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HomeMy WebLinkAbout2008-199 Findings - Strawberry Lane BEFORE THE CITY COUNCIL CITY OF ASHLAND, JACKSON COUNTY, OREGON LUBA No. 2008-133 [DECISION ON RECONSIDERATION] November 4,2008 In the Matter of an Appeal of Planning Action 2008-00182, on Reconsideration, A Request for an Outline Plan approval under ) the Performance Standards Option [AMC Chapter 18.88] for 5 unit) FINDINGS OF FACT 6 lot Residential Subdivision; together with Request for a Physical ) CONCLUSIONS OF LAW Constraints Review Permit for Development of Hillside Lands; ) AND ORDER together with a Request for a Tree Removal Permit to remove (13) ) thirteen six-inch in diameter or larger trees, including an (18) ) eighteen inch Oak tree; together with a Request for an Exception ) to Street Standards to allow the Applicants to terminate Hitt Rd ) improvements at the driveway of proposed Lot 5 , all the above ) applications being for the property located at 500 Strawberry Lane) within the City of Ashland, Jackson County, Oregon. ) Applicant: Robert & Laura McLellan. ) I. NATURE OF PROCEEDINGS This matter comes before the City Council on Reconsideration after a withdrawal of the initial July 15, 2008 Ashland City Council decision from LUBA pursuant to OAR 661-010-0021(1). A decision on reconsideration is due to LUBA on or before November 20, 2008. On Reconsideration, the City Council elects not to conduct a new hearing or accept additional evidence or argument. The Council only considers the adoption of these revised Findings of Fact, Conclusions of Law and Order based on the existing record to more accurately and thoroughly address compliance with applicable standards, to address the objections raised by Petitioner Dimino and to express required City Council interpretations of the Ashland Municipal Code. This matter originally came before the City Council for the City of Ashland on June 17, 2008 for a de novo appeal hearing. The appeal is from an April 8, 2008 decision of the City of Ashland Planning Commission approving four separate land use actions, including inter alia a request for an outline plan approval and exception to street standards on the subject property located at 500 Strawberry Land, Ashland, Oregon. A mandatory pre-application conference was held on July 11, 2007. The application for outline plan approval was filed by the applicant with the Planning Department on February 4,2008. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 1 ,. The application was deemed incomplete. Additional materials were submitted on February 8, 2008 and February 26, 2008 by the applicant. Four separate land use applications, each with different application fees, were deemed completed on March 3, 2008; the applications were processed concurrently. The applicant requested, inter alia, that the City grant "Outline Plan" approval for a six lot, [five unit] single-family residential subdivision under City's "Performance Standards Option." [Technically this is a five lot / five unit subdivision with an additional open space or common area tract, denominated "Lot 6."] Additional land use applications processed concurrently include a physical constraints permit for Hillside lands, a tree removal permit and an exception to street standards. Notification of the public hearing before the Planning Commission on March 11, 2008, was mailed on February 21,2008, pursuant to Chapter 18, Ashland Land Use Ordinance to area property owners and affected public agencies. Notice of the March 11, 2008, hearing was also published in the Ashland Daily Tidings on March 1, 2008. On March 11, 2008, the Planning Commission conducted a public hearing and considered the oral and written testimony presented, the staff report and the record as a whole. At the conclusion of the hearing Catherine Dimino, one of the parties who had participated in the hearing, requested that the record be held open for seven days, and the applicants requested an additional seven days to respond to additional written argument. The requests were granted, the record was left open until 5:00 p.m. March 19, 2008 and final argument was required to be submitted on or before 5:00 p.m. on March 26,2008. Deliberations were continued to the April 8, 2008 meeting. On April 8, 2008, the Planning Commission considered the record, including the evidence submitted by the opponents and the argument submitted by the applicant, and approved the application subject to conditions pertaining to the appropriate development of the site. On April 8, 2008, the Findings, Conclusions, and Order of City's Planning Commission were approved and duly signed by the Chairperson of City's Planning Commission on April 9, 2008. The Notice of Decision was mailed to the parties on April 11, 2008. Pursuant to the mandatory language of the ALUO then in effect [ALUO 18.108.110A.(1)] "an appeal shall be filed prior to the effective date of the Commission decision." AMC 18.108.070 makes the Planning Commission decision effective fifteen (15) days after the date of mailing, [in this case: April 26, 2008]. On Monday April 28, 2008, Appellant, Catherine Dimino filed an appeal to the City Council under ALUO 18.108.110, thereby purporting to appeal the Findings, Conclusions, and Orders of City's Planning Commission as relates to the four applications approved. A single appeal application and appeal fee was also paid on April 28, 2008. The stated reasons for the appeal, addressing at least two of the four decisions, included the following: (1) The application does not meet lot coverage requirements as specified Chapter 18.16.040. 18.88.100 does not grant lot coverage exceptions to 18.88 Performance Standard Options, COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 2 --~T ~- nor does the Chapter provide the exception. (2) 18.88.050 Exception to Street Standards - A, B, & C circumstances do not exist. (3) Building envelope for lot 1 does not meet the intent of 18.88.010 Notification of a public hearing before the City Council was mailed on May 28,2008, pursuant to ALUO to area property owners and affected public agencies. Notice of the appeal hearing was also mailed to the newspaper on June 5, 2008 and published in the Ashland Daily Tidings on June 11, 2008. On June 17, 2008, 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, including the record before the Planning Commission, and all exhibits and documents reflected in the record before Council. On June 17,2008 at the conclusion of the hearing, appellant Catherine Dimino requested that the record be held open for seven days, and the applicants requested an additional seven days to respond with written argument. The record was held open until June 25th 2008 at 5:00 p.m. Final written argument was required to be submitted by July 2nd 