties.
g. Alternate stormwater systems, such as dry well systems, detention ponds, and leach fields, shall be
designed by a registered engineer or geotechnical expert and approved by the City's Public Works
Department or City Building Official.
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -18-
D. Tree Conservation, Protection and Removal. All development on Hillside Lands shall conform to the
following requirements:
I. Inventory of Existing Trees. A tree survey at the same scale as the project site plan shall be prepared, which
locates all trees greater than six inches db.h., identified by db.h., species, approximate extent of tree canopy.
In addition, for areas proposed to be disturbed, existing tree base elevations shall be provided. Dead or
diseased trees shall be identified Groups of trees in close proximity (i.e. those within five feet of each other)
may be designated as a clump of trees, with the predominant species. estimated number and average
diameter indicated. All tree surveys shall have an accuracy of plus or minus two feet. The name, signature.
and address of the site surveyor responsible for the accuracy of the survey shall be provided on the tree
survey.
Portions of the lot or project area not proposed to be disturbed by development need not be included in the
inventory.
2. Evaluation of Suitability for Conservation. All trees indicated on the inventory of existing trees shalt also be
identified as to their suitability for conservation. When required by the hearing authority. the evaluation
shall be conducted by a landscape professional. Factors included in this determination shall include:
a. Tree health. Healthy trees can better withstand the rigors of development than non-vigorous trees.
b. Tree Structure. Trees with severe decay or substantial defects are more likely to result in damage
to people and property.
c. Species. Species vary in their ability to tolerate impacts and damage to their environment.
d Potential longevity.
e. Variety. A variety of native tree species and ages.
f Size. Large trees provide a greater protection for erosion and shade than smaller trees.
3. Tree Conservation in Project Design. Significant trees (2' db.h. or greater conifers and I' db.h. or greater
broadleaj) shall be protected and incorporated into the project design whenever possible.
a. Streets, driveways, buildings, utilities, parking areas, and other site disturbances shall be located
such that the maximum number of existing trees on the site are preserved, while recognizing and
following the standards for fuel reduction if the development is located in Wildfire Lands.
Sit e Planning
.-:.:.::~..:~-...:. Responsive. to
j: " :. ,_.>'. ~ Tree Locat Ions
. ~, . Exist ing Sit e
1 ~; . wit h significant
. ; . trees
L_~6L.~':-:J
S ensit ive develoment
opt ion for propert y .
b. Building envelopes shall be located and sized to preserve the maximum number of trees on site
while recognizing and following the standards for fuel reduction if the development is located in
Wildfire Lands.
c. Layout of the project site utility and grading plan shall avoid disturbance of tree protection areas.
4. Tree Protection. On all properties where trees are required to be preserved during the course of
development, the developer shall follow the following tree protection standards:
a. All trees designated for conservation shall be clearly marked on the project site. Prior to the start
of any clearing, stripping, stockpiling. trenching, grading, compaction. paving or change in ground
elevation. the applicant shall install fencing at the drip line of all trees to be preserved adjacent to or in
the area to be altered Temporary fencing shall be established at the perimeter of the dripline. Prior to
grading or issuance of any permits. the fences may be inspected and their location approved by the Staff
Advisor. (see 18.61.200)
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -19-
b. Construction site activities, including but not limited to parking, material storage, soil compaction
and concrete washout, shall be arranged so as to prevent disturbances within tree protection areas.
c. No grading, stripping, compaction, or significant change in ground elevation shall be permitted
within the drip line of trees designated for conservation unless indicated on the grading plans, as
approved by the City, and landscape professional. If grading or construction is approved within the
dripline, a landscape professional may be required to be present during grading operations, and shall
have authority to require protective measures to protect the roots.
d. Changes in soil hydrology and site drainage within tree protection areas shall be minimized.
Excessive site run-off shall be directed to appropriate storm drain facilities and away from trees
designated for conservation.
e. Should encroachment into a tree protection area occur which causes irreparable damage, as
determined by a landscape professional, to trees, the project plan shall be revised to compensate for the
loss. Under no circumstances shall the developer be relieved of responsibility for compliance with the
provisions of this chapter.
5. Tree Removal. Development shall be designed to preserve the maximum number of trees on a site. The
development shall follow the standards for fuel reduction if the development is located in Wildfire Lands.
When justified by findings of fact, the hearing authority may approve the removal of trees for one or more of
the following conditions: (Ord 2834 S3, 1998)
a. The tree is located within the building envelope.
b. The tree is located within a proposed street, driveway, or parking area.
c. The tree is located within a water, sewer, or other public utility easement.
d. The tree is determined by a landscape professional to be dead or diseased, or it constitutes an
unacceptable hazard to life or property when evaluated by the standards in 18.62.080.D.2.
e. The tree is located within or adjacent to areas of cuts or fills that are deemed threatening to the life
of the tree, as determined by a landscape professional.
6. Tree Replacement. Trees approved for removal, with the exception of trees removed because they were
determined to be diseased, dead, or a hazard, shall be replaced in compliance with the following standards:
a. Replacement trees shall be indicated on a tree replanting plan. The replanting plan shall include
all locations for replacement trees, and shall also indicate tree planting details. (Ord 2834 S4, 1998)
b. Replacement trees shall be planted such that the trees will in time result in canopy equal to or
greater than the tree canopy present prior to development of the property. The canopy shall be designed
to mitigate of the impact of paved and developed areas, reduce surface erosion and increase slope
stability.. Replacement tree locations shall consider impact on the wildfire prevention and control plan.
The hearing authority shall have the discretion to adjust the proposed replacement tree canopy based
upon site-specific evidence and testimony.
Tree Plant ing
Guideline
3' ...Ich k"'"
.- from trunk
Stake ~. tree is U,.bIe
to sUnd on Is own,
and state IS Iow.s pOISsib.
