HomeMy WebLinkAbout2008-243 Findings - LUBA 2007-113
BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
December 2, 2008
LUBA 2007-113
[In the Matter of P A 2006-02354]
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FINDINGS OF FACT
CONCLUSIONS OF LAW
AND ORDER ON REMAND
This matter comes before the City Council for the City of Ashland on remand from a June 3,2008 decision of the
Oregon Land Use Board of Appeals [LUBA No 2007-113], following the Oregon Court of Appeals action on
October 1, 2008 affirming LUBA 's decision without opinion. [Case A139273]. The nature and scope of this
remand is limited to a single assignment of error. Under the Third Assignment of Error, LUBA found:
Because the city does not demonstrate that there is a "demonstrable difficulty" under ALUO
18.88.050(F)(A), the exception to the street standards should not have been approved. The third
assignment of error is sustained. The city's decision is remanded. [LUBA No. 2007-113, Opinion, page 15J
Accordingly, this matter was returned to the City Council for deliberation on December 2, 2008. The Council
elected not to receive additional testimony, argument, or evidence and to make the decision based. on the existing
record. Following deliberations and in accordance with LUBA's direction under the Third Assignment of Error
(Opinion pages 13 -15, attached hereto and made a part hereof by this reference), the City Council finds and
determines that the criterion for approval of the requested street exception in Planning Action 2006-02354,
specifically the requirement to show demonstrable difficulty under AMC 18.88.050(F)(A), has not been met by the
application. Accordingly, based on the record before the Council, the request in P A 2006-02354 to construct a
curbside sidewalk in lieu of a parkrow sidewalk is hereby DENIED. The August 7, 2007 Findings of Fact,
Conclusions of Law and Order documents, for Planning Action 2006-02354, together with the referenced or
incorporated findings documents, are hereby modified to strike findings of compliance concerning the exception to
street standards and to reflect denial of the exception for the reasons stated or referenced herein. [Said findings and
conclusions are deemed stricken whether specifically identified herein or not, however such findings are primarily
located on pages 6-7 of the August 7, 2007 Council [mdings and page 5 of the February 13, 2007 Planning
Commission [mdings.] . The August 7,2007 Findings of Fact, Conclusions of Law and Order document is further
modified to reflect DENIAL of the street exception on page 13 under "Final Order" and to reflect imposition of
the following additional condition of approval, which will control over inconsistent proposals or conditions
contained in the approval documents and application materials:
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That the public sidewalk improvement on Glenn Street shall comply with the Ashland Street Standards for
Parkrow sidewalks and shall be installed prior to issuance of the certificate of occupancy. The site plan and
landscape plan shall be modified accordingly, and submitted to the Ashland Planning Division prior to
issuance of an excavation or building permit. A public pedestrian easement shall be granted for the area of
the sidewalk outside of the public street right-of-way. Additionally, evidence of approval of the Oregon
Department of Transportation for any work in the jurisdiction of the state shall be submitted.
In all other respects, the incorporated August 7, 2008 Findings of Fact Conclusions of Law and Order, for Planning
P A 2006-02354
N. Main St. & Glenn St.
Page 1
Action 2006-02354, as approved by the City Council, reviewed and upheld by LUBA and the Oregon Court of
Appeals, remains unchanged, unaltered and in full force and effect, and said final approval documents shall evidence
the Ashland City Council's final land use approval of Planning Action 2006-02354, except as modified herein.
Planning Action 2006-02354 stands approved as set forth in the August 7, 2007 approval documents, except for the
street exception denial outlined herein; further nothing in this decision on remand denying the street exception and
imposing the above condition is intended to re-open for debate issues which were raised, or could have been raised
in the now concluded appeals of P A 2006-02354.
Ashland City Council Approval
Date:
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The above signature was duly authorized an approved by the City Council on December 2, 2008
Approved as to form:
Date: ]} <::.Z z.ctJ6
P A 2006-02354
N, Main 81. & Glenn 81.
Page 2
THIRD ASSIGN:MENT OF ERROR
2 The subject property is located on the corner of an arterial street, North Main Street,
3 and a neighborhood street, Glenn Street. There is already a curbside sidewalk along the
4 North Main Street frontage, but no sidewalk along the approximately 50-foot length of the
5 Glenn Street frontage. The applicable sidewalk standards for the Glenn Street frontage c~ll
6 for a parkrow sidewalk, which requires a seven-foot wide strip of landscaping between the
7 curb and sidewalk. The city granted the applicant an exception to the street standards to
8 allow a curbside sidewalk along the Glenn Street frontage. Petitioners argue that the city
9 improperly granted the exception.
10 Initially, the city argues that petitioners failed to preserve the issue below and it is
11 therefore waived. ORS 197.763(1); ORS 197.835(3). Petitioners argue that they raised the
12 issue ofparkrow sidewalks at the January 9, 2007, ~nd May 1,2007, public hearings. At the
13 January 9, 2007 hearing~ petitioners argued that the parkrow si4ewalks should be required.
14 That was sufficient to raise the issue.
15 ALVO 1 8.88.050(F) provides that an exception to street standards may be granted if
16 all of the following circumstances are found to exist:
17 "A. There is demonstrable difficulty in meeting the specific requirements
18 of this chapter due to a unique or unusual aspect of the site or
19 proposed use of the site;
20 "B. The variance. will result in equal or superior transportation facilities
21 and connectivity;
22 "C. The variance is the minimum necessary to alleviate the difficulty; and
23 "D. The variance is consistent with the stated Purpose and Intent of the
24 Performance Standards options Chapter."
25 The city findings state that the applicant satisfied all four requirements under ALVO
26 18.88.050(F):
27 ''The City Council fmds and determines that the proposed development meets
28 the approval criteria for an Exception to the Street Standards to install a
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] curbside sidewalk on the Glenn St. property frontage. There is demonstrable
2 difficulty in meeting the specific requirements of this chapter due to the
3 combination of several physical characteristics of the site and existing
4 sidewalk system on Glenn St. - the length of the property frontage on Glenn
5 S1., the location of the driveway and the existing curbside sidewalk on Glenn
6 St. adjacent to the property to the east. * * * A curbside sidewalk is in place
7 on N. Main St. and the comer ofN. Main St. and Glenn St. The opportunity
8 for a parkrow on the Glenn St. frontage is limited to approximately 50 feet in
9 length between the wheelchair ramp at the comer and the proposed driveway
10 apron near the eastern property line. A transition from a curbside sidewalk to
II a sidewalk with a parkrow uses approximately ten lineal feet. One transition
12 would need to be installed from the comer and another transition to the
13 curbside before the driveway. * * * After the transitions to and from the
14 curbside sidewalk would be installed, there would be a relatively short length
15 of parkrow installed on the Glenn St. property frontage. * * * The curbside
16 sidewalk will provide a more direct route from the comer of N. Main St. and
17 Glenn 81. to the existing curb sidewalk adjacent to the property. * * *"
18 Record 7.
19 Petitioners challenge the city's findings on a number of the requirements of ALVa
20 18.88.050, but we need only address ALva 18.88.050(F)(A), which is dispositive. .ALVa
2] ] 8.88.050(F)(A) requires the city to demonstrate that there is a "demonstrable difficulty in
22 meeting" the specific sidewalk requirement. The reasons listed by the city include the
23 existence of a curbside sidewalk on the North Main Street Frontage of the property, the
24 existence of a curbside sidewalk on the adjacent property on the Glenn Street frontage, the
25 fact that the transitions from curbside to parkrow sidewalks will take up a portion of the
26 Glenn Street frontage leaving only a short section of parkrow sidewalk, and a curbside
27 sidewalk would provide a more dire'ct route between the frontages on the property. We agree
28 with the city that all of those factors may support a conclusion that little benefit will result by
29 requiring a small segment of parkrow sidewalk between two much larger segments of
30 curbside sidewalks. But the applicable approval standard is "demonstrable difficulty" not
31 whether the regulation to be avoided by t}:le exception will produce little benefit in this case.
32 The requirement imposed by ALVO 18.88.050(F)(A) is that there must be a demonstrable
33 difficulty in meeting the requirement. All of the reasons cited by the city that demonstrate
34 that a parkrow sidewalk in this case will produce little benefit. But none of those reasons
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demonstrate that it would be "demonstrabl[y] difficult" to install a parkrow sidewalk. The
2 city. has identified no "demonstrable difficulty" in constructing the parkrow sidewalk.
3 Because the city does not demonstrate that there is a "demonstrable difficulty" under ALVa
4 18.88.050(F)(A), the exception to the street standards should not have been approved.
5 The third assignment of error is sustained.
6 The city's decision is remanded.
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BEFORE THE CITY COUNCIL
CITY OF ASHLAND, JACKSON COUNTY, OREGON
AUGUST 7, 2007
DECISION ON RECONSIDERATION: LUBA 2007-113
In the Matter of an Appeal of Planning Action 2006-02354, a
Request for Site Review Approval to Construct a Two-story
building for the property located at the southern corner of the
intersection of North Main St. and Glenn Street. An exception to
the street standards is requested to install a curbside sidewalk
on the Glenn Street property frontage. A variance is requested
to reduce the special setback requirement for front yards for
properties abutting an arterial street from twenty to ten feet,
within the City of Ashland, Jackson County, Oregon.
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) FINDINGS OF FACT
) CONCLUSIONS OF LAW
) AND ORDER
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Applicant: Raymond J. Kistler, Architecture.
I. NATURE OF PROCEEDINGS
This matter comes before the City Council for the City of Ashland for a de novo appeal hearing. The appeal is from a
March 13, 2007 decision of the City of Ashland Planning Commission approving inter alia a request for a site review
approval, exception to street standards and variance to the special setback on the subject property located at the
intersection of N. Main Street and Glenn Street.