2008 at 5:00 p.m. Materials were timely submitted by appellant while the record was open. The record was then closed. Final written argument was timely submitted by the applicant. Deliberations were held at a public meeting on July 15, 2008. The Council deliberated and approved all four of the land use applications in file 2008-00182, with conditions. The Council's action denied the appeal and generally upheld the Findings, Conclusions, and Orders of the Planning Commission, with some modifications. Written findings which had been prepared by the Planning Department in advance were approved that evening. On August 5, 2008, a Notice of Intent to Appeal was served on the City of Ashland and filed at LUBA by appellant, Ms. Dimino. On August 22,2008 the City of Ashland, under authority of the City Administrator and City Attorney, withdrew the City's decision for reconsideration pursuant to OAR 661-010-0021(1). On November 4,2008 the Council reconsidered the decision, without re-opening the hearing or the record. Following deliberations the Council adopted the Revised Findings set forth herein. 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 2008-00182, is real property located within the City of Ashland, and described in the County Tax Assessor's maps as Map 391E 08 AC Tax Lot 201 (the "Property"). The street address of the Property is 500 Strawberry Lane, Ashland, Oregon, COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 3 -----,- -- 97520. 3) The zoning of the Property is zoned RR-.5-P Rural Residential.. 4) The owners of the property in Planning Action #2008-00182 are Robert & Laura McLellan. ("Applicant). 5) The applicants are requesting Outline Plan Approval to allow a six-lot, five-unit subdivision under the Performance Standards Options Chapter for the property located at 500 Strawberry Lane. The application also requests a Physical & Environmental Constraints Review Permit for Development of Hillside Lands, a Tree Removal Permit to remove 13 trees six-inches in diameter at breast height (d.b.h.) or larger, and an Exception to Street Standards to allow the applicants to end street improvements at the driveway of Lot 5 rather than extending them to the southern boundary of the project. Site improvements are outlined on the plans on file at the Department of Community Development. III. JURISDICTION Based upon the mandatory language of the Code, [i.e. "shall"] the City Council finds and determines that the appeal of the Planning Commission decision to the City Council was not timely filed. Specifically, the ALUO in effect at the time provided in 18.108.110A(I) that "The appeal shall be filed prior to the effective date of the decision of the Commission." (emphasis added) ALUO 18.108.070B(3) then in effect also provided: The decision of the Commission is the final decision of the City resulting from the Type II Planning Procedure, effective 15 days after the findings adopted by the Commission are signed by the Chair of the Commission and mailed to the parties, unless appealed to the Council as provided in section 18.108.110.A. By operation of law, the Planning Commission decision became effective on April 26, 2008. Because Opponent, Ms. Dimino did not file her appeal until April 28, 2008 her appeal was not timely filed. Opponent is a sophisticated participant in local land use matters and has made numerous arguments in this land use proceeding stressing strict observance of the language of the Code. Under the mandatory language of the code, the Planning Commission decision was already effective when the appeal was filed. Accordingly, the Council finds and determines that this defect in filing, expressly contrary to the mandatory language of the Code, represents a jurisdictional defect in the local appeal and the Council accordingly does not have jurisdiction to consider this appeal. The decision of the Ashland Planning Commission (attached hereto and made a part hereof by this reference) is the final unappealed decision of the City of Ashland. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 4 ... --T-- The Council further finds and determines that City staff does not have the authority to waive or excuse mandatory provisions of the Ashland land Use Ordinance. No provision in the City of Ashland Land Use Ordinance extends the appeal filing deadline to accommodate or cure Opponent's late filing; accordingly, staff is without authority to do so. To the extent prior staff reports or findings state that the local appeal was timely filed, the Council finds these statements to be contrary to the facts as applied to the law in the case. A participant in local land use proceedings must ascertain for itself, from the local code, what it must do to protect its rights.) Columbia River Television v. Multnomah County, 299 Or 325, 329, (1985); City of Grants Pass v. Josephine County, 25 Or LUBA 722, 728 (1993); Kamppi v. City of Salem, 21 Or LUBA 498, 505 (1991). The strict observance of mandatory local appeal requirements by applicants, opponents and staff is absolutely necessary and critical to avoid prejudice and harm to parties to the proceeding. IV. FINDINGS APPLYING APPLICABLE CODE CRITERIA In the event the City Council is found to have jurisdiction over this local appeal, (i.e. following a motion to dismiss any appeal at LUBA if necessary) the Council makes the following findings of fact and conclusions of law as regards the merits of the planning application: 1) The City Council finds and determines that the relevant approval criteria are found in or referenced in ALUO Chapter 18, including specifically but not limited to Chapter 18.88, as regards the Outline Plan Approval; Chapter 18.62.040.1 as regards the Physical Constraints Review permit, Chapterl8.61.080 as regards the Tree Removal Permit and Chapter 18.88.050.F as regards the Exception to Street Standards. 2) The City Council finds that it has received all information necessary to make a decision based on the record made before the City Council, including the record before the Planning Commission, Council Communications from staff, public hearing testimony and the exhibits, evidence and arguments received. 3) The Council finds and determines that this proposal to develop a six lot, five 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 proposal to terminate Hitt Road street improvements in the area near lot 5 of the subdivision meets all applicable criteria for an Exception to Street Standards described in Chapter 18.88. Although the Physical Constraints Permit and Tree Removal Permits were not directly challenged in this local appeal, the Council finds and determines that the applications meet all the applicable requirements of the Code for approval [i.e. Chapter 18.62 and Chapter 18.61.]