'<<II: h . non.mtt .Iie shke
c.:.. i_t ed plant ing ar. should be 3~5
tin.. the size of the roatbal. and only
nIIt ive loil should be used for f..
Mol6M:I sight Iy to contain wal...
Set top of root bill at ground 1ewI.
Fr. bwlep from t rUN. and
keep below grade.
- S. t r.. on sound ground
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -20-
c. Maintenance of replacement trees shall be the responsibility of the property owner. Required
replacement trees shall be continuously maintained in a healthy manner. Trees that die within the first
five years after initial planting must be replaced in kind, after which a new five year replacement period
shall begin. Replanting must occur within 30 days of notification unless otherwise noted. (Ord 2834 S5,
1998)
7. Enforcement.
a. All tree removal shall be done in accord with the approved tree removal and replacement plan. No
trees designatedfor conservation shall be removed without prior approval of the City of Ashland.
b. Should the developer or developer's agent remove or destroy any tree that has been designated for
conservation, the developer may be fined up to three times the current appraised value of the
replacement trees and cost of replacement or up to three times the current market value, as established
by a professional arborist, whichever is greater.
c. Should the developer or developer's agent damage any tree that has been designatedfor protection
and conservation, the developer shall be penalized $50.00 per scar. If necessary, a professional
arborist's report, prepared at the developer's expense, may be required to determine the extent of the
damage. Should the damage result in loss of appraised value greater than determined above, the higher
of the two values shall be used.
E. Building Location and Design Standards. All buildings and buildable areas proposed for Hillside Lands
shall be designed and constructed in compliance with the following standards:
1. Building Envelopes. All newly created lots, either by subdivision or partition, shall contain building
envelopes conforming to the following standards:
a. The building envelope shall contain a buildable area with a slope of 35% or less.
r? l~ LfNas .-------.....,
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/l.-.--4.. &".~p......&-e .
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C.....Te>,...) I r -- -~l ti. VAIC.D
-~ i.\".' ~ ~\:'J IlloUL.DINGo
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~_.~-_L!..~-~-~":I--~ h_
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--._--------~_.... ------
b. Building envelopes and lot design shall address the retention of a percentage of the lot in a natural
state as required in 18.62.080.B.3.
c. Building envelopes shall be designed and located to maximize tree conservation as required in
18. 62.080.D.3. while recognizing imdfollowing,the standards for fuel reduction if the development is
located in Wildfire Lands
d. It is recommended that building envelope locations should be located to avoid ridge line exposures,
and designed such that the roojline of a building within the envelope does not project above the
ridgeline.
R:t at im d tlllsi<E
ctaai 6' em rB: lJ"a
slqEty CNidrg
ri~ire
local icrs
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -21-
2. Building Design. To reduce hillside disturbance through the use of slope responsive design techniques,
buildings on Hillside Lands, excepting those lands within the designated Historic District, shall incorporate
the following into the building design and indicate features on required building permits:
a. Hillside Building Height. The height of all structures shall be measured vertically from the natural
grade to the uppermost point of the roof edge or peak, wall, parapet, mansard, or other feature
perpendicular to that grade. Maximum Hillside Building Height shall be 35 feet. (graphics available
on original ordinance)
b. Cut buildings into hillsides to reduce effective visual bulk.
(/). Split pad or stepped footings shall be incorporated into building design to allow the structure to
more closely follow the slope.
(2). Reduce building mass by utilizing below grade rooms cut into the natural slope.
c. A building stepback shall be required on all downhill building walls greater than 20 feet in height,
as measured above natural grade. Stepbacks shall be a minimum of six feet. No vertical walls on the
downhill elevations of new buildings shall exceed a maximum height of 20 feet above natural grade. (see
graphic)
d. Continuous horizontal building planes shall not exceed a maximum length of 36 feet. Planes
longer than 36 feet shall include a minimum offset of six feet. (graphic available on original ordinance)
e. It is recommended that roof forms and roof lines for new structures be broken into a series of
smaller building components to reflect the irregular forms of the surrounding hillside. Long, linear
unbroken roof lines are discouraged. Large gable ends on downhill elevations should be avoided,
however smaller gables may be permitted. (graphic available on original ordinance)
f It is recommended that roofs of lower floor levels be used to provide deck or outdoor space for
upper floor levels. The use of overhanging decks with vertical supports in excess of 12 feet on downhill
elevations should be avoided.
g. It is recommended that color selection for new structures be coordinated with the predominant
colors of the surrounding landscape to minimize contrast between the structure and the natural
environment
F. All structures on Hillside Lands shall have foundations which have been designed by an engineer or architect
with demonstrable geotechnical design experience. A designer, as defined, shall not complete working drawings
without having foundations designed by an engineer.
G. All newly created lots or lots modified by a lot line adjustment must include a building envelope on all lots
that contains a buildable area less than 35% slope of sufficient size to accommodate the uses permitted in the
underlying zone, unless the division or lot line adjustment is for open space or conservation purposes.
H Administrative Variance From Development Standards for Hillside Lands - 18.62.080. A variance under this
section is not subject to the variance requirements of section 18.100 and may be granted with respect to the
development standards for Hillside Lands if all of the following circumstances are found to exist:
I. 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;
2. The variance will result in equal or greater protection of the resources protected under this
chapter;
3. The variance is the minimum necessary to alleviate the difficulty; and
4. The variance is consistent with the stated Purpose and Intent of the Physical and Environmental
Constraints Chapter and section 18.62.080.
Appeals of decisions involving administrative variances shall be processed as outlined in 18.108.070.
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -22-
Attachment B. (Slope Map)
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -23-
Attachment C. (Topographic map)
COUNCIL TENTATIVE FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Page -24-
1------
"
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