After a mandatory pre-application conference was held, the subject applications for site review approval, street exceptions and
a variance were filed by the applicant with the Planning Department on December 8, 2006. The application was deemed
incomplete. Additional materials were submitted by the applicant and the application was deemed complete on January 2,
2007.
Notification of the public hearing before the Planning Commission on January 9, 2007, was mailed, pursuant to Chapter
18, Ashland Land Use Ordinance to area property owners and affected public agencies. Notice of the January 9,2007,
hearing was also published in the Ashland Daily Tidings. On January 9, 2007, the Planning Commission conducted a
public hearing and considered the oral and written testimony presented, the staff report and the record as a whole. The
application was continued to the Planning Commission meeting on February 13, 2007. On February 13, 2007, after the
close of the public hearing and process and the close of the record, the City's Planning Commission deliberated and
approved the application, subject to conditions pertaining to appropriate development of the Property. On March 13,2007,
the Findings, Conclusions, and Orders of City's Planning Commission were duly signed by the Chairperson of City's
Planning Commission. The Planning Commission's findings are attached hereto as Exhibit "A" and are specifically
incorporated herein and made a part hereof by this reference. (In the event of conflict between the Planning Commission
findings and Council findings, Council findings control). An effort was made to request of the Planning Commission Chair
pursuant to Planning Commission rules to bring forth a motion for reconsideration but the Chair declined, citing no new
material facts.
On March 20, 2007, and on March 23, 2007, the Ashland City Council met at duly noticed public meetings and discussed
calling up the Planning Commission's March 13,2007 decision. Following discussion, by a vote of 3-1, the Council voted
to call up the appeal. As stated by the City Attorney, the reason for the appeal would be to provide guidance to the
Planning Commission on balancing between the special setback standards and the historic standards as they relate to the
variance criteria. The Council finds and determines that this alone is the basis for the Council initiated appeal. Prior to the
8-7-07 Decision on Reconsideration: LUBA No. 2007-113 Page 1 PA 2006-02354: N, Main S1. & Glenn 51.
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discussion, Councilors disclosed ex parte communications and made affirmative statements of impartiality.
Notification of the de novo public hearing before the City Council was mailed, pursuant to ALUO to area property owners
and affected public agencies. Notice of the appeal hearing was also published in the Ashland Daily Tidings. On May 1,
2007, the City Council conducted a public hearing in the City Council chambers; during the public hearing before the
Council, testimony and exhibits were offered and received, in addition to the exhibits and documents reflected in the record
before Council. Pursuant to a request from a citizen the record was left open for seven days and the matter was
continued to May 9, 2007. After the conclusion of testimony at the continued hearing, the hearing was closed and the
record was closed. The applicant waived the right to submit final written argument. The Council deliberated and approved
the application in file 2006-02354, with conditions, upholding the decision of the Planning Commission. On June 5, upon
consideration of the written decision, the Council voted to withdraw its appeal and adopted findings. On June 19,2007 the
Council's findings were to be reconsidered; however a LUBA appeal was filed thwarting that effort. The City withdrew its
decision from LUBA for reconsideration pursuant to OAR 661-010-0021(1). On August 7,2007 following deliberations the
Council decided not to withdraw, took jurisdiction and decided the matter, adopting the 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 # 2006-02354 is real property located within the City of Ashland ("City"), and described
in the County Tax Assessor's maps as Tax lot 3600 of 39-1 E-05DA is located at the southern comer of the intersection of N.
Main St. and Glenn St.
3) The zoning of the Property is E-1 (Employment).
4) The applicant in Planning Action # 2006-02354 is: Raymond J. Kistler, Architecture, ("Applicant).
III. JURISDICTION
The May 1, 2007 Council Communication quotes the following ALUO procedural requirement:
Appeal Proceedings (18.108.110):
A. Appeals of Type I decisions for which a hearing has been held, of Type II decisions or of Type III decisions
described in section 18.108.060.A.1 and 2 shall be initiated by a notice of appeal filed with the City Administrator.
The standard Appeal Fee shall be required as part of the notice. Failure to pay the Appeal Fee at the time the
appeal is filed is a jurisdictional defect.
1. The appeal shall be filed prior to the effective date of the decision of the Commission.
2. The notice shall include the appellant's name, address, a reference to the decision sought to be
reviewed, a statement as to how the appellant qualifies as a party, the date of the decision being
appealed, and the specific grounds for which the decision should be reversed or modified, based on the
applicable criteria or procedural irregularity.
3. The notice of appeal, together with notice of the date, time and place of the hearing on the appeal by
the Council shall be mailed to the parties at least 20 days prior to the hearing.
4. The appeal shall be a de novo evidentiary hearing.
5. The Council may affirm, reverse or modify the decision and may approve or deny the request, or grant
approval with conditions. The Council shall make findings and conclusions, and make a decision based on
the record before it as justification for its action. The Council shall cause copies of a final order to be sent
to all parties participating in the appeal.
B. Appeals may only be filed by parties to the planning action. "Parties" shall be defined as the following:
1. The applicant.
2. Persons who participated in the public hearing, either orally or in writing. Failure to participate in the
8-7-07 Decision on Reconsideration: LUBA No, 2007-113 Page 2 PA 2006-02354: N. Main $1. & Glenn 81.
public hearing, either orally or in writing, precludes the right of appeal to the Council.
3. The Council, by majority vote.
4. Persons who were entitled to receive notice of the action but did not receive notice due to error.
In addition to the appeal provisions provided above, ALUO 18.108.070 (5) provides:
The City Council may "call up" any planning action for a public hearing and decision upon motion and majority
vote, provided such vote takes place in the required time period, as outlined below.
No appeal was filed by the applicant or by any other person who participated in the public hearing within the appeal period.
The only basis for Council consideration of this action is the Council's own majority vote on March 23, 2007 to appeal the
matter. The Council action on March 23, 2007 was as follows:
Councillor Hartzell/Navickas m/s that Council appeal PA #2006-02354 for a hearing. DISCUSSION:
Councillor Hardesty voiced support for calling this forward. Councillor Chapman shared his concern that they are
getting dangerously close to prejudging this. Councillors Hartzell and Navickas clarified their general concerns are
not with this specific proposal. Roll Call Vote: Councillors Hardesty, Navickas and Hartzell, YES. Councillor
Chapman, NO. Motion passed 3-1.
The record of this proceeding reflects no notice of appeal filed with the City Administrator within the appeal period nor does
the record reflect filing of the standard appeal fee (or transfer of funds) during this period. Unless excused, this failure to
strictly follow the local appeal requirements is a jurisdictional defect. Siuslaw Rod and Gun Club v. City of Florence.
(Where a local filing requirement is "jurisdictional," we stated, neither LUBA nor the local government may disregard that
requirement.) 48 Or LUBA 163. 171-72 (2004) Brievoael v. Washinaton County. 24 Or LUBA 63. 68. aff'd 117 Or ADD 195.
843 P2d 982 (1992) McKay Creek Valley Assoc. v. Washinaton County. 16 Or LUBA 690.693 (1988).
Type I, II and III decisions identified in ALUO 18.108.070 (2)-(4) all provide that appeals shall be "as provided in section
18.108.11 O.A." The action approved by the Planning Commission includes Type II decisions and is subject to
18.108.110A. Again, no privately initiated appeal was filed in compliance with this section. The only appeal was the City
initiated appeal pursuant to ALUO 18.108.070 (5) (quoted above) which references the Council's ability to "call up" a
decision. The council's appeal was not as representative of any interested party or group. The Council finds and
determines that ALUO 18.108.070 (5) is an independent source of appeal authority and that the appeal requirements and
other restrictions in ALUO 18.108.11 OA do not apply to the Council. By way of explanation, certain of the "appeal"
requirements in ALUO 18.108.11 OA simply do not make sense when applied to the Council calling up a decision, e.g.
specifying error will invite allegations of prejudgment. In addition, the provisions of 18.108.110A requiring the Council to
make a decision on the appeal do not make sense if the Council is the appellant. Accordingly, the Council finds and
determines that the Council has complied with the Code requirement to hear this appeal, as the Council by majority vote,
within the appeal period called the decision up for hearing. Further, the Council, on reconsideration, does not exercise its
right to withdraw its own appeal of the Planning Commission's decision, and proceeds herein to make the final decision
consistent with the Council's oral decision to approve the application and uphold the Planning Commission's decision.
IV. FINDINGS APPLYING APPLICABLE CODE CRITERIA
1) The Council finds and determines that the relevant approval criteria are found in or referenced in the following
provisions of the Ashland Land Use Ordinances.
· The criteria for Site Review approval in 18.72.070 are as follows:
A. All applicable City ordinances have been met or will be met by the proposed development.
B. All requirements of the Site Review Chapter have been met or will be met.
C. The development complies with the Site Design Standards adopted by the City Council for implementation of
this Chapter.
D. That adequate capacity of City facilities for water, sewer, paved access to and through the development,
8-7-07 Decision on Reconsideration: LUBA No. 2007-113
Page 3
PA 2006-02354: N. Main St. & Glenn St.
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electricity, urban storm drainage, and adequate transportation can and will be provided to and through the
subject property. All improvements in the street right-of-way shall comply with the Street Standards in Chapter
18.88, Performance Standards Options.
· The criteria for an Exception to the Street Standards are described in 18.88.090 as follows:
A. There is demonstrable difficulty in meeting the specific requirements ofthis 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.
· The criteria for a Variance in 18.100.020 are as follows:
A. That there are unique or unusual circumstances which apply to this site which do not typically apply
elsewhere,
B. That the proposal's benefits will be greater than any negative impacts on the development of the adjacent
uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the City.
C. That the circumstances or conditions have not been willfully or purposely self-imposed.
2) The Council finds that it has received all information necessary to make a decision based on the Staff Report, public
hearing testimony and the exhibits received, and the whole record.