. These findings of compliance with all applicable approval criteria are supported by the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, as well as the detailed Findings in support of the Application submitted by the Applicant, all such COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 5 ~-- findings being specifically incorporated herein by this reference. (In the event of conflict between the Planning Commission or Applicant findings and Council findings, Council findings control). In addition, compliance with applicable approval criteria is supported by competent substantial evidence in the whole record. 4) The City Council finds and determines that the development meets all applicable approval criterion and requirements of the City of Ashland, and the attached conditions of approval, whether specifically referenced or not in the findings below, achieve compliance for stated criterion, as applicable. 5) The criteria for Outline Plan approval under the Performance Standards Options are described in Chapter 18.88 as follows: The Planning Commission shall approve the outline plan when it finds the following criteria have been met: a) That the development meets all applicable ordinance requirements of the City of Ashland. b) That adequate key City facilities can be provided 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. 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 the development and significant features have been included in the open space, common areas, and unbuildable areas. d) That the development of the land will not prevent adjacent land from being developed for the uses shown in the Comprehensive Plan. 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. ft That the proposed density meets the base and bonus density standards established under this Chapter. 6) Criterion: [ALVa 18.88.030.AA.a.] ... That the development meets all applicable ordinance requirements of the City of Ashland. The Council finds and determines that COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 6 TU 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 Vse Ordinance. The Council finds that the development meets all applicable ordinance requirements of the City of Ashland as detailed herein. The Site Plan in the record delineates the proposed building envelopes, setbacks, and driveway locations, demonstrating compliance. The setbacks on the perimeter of the subdivision and for the front yards meet the standard setback requirements of the Rural Residential zoning , district, and the proposal satisfies the Code. Solar Access standards must be protected. However, if the applicant wishes to exceed the applicable Solar Access standards, Solar Access Variances will be required to be applied for concurrently with the Final Plan application. Finally Lot coverage is unquestionably met on the basis of the site as a whole, although it has been challenged by a neighbor as discussed below. Rural Residential Zoning [ALVa 18.16] permitted uses expressly list authorized development under Chapter 18.88, Performance Standards Subdivisions. The general regulations of AMC 18.16 are essentially implemented verbatim through "straight subdivisions" and the Council expressly finds and determines that such general regulations do not directly transfer to AMC 18.88 planned development without acknowledged and authorized flexibility. The Opponent essentially disagrees with the extent to which a development under Chapter 18.88 can vary from the" general regulations" as expressed in the ALVa 18.16.040, (i.e. straight subdivision as opposed to a performance standards subdivision.) Opponent argues 18.88.100 precludes flexibility in lot coverage because lot coverage is not listed. Staff and the applicant argued that the flexibility is expressly by definition and inherent in the application of the Chapter; opponent separately analyzes the language of the Code, including the definition of coverage and concludes that there is no allowance for flexibility. The Council finds and determines that opponent's analysis does not acknowledge the context and usage of coverage in the Performance Standards Chapter and the inherent and inevitable impact on lot coverage requirements when lot size requirements of the zone are permitted to be reduced. Opponent's appeal does point to needed clarifying code amendments, to avoid these kinds of arguments and unnecessary appeals, contrary to the intent of the Code. For the reasons set forth below, the City Council expressly rejects Opponent's proposed rigid interpretation of the ALVa Performance Standards Chapter. The Council expressly adopts the interpretation presented by staff and the applicant in these findings and as expressed in the record of this proceeding. Staff's interpretation is consistent with the language of the Code, the context in Chapter 18.88, the intent of the Performance Standards Chapter and other code provisions designed to protect sensitive lands, minimize land disturbance and cluster development to achieve these objectives. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 7 T----- The City Council expressly finds and determines that, by definition, the ALVa allows flexibility on lot coverage such that the requirement can be met on the entire site or on the individual lot. The Performance Standards Chapter's allowance, even incentives, for provision and dedication of common area open space make performance standard subdivisions the most commonly seen incidence of use for lot coverage flexibility. Staff and the applicant recounted numerous prior applications of such flexibility in the record of prior developments utilizing lot coverage flexibility (coverage met on the total site not individual lots) including the subdivision and lot on which opponent resides. The coverage definition in ALVa 18.08.160 is as follows: 18.08.160 Coverage, lot or site; Total area of all structures, paved driveways, or other soil disturbances that will not allow normal water infiltration. The coverage is expressed as a percentage of such area in relation to the total gross area of the lot or site. Landscaping which does not negatively impact the natural water retention and soil characteristics of the site shall not be deemed part of the lot or site coverage. The Council finds and determines that the definition's allowance that" coverage is expressed as a percentage of such area in relation to the total gross area of the lot or site" [emphasis added] is express recognition in the ALVa that lot coverage requirement is intended to be flexible and can be met by either the individual lot or the project site. The Council could have but did not write separate definitions for lot and site coverage. While it is true that the definition can be read alone, in isolation as a sterile definition, with lot coverage and site coverage simply grouped together for economy, that reading ignores the context of the ALva and the recognition of the flexibility for lot coverage in relation to open space in the performance standards subdivision chapter. Specifically, the context of the Performance Standards Subdivision requires the "lot or site" interpretation of the coverage requirement. For example, the definition of open space in Chapter 18.88.020.H acknowledges the availability of use of common areas to meet other Code requirements. The ALVa provides in pertinent part: Open Space shall be optional for developments of less than 10 units, unless required by the application of the approval criteria. [emphasis addedl One obvious approval criterion which might require open space to be provided on development of less than 10 units is lot coverage. If, as here, the lots in the subdivision are reduced in size and clustered to avoid and preserve sensitive lands (here severe Hillside slopes) it becomes necessary to meet lot coverage on basis of the site as a whole. This site based method of achieving compliance, using open space to meet code requirements, is expressly acknowledged in the Chapter. The resultant, protection of the COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 8 --,---- environment and minimization of land disturbances is also consistent with ALVO 18.88.030A.4.c. (requiring identification and preservation of significant natural features). Similarly ALVO 18.88.080.D.2. permits use of Chapter 18.88 without an overlay only in specified situations including the need to "protect the environment and the neighborhood from degradation which would occur from development to the maximum density under [ straight] subdivision standards." That is, meeting all requirements on individual lots as in standard subdivisions will destroy the environment and degrade the neighborhood. In addition, other environmental protection provisions of the ALVO [e.g. Chapter 18.62 Physical Constraints Chapter] are furthered by clustering of lots and preservation of open space, including meeting code requirements for lot coverage in the open space common areas. Finally, the Performance Standards Chapter encourages provision of open space with density bonuses [ALVO 18.88.040.B.3.b.2]. This section also acknowledges that the common area bonus provision purposes include the preservation of sensitive lands such as " natural areas," "wetlands." "active or passive recreation areas." Opponent's interpretation of the definition, although plausible, discourages provision of open space common areas. Given this context, a sterile reading of the definition as proposed by opponent is contrary to the language of the ALVO, contrary to the context of the ALVO performance standards subdivision as well as the Chapter's purposes (although purposes are not an incorporated criterion - such as for street standards exceptions noted below). Accordingly, based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission as well as the detailed findings in support submitted by the applicant, 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. 7) Criterion: [ALVO 18.88.030.A.4.b.] ... That adequate key City facilities can be provided 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. 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 and determines 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 water and electric services are available from Strawberry Lane and Hitt Road rights-of-way and will connect through the site via individual driveways. Paved access is COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 9 ---'.--- provided by Strawberry lane and Hitt Road. Storm drain facilities will include private detention systems on the individual lots. As regards adequate transportation facilities, the City Council finds that no new streets are proposed with the proposed application, and that the proposed lots will take access from the existing Strawberry Lane and Hitt Road rights-of-way. A condition has been added to require that sidewalks and street tree installation be completed along a small portion of the subject property's Strawberry Lane frontage where they are lacking, and an Exception to Street Standards has been requested by the applicants to end street improvements on Hitt Road at the relocated gate past the driveway of Lot 5 rather than extending them to the southern boundary of the project. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission as well as the detailed findings in support submitted by the applicant, 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: [ALVa 18.88.030.A.4.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 ALVa 18.88.030.A.4.c. requires the identification of features of the land that are both existing and natural. More importantly, the Council finds and determines that ALVa 18.88.030.A.4.c. requires the preservation of significant existing and natural features of the land. Features are "significant" if they are important and meaningful ecological resources. The City Council finds that the significant natural features of the property are the existing trees and the naturally steeply-sloped, heavily-wooded slopes on the southern end of the site, (primarily the area denominated Lot 6). The Council further finds that the proposed lot layout, common area and building envelope placements, and driveway locations have been selected in order to protect these natural features. On this site 59 of the 72 trees on the site over six-inches in diameter at breast height are to be preserved, driveways are to be located in response to the site topography to minimize site and slope disturbances, and the applicants also propose to protect the most steeply sloped southern portion of the site in a commonly owned open space tract. The City Council further finds and determines that the applicants proposal to deed restrict the proposed open space Lot 6 from further development and to provide Conditions, Covenants and Restrictions (CC&R's) to provide for the necessary maintenance of the open space lot, including the implementation and maintenance of the approved fire prevention and control plan, and perpetual maintenance of required long term erosion control measures, represents adequate provisions for the maintenance of the open space. 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. Based on the detailed findings set forth herein, the detailed COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 10 findings of the Ashland Planning Commission and the findings in favor submitted by the applicant, 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. 