3) The Council finds and determines that this request for a Site Review approval to construct a two-story building, the
request for an Exception to the Street Standards to install a curbside sidewalk on the Glenn S1. property frontage and the
request for a variance to reduce the special setback requirement for front yards for properties abutting arterial streets from
twenty to ten feet, meets all applicable criteria for approval described or referenced in the ALUO sections above. This finding
is supported by the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, attached hereto
and specifically incorporated herein by this reference, the detailed findings submitted by the applicant specifically incorporated
herein by this reference, as well as by competent substantial evidence in the whole record.
4) Criteria: [ALUO 18.72.070] The criteria for Site Review approval are as follows:
A. All applicable City ordinances have been met or will be met by the proposed development.
B. All requirements of the Site Review Chapter have been met or will be met.
C. The development complies with the Site Design Standards adopted by the City Council for
implementation of this Chapter.
D. That adequate capacity of City facilities for water, sewer, paved access to and through the
development, electricity, urban storm drainage, and adequate transportation can and will be provided
to and through the subject property. All improvements in the street right-of-way shall comply with the
Street Standards in Chapter 18.88, Performance Standards Options
The City Council finds and determines that the proposed development meets the approval criteria for Site Review
approval. An office is a permitted use in the Employment (E-1) zoning district. The E-1 zoning district requires at least 65
percent of the gross floor area of the ground floor to be used for permitted or special permitted uses.. In this case, all of the
ground floor building square footage is designated as office use which is a permitted use in the E-1 zone. The site is
located in the R-Overlay which allows residential units as a special permitted use. Residential units are permitted at 15
units per acre. The residential density of the site is two units (.136Ac x 15 = 2.04 units). The proposal is to use the second
story for office spaces, two residential units, or a combination of office space and a residential unit.
The E-1 zoning district does not require standard setbacks from property lines unless a parcel abuts a residential zoning
district. The subject parcel abuts a residential district at the rear (east) of the site. A ten foot per story setback is required
for a rear yard abutting a residential district. The proposed building is 50 feet from the rear (east) property line, and
therefore exceeds the required 20-foot setback requirement for the two-story building. The building is angled at the
8-7-07 Decision on Reconsideration: LUBA No. 2007-113 Page 4 PA 2006-02354: N, Main 81. & Glenn 51.
northwest corner of the lot adjacent to the intersection of N. Main St. and Glenn St. so that the structure is located outside
of the vision clearance area as required. The proposed building height is approximately 26 feet which is under the
maximum building height of 40 feet in the E-1 zoning district. The proposal will result in 22% of landscaping on site which
exceeds the 15 percent minimum for the E-1 zoning district.
The City Council finds and determines that the proposed development meets the off-street automobile parking
requirements of Chapter 18.92, Off-Street Parking with the attached condition of approval number 19. The original
application required six off-street parking spaces for 2,700 square feet of general office (2,700 sq. ft./450 = 6 spaces).
The off-street parking requirement is satisfied by providing five spaces on site and with one off-street parking credit
available for the two spaces on the Glenn St. property frontage, The revised proposal, which is the approved submittal,
increased the building square footage by approximately three percent or 89 square feet. As a result, the off-street parking
requirement is increased from six to seven spaces (2,789 sq. ft. / 450 = 6.20). In addition, the applicant revised the second
floor to have the flexibility to be used as office spaces, two residential units, or a combination of the two. Here again, the
off-street parking requirement is slightly over six spaces increasing the required number of off-street spaces to seven. The
Council finds that the building square footage and combination of uses on the second floor can be revised so that the
required number of off-street spaces does not exceed the six spaces provided without a significant effect to the site or
building design. This is addressed with the attached condition of approval number 19. Two bicycle parking spaces are
required, and the site plan shows the two covered bicycle parking spaces located under the exterior stairs in the front of
the building.
The City Council finds that the public utilities and transportation system have adequate capacity to serve the development.
Public facilities and utilities are in place to service the project in the N. Main St. and Glenn St. rights-of-way. Water, sewer
and storm drain services are available in Glenn St. N. Main St. and Glenn St. provide access to the site. N. Main St. is a
state highway under the jurisdiction of the Oregon Department of Transportation (ODOT). N. Main St. is classified as a
Boulevard (arterial) and Glenn St. is classified as a Neighborhood Street. Sidewalks are in place on the N. Main St.
frontage and a portion of the Glenn St. frontage. The applicant will install a sidewalk on the Glenn St. property frontage
connecting the existing sidewalk to the east of the property on Glenn St. to the existing sidewalk on N. Main St. The
bicycle facilities are a shared lane on both streets. Bus service is provided on N. Main St.
The City Council finds and determines that the project is in compliance with the Basic Site Review Standards for
Commercial Development, Detail Site Review Standards and Historic District Design Standards. The project lies within the
Detail Site Review Zone and the Skidmore Academy Historic District.
The proposal meets the Basic Site Review Standards for Commercial Development. The primary orientation of the
building is to North Main Street using a recessed entry feature. The front entrance is accessed by the public sidewalk as
required. Parking is located behind the building as required. The proposal will result in 22% of landscaping on site which
exceeds the 15 percent minimum for the E-1 zoning district. The parking area includes 19.4 percent of the area in
landscaping which exceeds the minimum requirement of seven percent of the total parking area in landscaping,
Additionally, one tree is required for each seven parking spaces to provide a canopy effect. Two trees are proposed on the
north end of the parking area and the application states that the existing walnut in the southeast corner will also shade the
parking area. Two street trees are proposed behind the sidewalk on the N. Main St. and three trees are proposed behind
the sidewalk on Glenn St.
The Council finds and determines that the proposed building satisfies the Detail Site Review requirements. The recessed
entry is generously sized, and accented with structural steel columns. The front (west) wall ground floor includes 44
percent in glazing and the Glenn St. (north) wall includes 37 percent in glazing which exceeds a minimum of 20 percent of
the wall are is required to be in display areas, windows and doorways. The front entrance to the building is emphasized by
the entry alcove and awning. The Detail Site Review Standards prohibit bright or neon paint colors on the building exterior.
The applicant provided exterior building materials and colors including Moss Green stucco for the second floor, Mountain
Brown polished-face CMU block for the ground floor, Charcoal Black split-faced CMU block for the base and Vintage III
(dark grey) Zincalume Roofing.
The Council finds and determines that the proposed building meets the Historic District Design Standards. At an average
height of 28.5 feet to the ridge of the roof, the proposed building is a similar height to the one and a half and two-story
structures surrounding the subject property. The building is broken into two modules which creates a residential scale and
8-7-07 Decision on Reconsideration: LUBA No. 2007-113
Page 5
PA 2006-02354: N. Main St. & GlelUl St.
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reduces the mass. On the Glenn St. side of the building, the ground floor store front exterior treatment is wrapped around
the corner of the building. In addition, an awning system has been added to the ground floor windows on the sides and
rear of the building, The awnings and change in materials on the Glenn St. elevation serve to provide relief in the massing.
The mass of the rear of the building is broken up the recess in the middle of the building. The proposed fac;ade line is in
the same plane as the facades of buildings in the vicinity, (See further discussion under variance criteria incorporated
herein by this reference. The assertion by opponents that the Council is obligated to define the historic fac;ade line in
reference to any specific map or date is expressly rejected. The streetscape in this block includes a mix of buildings
considered both historic and non-historic, all of which have a mix of setbacks. As such, the historic fac;ade line in this
streetscape is ill defined. The Council finds that the fac;ade line encompassing all structures in this streetscape meets the
intent of the site design standards by avoiding violation of the existing setback pattern. The Council identified the positive
recommendation of the Historic Commission as one of the factors tending to support this interpretation. Similarly, the
attempt to define the fac;ade line solely by reference to building immediately adjacent to the subject property is expressly
rejected. The reliance upon an interpretation of the word "adjacent" in other parts of the Code, in prior findings, is not
binding in this section which requires a broader analysis. The Council incorporates the findings in the May 1, 2007 Council
Communication authored by the Planning Director in support of this finding. The steep pitched gable roofs match the
surrounding historic buildings, The windows have a vertical orientation which is compatible with the fac;ade patterns of
surrounding historic structures. The base of the building is differentiated by using a different material with a different color
(Le. split-faced block in Charcoal Black). The two street facing volumes directed towards N. Main St. match the orientation
to N. Main S1. of buildings in the area. The ground floor front doors are located in a generously-sized entry alcove which is
connected to a plaza and walkway area to the public sidewalk on N. Main St. Finally, the proposed building design is a
contemporary interpretation with different materials and architectural details. As required, the building is clearly not
imitating the style of an older period.
Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically
incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in
the whole record, the Council finds and determines that this criterion is met.
5) Criteria: [ALUO 18.88.090] The criteria for an Exception to the Street Standards are as follows:
A. There is demonstrable difficulty in meeting the specific requirements ofthis 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.
The City Council finds and determines that the proposed development meets the approval criteria for an Exception to the
Street Standards to install a curbside sidewalk on the Glenn St. property frontage. There is demonstrable difficulty in
meeting the specific requirements of this chapter due to the combination of several physical characteristics of the site and
existing sidewalk system on Glenn St. - the length of the property frontage on Glenn St., the location of the driveway and
the existing curbside sidewalk on Glenn S1. adjacent to the property to the east. The unique or unusual aspects of the
site, discussed below under variances, are incorporating herein by this reference. A curbside sidewalk is in place on the
south side of Glenn S1. from the eastern boundary of the subject property to Orange S1. Additionally, a curbside sidewalk
is in place on N. Main S1. and the corner of N. Main St. and Glenn St. The opportunity for a parkrow on the Glenn S1.
frontage is limited to approximately 50 feet in length between the wheelchair ramp at the comer and the proposed driveway
apron near the eastern property line. A transition from a curbside sidewalk to a sidewalk with a parkrow uses
approximately ten lineal feet. One transition would need to be installed from the comer and another transition to the
curbside before the driveway. The driveway is required to be in this location because the Site Design and Use Standards
require the parking to be located behind the building. After the transitions to and from the curbside sidewalk would be
installed, there would be a relatively short length of parkrow installed on the Glenn St. property frontage. The Exception to
the Street Standards to allow a curbside sidewalk will result in a sidewalk that provides the equivalent pedestrian facility
connection as would a sidewalk with a parkrow. The curb side sidewalk will provide a more direct route from the corner of
N. Main S1. and Glenn S1. to the existing curb sidewalk adjacent to the property. The Exception to the Street Standards to
8-7-07 Decision on Reconsideration: LUBA No. 2007-113 Page 6 PA 2006-02354:N. Main St. & Glenn St.
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allow a curbside sidewalk is the minimum variance to alleviate the difficulty by maintaining a sidewalk connection on the
Glenn St. property frontage. The Exception to the Street Standards to allow a curbside sidewalk is consistent with the
Purpose and Intent of the Performance Standards Options Chapter 18.88 in that the chapter "is to allow an option for
more flexible design that is permissible under the conventional zoning codes."
Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically
incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in
the whole record, the Council finds and determines that this criterion is met.
6) Criteria: [ALUO 18.100.020] The criteria for a Variance are as follows:
A. That there are unique or unusual circumstances which apply to this site which do not typically apply
elsewhere.
B. That the proposal's benefits will be greater than any negative impacts on the development of the
adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan of the
City.
c. That the circumstances or conditions have not been willfully or purposely self-imposed.
The City Council finds and determines that the proposed development meets the approval criteria for a Variance to reduce
the special setback requirement for front yards for properties abutting an arterial street from twenty to ten feet.
The Special Setback requirement (18.68.050) is as follows:
To permit or afford better light, air and vision on more heavily traveled streets and on streets of substandard width,
to protect arterial streets, and to permit the eventual widening of hereinafter named streets, every yard abutting a
street, or portion thereof, shall be measured from the special base line setbacks listed below instead of the lot line
separating the lot from the street.
. Street Setback: East Main Street, between City limits and Lithia Way 35 feet
. Ashland Street (Highway 66) between City limits and Siskiyou Boulevard 65 feet
. Also, front yards for properties abutting all arterial streets shall be no less than twenty (20) feet, with the
exception of the C-1-D district.
. That there are unique or unusual circumstances which apply to this site which do not typically apply
elsewhere.
The unique or unusual circumstances which apply to the site are the surrounding historic development pattern, the corner
lot location, the bend in N. Main St., the configuration of the lot, (specifically the shallow depth) and access to the site. The
proposed variance to permit a ten-foot setback from N. Main S1. matches the fac;ade line in the vicinity. The average
distance to the historic front fac;ade lines in this area is approximately ten feet. The subject property is a highly visible
location on one of the main gateways in the City and the prominence is accentuated by the location on a corner lot and the
bend in N. Main St. From the perspective oftraveling south on N. Main St., the side of the building facing Glenn St. will be
visible. The site has a short lot depth for a commercially zoned piece of property. There are commercial and employment
zoned properties throughout Ashland (e.g. A St., Clear Creek Dr. and Russell Dr.) that allow similar mixed-use types of
development, and these areas have been configured with adequate depth and area to accommodate parking on site.
Additionally, alley systems and shared driveway systems are in place in these _ same commercial and employment zoned
developments that provide vehicle access and back-up areas outside of the individual lots and building envelopes. There
is 50 feet available between the back of the building and the rear (east) property line. The building footprint can not be
moved closer to the back (east) property line because the parking area and landscape buffer are at the minimum
dimensions. The parking is required to be behind or to the side of the building. Finally, the safest access to the site is
from Glenn St. Glenn St. has lower traffic volumes and better visibiliY than N. Main St.
. That the circumstances or conditions have not been willfully or purposely self-imposed.
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In January 2007, LUBA stated:
In Krishchenko /, we found inexplicable the city's apparent conclusion that petitioner's desire to partition the
subject property is a "self-created" hardship. We observed that, "[i]f the mere desire to develop property at a
density allowed under applicable zoning laws is a self-created hardship, then it is doubtful that any variance to
development standards could ever be allowed under.., or similar variance standards"
In response Krischenko I, the City of Canby identified "a specific action by petitioner, [that created the hardship] not merely
a general desire to develop property that all variance applicant's presumably share." LUBA stated:
The City apparently understands a "self-created" hardship to exist for purposes of CMC ... when the applicant for a
variance has taken an action in the past that is inconsistent with proposed development of the property that
requires a variance. We cannot say that that view of CMC ... is inconsistent with the text, purpose or policy
underlying that code provision, .... .. .the city concluded, petitioner's choice in 2002 to consolidate the two lots to
enlarge his existing backyard was inconsistent with, and had the effect of abandoning any expectation under
common law or the city's variance procedures to obtain future access...
Similarly, the City Council finds and determines that the ALUO variance criteria require that the circumstances or
conditions causing the hardship be willfully or purposely self-imposed, The mere general desire to develop the property
that all applicants share, is not sufficient for willful self-imposition. An affirmative action by the applicant, (like the lot
consolidation in Krishchenko) which occurred in the past, (i.e. past tense) which is inconsistent with or creates the
circumstances or conditions is required. In this case, the unusual characteristics of the site, being the surrounding
historic development pattern, the comer location, the bend in N. Main St., the configuration of the lot (shallow depth) and
access to the site have not been created by an affirmative action of the applicant. Therefore, the circumstances
contributing to the request for a variance are not self-imposed. In addition, the ALUO variance criteria are more
permissive than traditional, (i.e. variance purposes reference "practical difficulties") as opposed to strict variance terms
such as "necessary for the preservation of property rights."
The City Council expressly disagrees with the interpretation of the variance criterion proffered by opponents as it relates to
self-imposed hardships. The Council finds and determines a hardship is not self imposed merely because there may be an
alternative way to build a development without the specific variance requested. In this case, the alternative plan would
require an administrative variance to address compliance with historic standards. There is no requirement in Chapter
18.100, Variances, to pursue the lesser of competing variances, (e.g. a standard requiring the minimum variance
necessary such as that used in the Administrative Variance to the Site Design and Use Standards, ALUO 18.72.0890.0,
and Exception to the Street Standards, ALUO 18.88.090). The "minimum variance necessary" is simply not an approval
standard. Similarly, the applicant's stated resignation to the fact that he could develop an alternative, less desirable plan,
and therefore, does "not need this variance", for example, for the preservation of a property right, is not an approval
criterion applicable to the decision, Neither the enthusiasm (or lack thereof) of the applicant nor the personal desires of the
applicant to maximize use of the property in terms of density and intensity are approval criterion for a variance. Clearly, in
this case, the difference in square footage (intensity) between the plans is inconsequential. This case is not so crude a
choice between compliance with historic standards or compliance with the special setback; the Council strives to give
meaning to each and every provision of the Code, reconciling conflicts between competing provisions when necessary.
The City Council finds and determines that the hardship is not self created in this case. The Council further finds that
when compliance with all the provisions of the City's Development Code creates essentially a no-win situation, the
applicant has not created the hardship. See Sommer v. Josephine County (No self-created hardship when lot line
adjustment approval condition required rezoning and new zoning district setback precluded proposed development
necessitating variance). The City Council, like the City Planning Commission made an informed decision between
variance altematives based upon the peculiarities of the site and superior design.
. That the proposal's benefits will be greater than any negative impacts on the development of the
adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan
of the City.
8-7-07 Decision on Reconsideration: LUBA No, 2007-113
Page 8
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The positive benefits of the proposal are maintaining the historic fayade line, streetscape and street enclosure of N. Main
St. The Historic District Design Standards require historic fayade lines of streetscapes to be maintained by locating front
walls of new buildings in the same plane as the facades of adjacent buildings. The front fac;ade line is an important
component in creating a historic development pattern and historic streetscape. If the proposed building is setback 20 feet
from the front property line, the building will be set back further from the street than the existing historic front fayade line on
N. Main St. in the vicinity. As a result, the proposed building setback 20 feet from N. Main St. will stand out from the
historic fayade line and will not be compatible with the historic development pattern.
Another positive benefit of the proposed building location at ten feet from the front property line is maintaining the
streetscape and street enclosure of N. Main St. - The proposed building setback at the required 20-foot special setback for
front yards abutting arterials is too far from the sidewalk to provide pedestrians visual interest from the front of the building
or a sense of safety from moving vehicles. The streets that pedestrians find most comfortable and safe feeling are those
where buildings front directly on or near the street. In contrast, when buildings are set farther from the street pedestrians
tend to feel isolated and unprotected. Additionally, the building setback at 20 feet will be further back from the street than
most of the front facades on the east side of N. Main St. in the vicinity thereby making the street more open in this location.
The building front fayade should maintain the historic fayade line because vertical surfaces such as building fronts close to
the street encourage drivers to slow down.
To discount the benefits of the variance, opponents of the variance argue that the historic fayade line is better maintained
without the variance; this argument is based on excluding construction any more recent than 45 years old. As noted
above, the Council rejects this interpretation.
Concerns were also raised that approval of the front yard variance may prevent the installation of bicycle lanes on N. Main
St. at a future date. County and city maps provide general information about the N. Main St. corridor. Based on county
assessor's maps, city aerial maps and the Ashland Street Standards, there appears to be adequate space between the
proposed building and the building on the opposite side of the street at 493 N. Main St. for a future reconstruction of N.