9) Criterion: [ALVa 18.88.030.A.4.d.] ... That the 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 parcels to the north, east and west are similarly zoned and have recently been subdivided for development as part of the Strawberry Meadows subdivision. The undeveloped properties to the south are zoned WR Woodland Residential, and their further development is already severely constrained by the presence of slopes over 350/0 percent. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission and the findings in favor submitted by the applicant, 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. 10) Criterion: [ALVa 18.88.030.A.4.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 City Council finds and determines that the applicants proposal to deed restrict the proposed open space Lot 6 from further development and to provide Conditions, Covenants and Restrictions (CC&R' s) to provide for the necessary maintenance of the open space lot, including the implementation and maintenance of the approved fire prevention and control plan, and perpetual maintenance of required long term erosion control measures, represents adequate provisions for the maintenance of the open space. All 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. Contrary to opponent's assertions, adequate provision for maintenance of the common area is met. The code expressly recognizes maintenance by an association and passive recreation. The July 2, 2008 arguments of the applicant on this point are incorporated herein by this reference. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission and the findings in favor submitted by the applicant, 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. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 11 11) Criterion: [ALVa 18.88.030.A.4.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 (RR-.5-P) zone. The site has a base density of five units (4.62 acres x 1.2 dwelling units per acre = 5.544 units), including the existing single family home already in place on the proposed Lot 4. Five units are proposed on six lots. Lot six is a common area open space tract. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission as well as the detailed findings in support submitted by the applicant, 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. 12) Criterion: [ALVa 18.88.030.A.4.g.] . .. The development complies with the Street Standards. Development is proposed to comply with the street standards except as requested in the exception below. The City Council finds that no new streets are proposed with the proposed application, and that the proposed lots will take access from the existing Strawberry Lane and Hitt Road rights-of-way. A condition has been added to require that sidewalks and street tree installation be completed along a small portion of the subject property's Strawberry Lane frontage where they are lacking, and an Exception to Street Standards has been requested by the applicants to end street improvements on Hitt Road at the relocated gate past the driveway of Lot 5 rather than extending them to the southern boundary of the project. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission as well as the detailed findings in support submitted by the applicant, 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. 13) Criterion: [ALVa 18.62.040.1.] The criteria for a Physical Constraints Review permit are described in Chapter 18.62.040.1 as follows: 1. Through the application of the development standards of this chapter, the potential impacts to the property and nearby areas have been considered, and adverse impacts have been minimized. 2. That the applicant has considered the potential hazards that the development may create and implemented measures to mitigate the potential hazards caused by the development. 3. That the applicant has taken all reasonable steps to reduce the adverse impact on the environment. Irreversible actions shall be considered more seriously than reversible actions. The Staff Advisor or Planning COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 12 1- Commission shall consider the existing development of the surrounding area, and the maximum permitted development permitted by the Land Use Ordinance. The City Council finds that potential impacts and hazards have been considered and that adverse impacts will be minimized through the proposed subdivision's design and the associated mitigation measures recommended by the project geotechnical expert. The applicants have provided a geotechnical study which concludes that the proposed subdivision and associated site grading are considered to be feasible with respect to the stability of the subsurface and slope conditions observed on site. This report includes recommendations for necessary site preparation, retaining, and erosion control, and proposes an inspection schedule to insure that these recommendations are properly implemented during site work. The more steeply sloped areas at the southern end of the site will be preserved as commonly owned open space, and protected from future development, and development of the proposed Lot 5, which includes slopes in excess of 25 percent within its building envelope, will be subject to a separate Physical Constraints Review. The Council finds that the applicants have taken all reasonable steps to reduce the adverse impacts of the development on the environment. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission as well as the detailed findings in support submitted by the applicant, 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. 14) Criterion: [ALVa 18.61.080.] The criteria for a Tree Removal Permit are described in Chapter 18.61.080 as follows: A. Hazard Tree: The Staff Advisor shall issue a tree removal permit for a hazard tree if the applicant demonstrates that a tree is a hazard and warrants removal. 1. A hazard tree is a tree that is physically damaged to the degree that it is clear that it is likely to fall and injure persons or property. A hazard tree may also include a tree that is located within public rights of way and is causing damage to existing public or private facilities or services and such facilities or services cannot be relocated or the damage alleviated. The applicant must demonstrate that the condition or location of the tree presents a clear public safety hazard or a foreseeable danger of property damage to an existing structure and such hazard or danger cannot reasonably be alleviated by treatment or pruning. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 13 --,---- 2. The City may require the applicant to mitigate for the removal of each hazard tree pursuant to AMC 18.61.084. Such mitigation requirements shall be a condition of approval of the permit. B. Tree that is Not a Hazard: The City shall issue a tree removal permit for a tree that is not a hazard if the applicant demonstrates all of the following: 1. The tree is proposed for removal in order to permit the application to be consistent with other applicable Ashland Land Use Ordinance requirements and standards. (e.g. other applicable Site Design and Use Standards). The Staff Advisor may require the building footprint of the development to be staked to allow for accurate verification of the permit application; and 2. Removal of the tree will not have a significant negative impact on erosion, soil stability, flow of surface waters, protection of adjacent trees, or existing windbreaks; and 3. Removal of the tree will not have a significant negative impact on the tree densities, sizes, canopies, and species diversity within 200 feet of the subject property. The City shall grant an exception to this criterion when alternatives to the tree removal have been considered and no reasonable alternative exists to allow the property to be used as permitted in the zone. Nothing in this section shall require that the residential density be reduced below the permitted density allowed by the zone. In making this determination, the City may consider alternative site plans or placement of structures or alternate landscaping designs that would lessen the impact on trees, so long as the alternatives continue to comply with other provisions of the Ashland Land Use Ordinance. 4. The City shall require the applicant to mitigate for the removal of each tree granted approval pursuant to AMC 18.61.084. Such mitigation requirements shall be.a condition of approval of the permit. The City Council finds the request for a Tree Removal Permit to remove 13 trees six-inches or larger in diameter at breast height (d.b.h.), including one significant 18-inch d.b.h. oak tree meets the applicable approval criteria in 18.61.080. These trees are located within the proposed building envelopes, and all other trees on site are to be preserved. The Council finds that the COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 14 removals have been requested in order to permit the application to be consistent with other applicable Ashland Land V se Ordinance requirements and standards in attempting to minimize site disturbance associated with the subdivision, will not have significant negative impacts to the site or surroundings, and that the removal of the significant oak will be mitigated either on- site or off-site as provided in the ordinance at the time of removal. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission as well as the detailed findings in support submitted by the applicant, 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. 15) Criterion: [ALVa 1.88.050.F.] The criteria for an Exception to Street Standards are described in 18.88.050.F as follows: 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 Options Chapter. As referenced above, Chapter purposes include the following: 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 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 City Council finds that the proposed Exception to Street Standards to allow the applicants to COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 15 end street improvements at the relocated gate near the driveway of Lot 5 rather than extending them to the southern boundary of the project meets the applicable criteria in Chapter 18.88. The installation of the full public street improvements including sidewalks would require that significant site disturbance along, more than 300 feet of the Hitt Road right-of-way in a steeply- sloped and heavily- wooded area which the applicants have proposed to protect as one of the site's principal natural features. The Council finds this site disturbance contrary to the protection of natural features and the steep slopes and construction costs constitute and represent demonstrable difficulty given the unique aspects of the site and its proposed use. The future development of properties to the south is constrained by steep slopes, and the Exception requested aids in the preservation and protection of the sloped areas on the project site. An existing gate is in place on Hitt Road to control public access to a city-owned water tank on the property immediately south of the project site, and will be slightly relocated to accommodate the driveway for the proposed Lot 5. The application proposes to ensure adequate fire protection through the installation of fire sprinklers in all homes and the implementation of fire prevention and control plans. The applicants will also install a new fire hydrant on Hitt Road. The applicants have previously provided easement access and trail improvements across the southern portion of the subject property to provide a pedestrian link between Hitt Road and the nearby Birdsong Lane, and have agreed to sign in favor of any future improvements to Hitt Road. The applicants have also proposed to provide additional off-street parking space for each of the proposed lots to address visitor parking demand, and the Council also finds that additional on-street parking spaces should be identified on Hitt Road at the time of Final Plan submittal in order to ensure adequate fire access in the wildfire interface and to off-set on-street parking that would otherwise have been provided if Hitt Road were extended to the boundary of the proposed subdivision. The Council finds that the proposed Exception is the minimum necessary to alleviate the difficult as paved access is proposed to be provided to the last developable lot in the development, and its driveway placement has been planned to avoid further disturbance of the steeply sloped portions of the site in a manner consistent with the purpose and intent of the chapter. Finally, nothing in the Ashland Street Standards compels an applicant to create an alley as proposed by opponent. The arguments of the applicant (July 2,2008) directly refute this assertion and are incorporated herein by this reference. As noted, the exception to street standards is actually sought to terminate the improvement to Hitt road based on demonstrable difficulty - steep slopes and protection of existing natural features. Given the limited impact of the proposed development (five units - one existing), the connectivity standards are not violated by reliance on existing streets in this outlying area. Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 16 Commission as well as the detailed findings in support submitted by the applicant, 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. V. OTHER ALLEGATIONS BY APPELLANTS Prior LID participation The City Council finds that the issue of the applicants' participation in the completed Strawberry Lane Local Improvement District (LID) is not relevant to the approval criteria applicable to the current request. As noted, under the Code and applicable state law, reassessment is prohibited when the assessment has been paid in full. 18.88.010 Purposes and Intent. In relation to a request for a street exception under AMC 18.88.050.F., the Purpose and Intent of the Performance Standard Chapter is an approval criterion. This is so, only because it is specifically referenced as a standard in that section. The City Council finds and determines that the Purpose and Intent section is not an approval standard outside the context of a street exception. Opponent's challenge to compliance with the purpose and intent section is based on inter alia: (1) the size of the proposed lot 1; (2) "architectural creativity"; (3) "aesthetically pleasing" and (4) impact on the "neighbourhood." Because these challenges are not in the context of the street exception, they are simply not valid or cognizable challenges under the Code. The Council further finds and determines that the opponent's arguments about the interpretation of lot coverage are in fact directly related to increasing the size of lot 1 to address the above referenced non-code criteria concerns. Inadequate Trees The arguments submitted by the applicant on July 2, 2008 are specifically incorporated herein to and adopted by the Council to rebut opponent's argument that additional tress are required. VI. ORDER In sum, the City Council concludes that the proposal represented in Planning Action 2008-00182 the proposal for Outline Plan approval to develop a six-lot, five-unit subdivision; an Exception to Street Standards; a Physical Constraints Review permit; and removal of 13 trees greater than six-inches in diameter at breast height (d.b.h.) including one significant tree, an 18-inch d.b.h. oak, is in full compliance with applicable approval criteria and is supported by competent substantial evidence contained in the record. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 17 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 #2008- 00182, 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 #2008-00182 is denied. The following are the conditions and they are attached to the approval: 1) That all proposals of the applicant are conditions of approval unless otherwise modified herein. 2) All conditions of the geotechnical report prepared by Amrhein Associates, Inc. and dated October 12, 2007, including but not limited to the inspection schedule, shall be conditions of approval unless otherwise modified herein. 3) That all proposed lots shall be subject to Solar Access Standard A unless 1) materials are provided with the Final Plan submittal demonstrating that an individual lot has a negative north slope in excess of 15 percent which would render it subject to Solar Access Standard B; or 2) a Solar Access Variance is applied for and approved for the individual lots concurrently with Final Plan approval. Solar setback calculations shall be submitted with each building permit to demonstrate compliance with the applicable standards, and shall include identification of the required solar setbacks with supporting formula calculations and elevation or cross-section drawings clearly labeling the height of the solar producing point(s) from the identified natural grade. 4) That all measures installed for the purposes of long-term erosion control, including but not limited to vegetative cover, rock walls, retaining walls and landscaping shall be maintained in perpetuity on all areas in accordance with 18.62.089.B.7. 5) That prior to Final Plan approval: a) Engineering for the utility plan including but not limited to the water, sewer, storm drainage and electric facilities shall be submitted. 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, and locations of all primary and secondary electric services including line locations, transformers (to scale), cabinets, meters and' all other necessary equipment. Transformers and cabinets shall be located in areas least visible from streets, while considering the access needs of the Electric COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 18 Department. Any required private or public utility easements shall be delineated on the utility plan. b) An Electric Distribution Plan shall be coordinated with the Ashland Electric Department, and shall be included in the utility plan with the Final Plan submittal. c) A drainage plan including necessary final engineering for the private lot stormwater detention systems and any off-site storm drain system improvements shall be provided. d) The engineering for sidewalk improvements to complete sidewalk installation along the subject property's full Strawberry Lane frontage shall be provided with the Final Plan submittal. e) The recommendations from the March 6, 2008 meeting of the Ashland Tree Commission, where consistent with applicable standards, shall be incorporated into the Final Plan submittal's Landscaping, Irrigation, and Tree Protec,tion and Removal Plans. f) A draft copy of the CC&R's and the applicants' proposed Deed Restrictions shall be provided. The CC&R's shall describe responsibility for the maintenance of all commonly-owned open space including but not limited to the implementation and maintenance of the approved fire prevention and control plan, and perpetual maintenance of required long term erosion control measures. The CC&R's shall note that any deviation from the approved Tree Removal and Protection Plan must receive written approval from the City of Ashland Planning Department. The CC&R's and Deed Restrictions shall be recorded concurrently with the final plat. g) The overall lot coverage for the subdivision as a whole shall be limited to no more than 20 percent. At the time of final plan submittal, the applicants shall provide a breakdown, by square footage, of the allowed lot coverage allocated to each lot and demonstrating that the overall subdivision's lot coverage. does not exceed the 20 percent allowed in the RR-.5 zoning district. h) That written verification from the project geotechnical expert shall be provided with the Final Plan submittal indicating that the revised six-lot subdivision configuration and associated improvements are consistent wi th the original report. i) That a landscape and irrigation plan addressing the re-vegetation of cut and fill slopes required in the geotechnical report shall be provided with the Final Plan submittal. j) That in addition to the third off-street parking space proposed to be provided on each of Lots 1-5 by the applicants, the Final Plat submittal COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 19 shall identify four on-street parking spaces to be provided on Hitt Road in bays near the relocated gate and between the driveways of Lots 2 and 4. 