Main St. as a four-lane Boulevard including parkrows and bicycle lanes. Accordingly, this cannot be identified as a
negative impact. Additionally, the street corridor is partially located in the Skidmore Academy Historic District (i.e. from the
downtown to Maple St.). The Skidmore Academy Historic District is on the National Historic Register, and the associated
federal regulations could affect street widening projects in listed historic neighborhoods. The 20-foot setback intrudes into
some of the building footprints on both sides of N. Main St. A street widening project could potentially impact the character
of the historic district by reducing front yards and removing historic buildings, and thereby altering the historic development
pattern.
Accordingly, the benefits of the proposed variance will far outweigh any negative impacts on development of adjacent
uses. Finally, the intent and purpose of the variance Chapter includes avoiding practical difficulties caused by strict
application of the requirements of the Code. No use is allowed not in conformity with the Comprehensive Plan or Code for
the subject property,
Based on the detailed findings set forth herein, the detailed findings of the Ashland Planning Commission, specifically
incorporated herein by this reference, the findings presented by the applicant, as well as by competent substantial evidence in
the whole record, the Council finds and determines that this criterion is met.
V. QUALIFICATIONS OF MEMBERS
Alleged Bias and Prejudgment
Two parties submitted written bias and prejudgement challenges to the qualifications of Council members and the Mayor.
The speaker request provides that such challenges must be made in writing with supporting documentation. One
challenge to Councilors Hartzell and Navickas was submitted by citizen Mike Morris, with supporting evidence, a DVD of
the City Council's special meeting to consider the appeal. The other challenge was submitted by citizen Art Bullock
against the Mayor and Councilor Kate Jackson and included 17 points against the Mayor and 2 against Councilor Jackson.
Challenaes bv Mr. Bullock:
8-7-07 Decision on Reconsideration: LUBA No. 2007-113
Page 9
PA 2006-02354: N. Main St. & Glenn St.
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Mr. Bullock's submittal identifies the following legal standard in his written submittal:
Oregon Supreme Court: "The public interest in appearance of propriety over public interest in efficiency is so great
in judicial proceedings that readjudication is required regardless of whether decisions were fair when appearance
of impropriety is present" 1000 Friends of Oregon v, Wasco County Court, 304 Or. 76, 742 P,2d 39 1987.
The Council finds and determines that the standard identified by Mr. Bullock, the appearance of impropriety, is erroneous.
This is a quasi-judicial decision, not a judicial decision. In a quasi-judicial decision, a local decision maker must follow the
procedures applicable to the matter before it in a manner that does not prejudice the substantial rights' of the parties. The
substantial rights of the parties include 'the rights to an adequate opportunity to prepare and submit their case and a full
and fair hearing.' Muller v. Polk County. 16 Or LUBA 771. 775 (1988). An allegation of decision maker bias, accompanied
bv evidence of that bias, may be the basis for a remand under ORS 197.835(9)(a)(B). Halvorson Mason Corp. v. City of
Depoe Bay, 39 Or LUBA 702,710 (2001) Bias as discussed herein includes both prejudgment and personal bias.
In OreGon Entertainment Corv. v. City of Beaverton. 38 Or LUBA 440.445 (2000). affd 172 Or App 361.19 P3d 918
(2001 ). LUBA set out the standard for establishing decision maker bias:
"To demonstrate actual bias, 'petitioner has the burden of showing the decision maker was biased, or prejudged
the application, and did not reach a decision by applying relevant standards based on the evidence and argument
presented [during the quasi-judicial proceedings].'" (quoting SpierinG v. Yamhill County. 25 Or LUBA 695.702
(1993)).
In addition, this burden is significant. That is:
In order to succeed in a bias claim, petitioner must establish that the decision maker was incapable of making a
decision based on the evidence and arguments of the parties. Sparks v, City of Bandon. 30 Or LUBA 69. 74
(1995). Further, bias must be demonstrated in a clear and unmistakable manner. Schneider v. Umatilla County.
13 Or LUBA 281.284 (1985). See also Loveioy v. City of DeDoe Bay. 17 Or LUBA 51.66 (1988).
LUBA recently reviewed the impartiality exp~ctations of quasi-judicial decision makers:
As we have explained on many occasions, local quasi-judicial decision makers, who frequently are also elected
officials, are not expected to be entirely free of any bias. Friends of Jacksonville v. City of Jacksonville, 42 Or
LUBA 137, 141-44, affd 183 Or App 581, 54 P3d 636 (2002); Halvorson-Mason Corp. v. City of Depoe Bay, 39 Or
LUBA 702, 710 (2001); Oregon Entertainment Corp. v. City of Beaverton, 38 Or LUBA 440, 445-47 (2000), affd
172 Or App 361,19 P3d 918 (2001). To the contrary, local officials frequently are elected or appointed in part
because they favor or oppose certain types of development. 1000 Friends of Oregon v. Wasco Co. Court, 304 Or
76, 82-83, 742 P2d 39 (1987); Eastgate Theatre v. Bd. of County Comm'rs, 37 Or App 745, 750-52, 588 P2d 640
(1978). Local decision makers are only expected to (1) put whatever bias they may have to the side when deciding
individual permit applications and (2) engage in the necessary fact finding and attempt to interpret and apply the
law to the facts as they find them so that the ultimate decision is a reflection of their view of the facts and law
rather than a product of any positive or negative bias the decision maker may bring to the process. Wal-Mart
Stores, Inc. v. City of Central Point, 49 Or LUBA 697, 709-10 (2005), appeal pending. Heiller v. Josephine County
(LUBA 2005)
Procedurally, after the enumerated bias challenges by Mr. Bullock were summarized, the Mayor and Council Jackson both
made andlor agreed to the following statement of impartiality:
"I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will
make this decision based solely on the application of the relevant criteria and standards to the facts and evidence
in the record of this proceeding."
Other members of the Council were asked if they accepted the statement and all members did in fact accept the
impartiality of the Mayor and Councilor Jackson. No member requested removal based on ALUO Section 18.108.100(B).
8-7-07 Decision on Reconsideration: LUBA No, 2007-113
Page 10
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The Council finds and determines that the Mayor and Councilor Jackson are capable of making this decision and did
make their decision based upon the application of the facts in the record as applied to the relevant standards in the Code.
Any bias, if any exists at all, that the Mayor or Councilor Jackson may have had was placed to the side while the Mayor
and Council performed the duties of their office as related to this quasi-judicial decision. Roberts v. Clatsop County (While
alleged statements may indicate a certain predisposition, that is not enough to provide a basis for reversal or remand, in
light of his assertions that decision maker would consider the application on its merits and vote with an open mind.)
The Council finds and determines that Mr. Bullock has not demonstrated bias or prejudgement on the part of the Mayor of
Councilor Jackson in a clear and unmistakable manner. The allegations were not individually addressed at the hearing but
the Mayor and Councilor Jackson both stated the allegations were false and misleading. Several other members of the
Council noted the allegations were completely irrelevant and inappropriate to the proceedings.
For the most part, the allegations submitted by Mr. Bullock are unsupported with reliable verifiable evidence, although
certainly verifiable evidence in the form of City video or audio recordings, findings and minutes could have been submitted,
it was not provided. For example: (1) Mr. Bullock asserts personal attacks against him during the hearing on the
Schofield/Monte Vista LID. Mr. Bullock makes factual assertions and characterizations (e.g. "viciously attacked") in his
challenge, but no record of the Schofield LID proceeding, a public meeting, was submitted. No official minutes or other
official record was submitted. (2) Similarly, Mr. Bullock alleges that his bias challenge in the same proceeding was
arbitrarily limited to three minutes, yet no evidence no support this allegation was submitted. (3) Mr. Bullock also alleges in
the same hearing that he was denied a right to speak on the merits. Again, no evidence was submitted. (4) Again, Mr.
Bullock alleges he was denied a right to make oral presentations of bias and denied his right to speak, No evidence
supports this allegation. (5) Mr. Bullock attributes certain statements to the mayor, including pUblic pressure to stop him
from speaking and "shut him up". No verifiable evidence supports this allegation. (6) Again without verifiable evidence,
Mr. Bullock asserts another personal attack by the Mayor after the close of the record in the Schofield LID project, and
- further (7) asserts he had no right to rebut the statements of the mayor made during deliberations in that proceeding. (8)
Mr. Bullock alleged denial of an opportunity to make oral Conflict of Interest challenges from the floor during the Hellman
Bath hearing before the City Council in 2006. No evidence to verify this allegation was submitted, despite the existence of
written findings, minutes and DVD records of the unappealed decision. (9) Mr. Bullock alleges the Council and not the
mayor has the authority to control his conduct at meetings in making oral challenges from the floor. (Despite the Council's
adoption of Roberts Rules of Order and the clear authority of the Presiding Officer to control the conduct of non-members)
(10) Mr. Bullock again asserts the Mayor denied his right to orally make a conflict of interest challenge in the Helman
Baths project. (11) Mr. Bullock identifies an alleged error in the Helman Bath project related to his alleged right to point out
alleged errors from the floor. (12) Mr. Bullock alleges inter alia the mayor conspired to violate the 120 day rule in the Park
Street Condo case and blame him for the delay which led to the mandamus proceeding. These allegations are completely
unsupported. (13) Mr. Bullock alleges he reported misconduct by City employees in 2004 and was subjected to verbal
assaults. His allegations are unsupported by verifiable evidence. (14) Mr. Bullock alleges the Mayor prevented him from
presenting audio-visual matters in a 2006 meeting. This allegation is not supported with verifiable evidenced. (15) Mr.
Bullock asserts failure of the Mayor to supervise the Public Works Director. The allegation is irrelevant and
unsubstantiated. (16) Mr. Bullock alleges the Mayor is responsible for opposition to Mr. Bullock's position on the proposed
Charter amendment. This allegation is unsubstantiated.