6) That prior to the issuance of an excavation permit: a) A preconstruction conference to review the requirements of the Physical Constraints Review Permit shall be held prior to site work, storage of materials, or the issuance of an excavation permit. The conference shall include the Ashland Planning Department, Ashland Building Department, the project engineer, project geotechnical experts, landscape professional, arborist, and contractor. The applicants or applicants' representative shall contact the Ashland Planning Department to schedule the preconstruction conference. b) 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 to inspect the trees to be removed and the installation of 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. c) That the temporary erosion control measures (i.e. fabric sediment fencing, straw bales, crushed rock pads, straw erosion control matting or plastic sheeting) shall be installed and maintained according to the approved plan prior to any site work, storage of materials, or issuance of an excavation permit. These measures shall be inspected and approved by the Staff Advisor prior to site work, storage of materials, or the issuance of an excavation permit. d) The applicants shall provide a performance bond, letter of credit or other financial guarantee in an amount equal to 120 percent of the value of the erosion control measures necessary to stabilize the site. 7) That prior to the signature of the final survey plat: a) All easements for sewer, water, drainage, electric, streets or public pedestrian access shall be indicated on the final survey plat as required by the City of Ashland. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 20 I~-'-.'-- b) Street trees, located one per 30 feet of street frontage, shall be installed along the Strawberry Lane street frontage 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. c) Subdivision infrastructure improvements, including but not limited to utilities; driveways, driveway approaches and associated erosion control measures; the extension of curbs, gutters, paving and sidewalk improvements on Hitt Road between the end of the existing improvements and the relocated gate locatiop; and sidewalks and street trees on Strawberry Lane shall be installed according to approved plans prior to the signature of the final survey plat. The Hitt Road improvements beyond the driveway of Lot 5 shall be sufficient to accommodate the placement of parking bays to accommodate two parking spaces and associated vehicular circulation, and shall be shown in the Final Plan submittal. d) That the installation of driveway approaches shall be completed according to city standards under permit from the Public Works/Engineering Department and any necessary inspections approved. e) The existing sidewalk on Hitt Road shall be extended to the northerly edge of the Lot 5 driveway's approach. f) Electric services shall be installed underground to serve Lots 1-5. At the discretion of the Staff Advisor, a bond may be posted for the full amount of underground service installation (with necessary permits and connection fees paid) as an alternative to installation of service prior to signature of the final survey plat. In either case, the electric service plan shall be reviewed and approved by the Ashland Electric Department and Ashland Engineering Division prior to installation. g) That the sanitary sewer laterals and water services including connection with meters at the street shall be installed for Lots 1-5. h) That Amrhein Associates, Inc. shall inspect the site according to the inspection schedule of the engineering geology report dated October 12, 2007 provided with the application. Prior to signature of the final survey plat, Amrhein Associates, Inc. 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 were conducted by the project geotechnical expert periodically throughout the project. COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 21 i) The landscaping and irrigation for re-vegetation of cut/fill slopes and erosion control shall be installed in accordance with the approved plan prior to signature of the final survey plat. Vegetation shall be installed in such a manner as to be substantially established within one year of installation. j) The applicants shall sign an agreement to participate in the future cost of street improvements for Hitt Road, including but not limited to sidewalks, curbs, gutters, paving, and storm drains. k) That the applicants shall complete the relocation of the gate at the end of the improvements on Hitt Road to the southern extent of the street improvements. The relocation of the gate will be coordinated with the City of Ashland Water Department. 8. That prior to the issuance of a building permit: a) Individual lot coverage calculations including ,all impervious surfaces shall be submitted with each building permit to demonstrate compliance with the lot coverage allocated to each lot. Building footprints, walkways, driveways including the flag drive for Lot 3, parking areas, and any impervious surfaces shall be counted for the purpose of lot coverage calculations. b) 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. c) Building permit submittals shall clearly demonstrate compliance with the applicants' proposed "Elevation Height Limits" by providing cross- sections or elevation drawings with building heights and elevations above sea level clearly labeled. d) That a Physical and Environmental Constraints Permit for Hillside Development shall be applied for and approved in accordance with 18.62.040 for the development of Lot 5 prior to submission or issuance of a building permit. 9. That prior to the issuance of a certificate of occupancy: a) That the requirements of the Fire Department, including that approved addressing shall be installed prior to combustible construction; that a fire prevention and control plan shall be implemented and maintained; and COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 22 that fire apparatus access, fire .sprinklers as proposed by the applicants, and a fire hydrant shall be installed, shall be addressed. b) All exterior lighting shall be directed on the property and shall not illuminate adjacent proprieties. c) For Lot #3, the applicants shall provide mitigation for the removal of Tree #31 through on-site replanting, off site replanting, or payment in lieu of planting as provided for in AMC 18.61.084. d) Driveways greater than 50 feet in length, which are considered by definition to be flag drives and thus subject to the flag drive standards, shall be constructed according to flag drive requirements that a 12-foot paved width and IS-foot clear width be maintained, and that parking spaces be configured so that vehicles can turn and exit to the street in a forward manner. Ashland City Council Approval , \~ Signature authorized and approved by the full Council this l day of November, 2008 Date:/I/Y-Of_ COUNCIL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Page 23