As regards Councilor Jacksc;>n, Mr. Bullock makes several allegations, without verifialJle supporting evidence, that
Councilor Jackson (1) yelled at him during an encounter while Mr. Bullock was campaigning against the proposed Charter
amendment, a measure Councilor Jackson supported. Councilor Jackson acknowledged that they had contact and that
she was concerned for her safety given Mr. Bullock's behavior. Mr. Bullock also alleges that Councilor Jackson is
incapable of making the decision because she ignores the law and has prejudged this matter because she will ignore the
20 foot setback which is the subject of the variance. This allegation is unsubstantiated.
Mr. Bullock was merely a partiCipant in the proceedings below, and is not the applicant or appellant in this proceeding. His
position in his challenge appears to be that because the Mayor and Councilor Jackson have taken or have political
positions which are contrary to his positions, they should be disqualified from participation in any matter in which he
chooses to participate. In the case of the Mayor, Mr. Bullock's disagreement appears to be primarily in the area of the
proper manner for the conduct of quasi-judicial proceedings. The Council finds and determines that the Mayor and
Councilor Jackson are expected to have political positions as elected public officers. That their positions may at times be
contrary to political positions taken by Mr. Bullock, a citizen of the City of Ashland and that this fact does not demonstrate
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in a clear and unmistakable manner an inability on the part of these elected officials to apply the facts to the law in a quasi-
judicial matter before the City Council. The Councilor and Mayor declared their intent to apply the law to the evidence in
the record and performed their duty. As regards the conduct of public meetings, the Mayor, as presiding officer, has clear
authority to control the conduct of non-members. Nonmembers who disrupt public meeting may be removed pursuant to
Roberts Rules of Order or Criminal statutes, Mr. Bullock is not a member of the governing body, and must comply with the
directions of the presiding officer. That Mr. Bullock feels he should have more opportunity to participate in quasi-judicial
proceedings, specifically to orally making challenges to members or "points of order" from the floor, or question members
of the Council, is not personal bias against Mr. Bullock but simply the normal conduct of a public meeting by the Presiding
Officer. Mr. Bullock, as a non-member, cannot assert bias and prejudice based on denial of the rights and powers to him
of rights afforded duly elected members of the Council. The Council finds and determines that this challenge to the
qualifications of Councilor Jackson and Mayor Morrison is not well founded.
It is unfortunate that at times prejudicial or inflammatory material is introduced into the record of land use proceedings and
other government proceedings. Quasi-judicial decision makers, being human may be tempted to react to such material or
base the decision on improper matters. Accordingly, It is important that decision makers exercise discipline and set aside
such inflammatory or prejudicial matters and exercise their quasi-judicial duties properly. This can be especially difficult to
volunteer Council members in public service, when as in the challenge submitted by Mr. Bullock, is in the manner of a
personal attack. Accordingly, the Council expressly finds and determines that although Mr. Bullocks written materials are
inflammatory and prejudicial, the Council expressly rejects such improper considerations in applying the facts in the record
to the applicable standards in the ALUO.
Challenaes bv Mr. Morris:
A prejudgment challenge was made against Councilor's Eric Navickas and Councilor Cate Hartzell by Mike Morris.
Procedurally, atter the challenges were summarized, both Councilor Navickas and Hartzell made and/or agreed to the
following statement of impartiality:
"I have not prejudged this application and I am not prejudiced or biased by my prior contacts or involvement; I will
make this decision based solely on the application of the relevant criteria and standards to the facts and evidence
in the record of this proceeding."
Other members of the Council were asked if they accepted the statement and all members did in fact accept the
impartiality of the Councilors. No member requested removal based on ALUO Section 18.108.1 OO(B). The Council finds
and determines that Councilor Hartzell and Councilor Navickas are capable of making this decision and did make their
decision based upon the application of the facts in the record as applied to the relevant standards in the Code. Any bias, if
any exists at all, that the Councilors may have had was placed to the side while the Councilors performed the duties of
their office as related to this quasi-judicial decision. Roberts v, Clatsop County (While alleged statements may indicate a
certain predisposition, that is not enough to provide a basis for reversal or remand, in light of his assertions that decision
maker would consider the application on its merits and vote with an open mind.)
The Council finds and determines that Mr. Morris has not demonstrated bias or prejudgement on the part of the Councilors
in a clear and unmistakable manner, in light of the assertions of impartiality made by the members at the hearing. While
the allegations were not individually' addressed at the hearing, both Councilors specifically stated the they would make the
decision based on the applicable law and the evidence before them.
For the most part, the concise allegations of prejudgement submitted by Mr. Morris are well supported with reliable
verifiable evidence, that being the DVD of the City Council's public meeting to appeal the decision of the Planning
Commission. Mr. Morris identifies verifiable statements by time code made by Councilor Hartzell which indicate a pre-
disposition based on public safety concerns to maintain the twenty foot special setback. Similarly, Mr. Morris identifies
verifiable statements by time code made by Councilor Navickas which indicate a preference for the twenty foot setback
over historic standards, an issue in the variance portion of the appeal. On the basis of the verifiable statements made at
the public meeting to call up the appeal, the allegations of prejudgment on their face, without more, are substantial.
However, in the context of the actual appeal hearing, and the direct question to the Councilors of whether the Councilors
would set aside whatever predisposition or bias they had, and make the decision based upon the facts as applied to the
law, the Council finds and determines that the challenged members are qualified to make the decision and have properly
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PA 2006-02354: N. Main 51. & Glenn 81.
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exercised their duties in quasi-judicial proceedings as required by law.
VI. FINAL ORDER
In sum, the City Council concludes that the proposal represented in Planning Action 2006-02354, an application for Site Review
approval to an office building, an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property
frontage, and a Variance to reduce the special setback requirement for front yards for properties abutting arterial streets has
satisfied all relative substantive standards and criteria and is supported by evidence in the whole record.
Accordingly, based on the above Findings of Fact and Conclusions of Law, the incorporated findings of the Planning
Commission and the findings provided by the applicant, and based upon the evidence in the whole record, the City Council
hereby APPROVES Planning Action #2006-02354, subject to strict compliance with the conditions of approval, set forth
herein. Further, if anyone or more of the conditions below are found to be invalid, for any reason whatsoever, then
Planning Action #2006-02354 is denied. The following are the conditions and they are attached to the approval:
1) That all proposals of the applicant are conditions of approval unless otherwise modified here.
2) That the applicant shall submit an electric distribution plan including load calculations and locations of all
primary and secondary services including transformers, cabinets and all other necessary equipment. This
plan shall be reviewed and approved by the Ashland Electric Department prior to building permit submittal, and
the approved plan submitted with the building permit application. Additionally, the placement of any portion of
the structure in the public utility easement shall be reviewed and approved by the Electric Department.
Transformers and cabinets shall be located in areas least visible from streets and outside of vision clearance
areas, while consigering the access needs of the Electric Department.
3) That the engineered construction drawings for the public sidewalk improvement shall comply with
approved plans, and submitted for review and approval of the Ashland Planning and Engineering Divisions
prior to issuance of a building or excavation permit. The concrete color and surface finish shall be the city
standard in accordance with the Ashland Engineering Specifications. Additionally, evidence of approval of
the Oregon Department of Transportation for any work in the jurisdiction of the state shall be submitted
with the engineered construction drawings.
4) That the required pedestrian-scaled streetlight shall consist of the City of Ashland's commercial/historic
streetlight standard, and shall be included in the utility plan and engineered construction drawings for the
public sidewalk along Ashland Street. That the property owner shall install publrc pedestrian-scaled street
lights to City specifications on the N. Main St. and Glenn St. street frontages.
5) That a final utility plan for the project shall be reviewed and approved by the Engineering Division and Building
Divisions prior to issuance of abuilding permit. 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,
sewer mains and services, manholes and clean-outs, storm drainage pipes and catch basins.
6) That if a tire protection vault is required, the vault shall not be located in the sidewalk.
7) That all public improvements including but not limited to the sidewalk, street trees and street lighting shall be
installed in accordance with the approved plan prior to issuance of the certificate of occupancy.
8) That the plans submitted for the building permit shall be in substantial confor:mance with those approved as
part of this application. If the plans submitted for the building permit are not in substantial conformance with
those approved as part of this application, an application to modify this Site Review approval shall be
submitted and approved prior to issuance of a building permit.
9) That a Tree Protection Plan in accor9ance with the requirements of 18.61.200 shall be submitted for review
8-7-07 Decision on" Reconsideration: LUBA No. 2007-113 Page 13 PA 2006-02354: N. Main St. & Glenn St.
ou--o-,
and approval of the Staff Advisor with the building permit submittals. The Tree Protection Plan shall include an
analysis from the project landscape architect or certified arborist of the impact of the installation of the pervious
paving on the walnut tree to be preserved.
10) That the recommendations of the Ashland Tree Commission with final approval of the Staff Advisor shall
be addressed prior to the issuance of a building permit. The recommendations shall be included on a
revised tree protection plan, landscaping plan and final irrigation plan at the time of submission of building
permit. Landscaping and the irrigation system shall be installed in accordance with the approved plans
prior to issuance of the certificate of occupancy.
11) That a Verification Permit shall be applied for and approved by the Ashland Planning Division prior to site
work, building demolition, and/or storage of materials. The Verification Permit is to inspect the installation
of tree protection fencing for the walnut tree in the southeast comer of the property, The tree protection
shall be chain link fencing six feet tall and installed in accordance with 18.61.200.B.
12) That public utility easements on the property shall be shown on the building permit submittals. No portion
of the structure shall intrude into a public utility easement without approval by the Ashland Engineering
Division.
13) That the finished floor elevation (FFE) of the building shall be at a minimum, the same elevation as the
public sidewalk in front of the building in the N. Main Sf. right-of-way. Verification of the FFE being at or
above the elevation of the public sidewalk shall be submitted with the building permit for review and
approval by the Staff Advisor.
14) Thatmechanical equipment shall be screened from view from N. Main St. Location and screening of
mechanical equipment shall be detailed on the building permit submittals.
15) That the windows shall not be heavily tinted so as to prevent views from outside ofthe building into the interior
of the building.
16) That the building materials and the exterior colors shall be identified in the building permit submittals. Bright or
neon paint colors used extensively to attract attention to the building or use are prohibited in accordance with
the Detail Site'Review Standards.
17) That exterior lighting shall be shown on the building permit submittals and appropriately shrouded so there
is no direct illumination of surrounding properties.
18) That a comprehensive sign program in accordance with the requirements of Chapter 18.96 shall be
developed for the'building and submitted for review and approval with the building permit submittals. That
a sign permit shall be obtained prior to installation of new signage. Signage shall meet the requirements
of Chapter 18.96.
19) That the building size and number of residential units shall be revised so that the total number of required'
off-street parking spaces does not exceed the six spaces provided (Le. five on-site spaces and one on-
street parking credit).
20) That the recommendations of the Historic Commission with final approval of the Staff Advisor shall be
incorporated into the building permit submittals.
21) That the requirements of the Ashland Fire Department including fire apparatus access and fire hydrant
flow requirements shall be satisfied prior to issuance of a certificate of occupancy.
22) That the new structure shall meet Solar Setback B in accordance with Chapter 18.70 ofthe Ashland Land
Use Ordinance. Solar setback calculations shall be submitted with the building permit and include the
required setback with the formula calculations, an elevation or cross-section clearly identifying the height
8-7-07 Decision on Reconsideration: LUBA No, 2007-113 Page 14 PA 2006-02354: N. Main 81. & Glenn 81.
.------
of the solar producing point from natural grade and the solar setback in site plan view called out from the
solar producing point to the north property line.
23) That a seven foot bicycle and pedestrian easement shall be granted to the City of Ashland along North
Main that will allow the city, or designee, to construct, reconstruct, install, use, operate, inspect, repair,
maintain, remove and replace access improvements, including but not limited to street, sidewalk, bike path
and landscaping improvements. (The Applicant agreed to this condition)
Ashland City Council Approval
Decision on Reconsideration
Date:
Mayor John W. Morrison
Signature authorized and approved by the full Council this _ day of August, 2007
Approved as to form:
Date:
Ashland Interim City Attorney
8-7-07 Decision on Reconsideration: LUBA No. 2007-113
Page 15
P A 2006-02354: N, Main St. & Glenn St.
~d_
BEFORE THE PLANNING COMMISSION
February 13,2007
IN THE MATTER OF PLANNING ACTION #2006-02354, A REQUEST )
FOR SITE REVIEW APPROVAL TO CONSTRUCT A TWO-STORY ) FINDINGS,
BUILDING FOR THE PROPERTY LOCATED AT THE SOUTHERN CORNER ) CONCLUSIONS
OF THE INTERSECTION OF N. MAIN ST. AND GLENN ST. AN EXCEPTION ) AND ORDERS
TO THE STREET STANDARDS IS REQUESTED TO INSTALL A CURBSIDE )
SIDEWALK ON THE GLENN ST. PROPERTY FRONTAGE. A VARIANCE IS )
REQUESTED TO REDUCE THE SPECIAL SETBACK REQUIREMENT FOR )
FRONT YARDS FOR PROPERTIES ABUTTING AN ARTERIAL STREET FROM)
TWENTY TO TEN FEET. )
)
APPLICANT: Raymond J. Kistler Architecture )
RECITALS:
1) Tax lot 3600 of391E05DA is located at the southern corner of the intersection ofN. Main St. and Glenn
St. and is zoned E-1 (Employment).
2) The applicant is requesting Site Review approval to construct a two-story building. An Exception to the
Street Standards is requested to install a curbside sidewalk on the Glenn St. property frontage. A
Variance is requested to reduce the special setback requirement for front yards for properties abutting
arterial streets from twenty to ten feet. The site plan and building elevations are on file at the
Department of Community Development.
3) The criteria for Site Review approval are as follows:
A. All applicable City ordinances have been met or will be met by the proposed development.
B. All requirements of the Site Review Chapter have been met or will be met.
C. The development complies with the Site Design Standards adopted by the City Council for
implementation of this Chapter.
D. That adequate capacity of City facilities for water, sewer, paved access to and through the
development, electricity, urban storm drainage, and adequate transportation can and will be provided
to and through the subject property.
4) The criteria for an Exception to the Street Standards are described in 18.88.090 as follows:
P A 2006-02354
N. Main St. & Glenn St.
Page 1
EXHIBIT A
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.
5) The criteria for a Variance are as follows:
A. That there are unique or unusual circumstances which apply to this site which do not typically apply
elsewhere.
B. That the proposal's benefits will be greater than any negative impacts on the development of the
adjacent uses; and will further the purpose and intent of this ordinance and the Comprehensive Plan
of the City.
C. That the circumstances or conditions have not been willfully or purposely self-imposed.
6) The Planning Commission, following proper public notice, held Public Hearings on January 19,2007,
and February 13, 2007, at which time testimony was received and exhibits were presented. The
Planning Commission approved the Site Review, Exception to the Street Standards and Variance to the
Special Setback Requirement application subject to conditions pertaining to the appropriate
development of the site.
Now, therefore, the Planning Commission of the City of Ashland finds, concludes and recommends as
follows:
SECTION 1. EXHIBITS
For the purposes of reference to these Findings, the attached index of exhibits, data, and testimony
will be used.
Staff Exhibits lettered with an "S"
Proponent's Exhibits, lettered with a "P"
Opponent's Exhibits, lettered with an "0"
Hearing Minutes, Notices, Miscellaneous Exhibits lettered with an "M"
SECTION 2. CONCLUSORY FINDINGS
P A 2006-02354
N. Main St. & Glenn St.
Page 2
EXHIBIT A
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2.1 The Planning Commission finds that it has received all information necessary to make a
decision based on the Staff Report, public hearing testimony and the exhibits received.
2.2 The Planning Commission finds that the proposed development meets the approval
criteria for Sit~ Review approval. An office is a permitted use in the Employment (E-I) zoning
district. The E-l zoning district requires at least 65 percent of the gross floor area of the ground
floor to be used for permitted or special permitted uses. In this case, all of the ground floor
building square footage is designated as office use which is a permitted use in the E-I zone. The
site is located in the R-Overlay which allows residential units as a special permitted use.
Residential units are permitted at 15 units per acre. The residential density of the site is two
units (.I36Ac x 15 = 2.04 units). The proposal is to use the second story for office spaces, two
residential units, or a combination of office space and a residential unit.
The E-l zoning district does not require standard setbacks from property lines unless a parcel
abuts a residential zoning district. The subject parcel abuts a residential district at the rear (east)
of the site. A ten foot per story setback is required for a rear yard abutting a residential district.
The proposed building is 50 feet from the rear (east) property line, and therefore exceeds the
required 20- foot setback requirement - for the two-story building. The building is angled at the
northwest comer of the lot adjacent to the intersection ofN. Main St. and Glenn St. so that the
structure is located outside of the vision clearance area as required. The proposed building
height is approximately 26 feet which is under the maximum building height of 40 feet in the E-I
zoning district. The proposal will result in 22% of landscaping on site which exceeds the 15
percent minimum for the E-I zoning district.
The Planning Commission finds the proposed development meets the off-street automobile
parking requirements of Chapter 18.92, Off-Street Parking with the attached condition of
approval number 19. The original application required six off-street parking spaces for 2,700
square feet of general office (2,700 sq. ft. /450 = 6 spaces). The off-street parking requirement
is satisfied by providing five spaces on site and with one off-street parking credit available for
the two spaces on the Glenn St. property frontage. The revised proposal, which is the approved
submittal, increased the building square footage by approximately three percent or 89 square
feet. As a result, the off-street parking requirement is increased from six to seven spaces (2,789
sq. ft. /450 = 6.20). In addition, the applicant revised the second floor to have the flexibility to
be used as office spaces, two residential units, or a combination of the two. Here again, the off-
street parking requirement is slightly over six spaces increasing the required number of off-street
spaces to seven. The Commission finds that the building square footage and combination of uses
on the second floor can be revised so that the required number of off-street spaces does not
exceed the six spaces provided without a significant effect to the site or building design. This is
addressed with the attached condition of approval number 19. Two bicycle parking spaces are
required, and the site plan shows the two covered bicycle parking spaces located under the
exterior stairs in the front of the building.
P A 2006-02354
N, Main St. & Glenn St.
Page 3
EXHIBIT A
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2.3 - The Planning Commission finds that the public utilities and transportation system have
adequate capacity to serve the development. Public facilities and utilities are in place to service
the project in the N. Main St. and Glenn St. rights-of-way. Water, sewer and storm drain
services are available in Glenn St. N. Main St. and Glenn St. provide access to the site. N. Main
St. is a state highway under the jurisdiction of the Oregon Department of Transportation
(ODOT). N. Main St. is classified as a Boulevard (arterial) and Glenn St. is classified as a
Neighborhood Street. Sidewalks are in place on the N. Main St. frontage and a portion of the
Glenn St. frontage. The applicant will install a sidewalk on the Glenn St. property frontage
connecting the existing sidewalk to the east of the property on Glenn St. to the existing sidewalk
on N. Main St. The bicycle facilities are a shared lane on both streets. Bus service is provided
on N. Main St.
2.4 The Planning Commission finds that the project is in compliance with the Basic Site
Review Standards for Commercial Development, Detail Site Review Standards and Historic
District Design Standards. The project lies within the Detail Site Review Zone and the Skidmore
Academy Historic District.
The proposal meets the Basic Site Review Standards for Commercial Development. The
primary orientation of the building is to North Main Street using a recessed entry feature. The
front entrance is accessed by the public sidewalk as required. Parking is located behind the
building as required. The proposal will result in 22% of landscaping on site which exceeds the
15 percent minimum for the E-l zoning district. The parking area includes 19.4 percent of the
area in landscaping which exceeds the minimum requirement of seven percent of the total
parking area in landscaping. Additionally, one tree is required for each seven parking spaces to
provide a canopy effect. Two trees are proposed on the north end of the parking area and the
application states that the existing walnut in the southeast comer will also shade the parking
area. Two street trees are proposed behind the sidewalk on the N. Main St. and three trees are
proposed behind the sidewalk on Glenn S1.
The Commission finds the proposed building satisfies the Detail Site Review requirements. The
recessed entry is generously sized, and accented with structural steel columns. The front (west)
wall ground floor includes 44 percent in glazing and the Glenn St. (north) wall includes 37
percent in glazing which exceeds a minimum of 20 percent of the wall are is required to be in
display areas, windows and doorways. The front entrance to the building js emphasized by the
entry alcove and awning. The Detail Site Review Standards prohibit bright or neon paint colors
on the building exterior. The applicant provided exterior building materials and colors including
Moss Green stucco for the second floor, Mountain Brown polished-face CMU block for the
ground floor, Charcoal Black split-faced CMU block for the base and Vintage III (dark grey)
Zincalume Roofing.
P A 2006-02354
N, Main 81. & Glenn S1.
Page 4
EXHIBIT A
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The Commission finds that the proposed building meets the Historic District Design Standards.
At an average height of28.5 feet to the ridge of the roof, the proposed building is a similar
height to the one and a half and two-story structures surrounding the subject property. The
building is broken into two modules which creates a residential scale and reduces the mass. On
the Glenn St. side of the building, the ground floor store front exterior treatment is wrapped
around the comer of the building. In addition, an awning system has been added to the ground
floor windows on the sides and rear of the building. The awnings and change in materials on the
Glenn St. elevation serve to provide relief in the massing. The mass of the rear of the building is
broken up the recess in the middle of the building. The proposed fa((ade line is in the same plane
as the facades of buildings in the vicinity. The steep pitched gable roofs match the surrounding
historic buildings. The windows have a vertical orientation which is compatible with the fa((ade
patterns of surrounding historic structures. The base of the building is differentiated by using a
different material with a different color (i.e. split-faced block in Charcoal Black). The two street
facing volumes directed towards N. Main St. match the orientation to N. Main 8t. of buildings in
the area. The ground floor front doors are located in a generously-sized entry alcove which is
connected to a plaza and walkway area to the public sidewalk on N. Main St. Finally, the
proposed building design is a contemporary interpretation with different materials and
architectural details. As required, the building is clearly not imitating the style of an older
period.
2.5 The Planning Commission finds that the propose development meets the approval criteria
for an Exception to the Street Standards to install a curbside sidewalk on the Glenn St. property
frontage. A curbside sidewalk is in place on the south side of Glenn St. from the eastern
boundary of the subject property to Orange St. Additionally, a curbside sidewalk is in place on
N. Main S1. and the comer ofN. Main 81. and Glenn St. The opportunity for a parkrow on the
Glenn St. frontage is limited to approximately 50 feet in length between the wheelchair ramp at
the comer and the proposed driveway apron near the eastern property line. A transition from a
curbside sidewalk to a sidewalk with a parkrow uses approximately ten lineal feet. One
transition would need to be installed from the comer and another transition to the curbside before
the driveway. After the transitions to and from the curbside sidewalk would be installed, there
would be a relatively short length of parkrow installed on the Glenn 81. property frontage.
2.6 The Planning COmhlission finds that the proposed development meets the approval
criteria for a Variance to reduce the special setback requirement for front yards for properties
abutting an arterial street from twenty to ten feet.
The unusual circumstances which apply to the site are the surrounding historic development
pattern, the comer lot location, the bend in N. Main 8t., the configuration of the lot, and access to
the site. The proposed ten-foot setback from N. Main St. matches the fa((ade line in the vicinity.
The average distance to the historic front fa((ade lines in this area is approximately ten feet. The
subject property is a highly visible location on one of the main gateways in the City and the
P A 2006-02354
N. Main St. & Glenn St.
Page 5
EXHIBIT A
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prominence is accentuated by the location on a comer lot and the bend in N. Main St. From the
perspective of traveling south on N. Main St., the side of the building facing Glenn St. will be
visible. The site has a short lot depth for a commercially zoned piece of property. There are
commercial and employment zoned properties throughout Ashland (e.g. A St., Clear Creek Dr.
and Russell Dr.) that allow similar mixed-use types of development, and these areas have been
configured with adequate depth and area to accommodate parking on site. Additionally, alley
systems and shared driveway systems are in place in these same commercial and employment
zoned developments that provide vehicle access and back-up areas outside of the individual lots
and building envelopes. There is 50 feet available between the back of the building and the rear
(east) property line. The building footprint can not be moved closer to the back (east) property
line because the parking area and landscape buffer are at the minimum dimensions. The parking
is required to be behind or to the side of the building. Finally, the safest access to the site is from
Glenn St. Glenn St. has lower traffic volumes and better visibility than N. Main St.
The unusual characteristics of the site being the surrounding historic development pattern, the
comer location, the bend in N. Main St., the configuration of the lot and access to the site have
not been created by the applicant. Therefore, the circumstances contributing to the request for a
variance are not self-imposed.
The Planning Commission disagrees with the interpretation of the variance criterion proffered by
opponents as it relates to self-imposed hardships. The Planning Commission finds and
determines a hardship is not self imposed merely because there may be an alternative way to
build a development without variance requested. In this case, the alternative proposed required
an administrative variance to address compliance with historic standards. There is no
requirement in Chapter 18.1 00 Variances to pursue the lesser of competing variances, (e.g. a
standard requiring the minimum variance necessary such as that used in the Administrative
Variance to the Site Design and Use Standards, ALUa 18.72.0890.D, and Exception to the
Street Standards, ALUa 18.88.090). It is true that a hardship may be deemed self imposed
because it is created by the personal desires of the applicant to maximize use of the property in
terms of density and intensity. Clearly, in this case, the difference in square footage between the
plans is inconsequential. This case is not so crude a choice; the Planning Commission strives to
give meaning to each and every provision of the Code, reconciling conflicts between competing
provisions when necessary. The Planning Commission finds and determines that a hardship is .
not self created when compliance with all the provisions of the City's Development Code creates
essentially a no-win situation. The Planning Commission made an informed decision between
variance alternatives based upon the peculiarities of the site and superior design.
The positive benefits of the proposal are maintaining the historic fa<;ade line, streetscape and
street enclosure ofN. Main St. The Historic District Design Standards require historic fa<;ade
lines of streetscapes to be maintained by locating front walls of new buildings in the same plane
as the facades of adjacent buildings. The front fa<;ade line is an important component in creating
PA 2006-02354
N. Main St. & Glenn St.
Page 6
EXHIBIT A
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a historic development pattern and historic streetscape. If the proposed building is setback 20
feet from the front property line, the building will be set back further from the street than the
existing historic front fayade line on N. Main St. in the vicinity. As a result, the proposed
building setback 20 feet from N. Main St. will stand out from the historic fayade line and will not
be compatible with the historic development pattern. .
Another positive benefit of the proposed building location at ten feet from the front property line
is maintaining the streetscape and street enclosure ofN. Main St. The proposed building setback
at the required 20- foot special setback for front yards abutting arterials is too far from the
sid~walk to provide pedestrians visual interest from the front of the building or a sense of safety
from moving vehicles. The streets that pedestrians find most comfortable and safe feeling are
those where buildings front directly on or near the street. In contrast, when buildings are set
farther from the street pedestrians tend to feel isolated and unprotected. Additionally, the
building setback at 20 feet will be further back from the street than most of the front facades on
the east side ofN. Main St. in the vicinity thereby making the street more open in this location.
The building front fayade should maintain the historic fayade line because vertical surfaces such
as building fronts close to the street encourage drivers to slow down.
Concerns were raised at the January 9, 2007 public hearing that approval of the front yard
variance may prevent the installation of bicycle lanes on N. Main St. at a future date. County
and city maps provide general information about the N. Main St. corridor. Based on county
assessor's maps, city aerial maps and the Ashland Street Standards, there appears to be adequate
space between the proposed building and the building on the opposite side of the street at 493 N.
Main St. for a future reconstruction ofN. Main St. as a four-lane Boulevard including parkrows
and bicycle lanes. Additionally, the street corridor is partially located in the Skidmore Academy
Historic District (i.e. from the downtown to Maple St.). The Skidmore Academy Historic
District is on the National Historic Register, and the associated federal regulations could affect
street widening projects in listed historic neighborhoods. The 20-foot setback intrudes into some
of the building footprints on both sides of N. Main St. A street widening project could
potentially impact the character of the historic district by reducing front yards and removing
historic buildings, and thereby altering the historic development pattern.
SECTION 3. DECISION
3.1 Based on the record of the Public Hearing on this matter, the Planning Commission concludes that the
application for Site Review approval to an office building, an Exception to the Street Standards to install a
curbside sidewalk on the Glenn St. property frontage, and a Variance to reduce the special setback
requirement for front yards for properties abutting arterial streets has satisfied all relative substantive
standards and criteria and is supported by evidence in the record.
PA 2006-02354
N, Main St. & Glenn 8t.
Page 7
EXHIBIT A
Therefore, based on our overall conclusions, and upon the proposal being subject to each of the following
conditions, we approve Planning Action # 2006-02354. Further, if anyone or more of the conditions below
are found to be invalid, for any reason whatsoever, then Planning Action #2006-02354 is denied. The
following are the conditions and they are attached to the approval:
1) That all proposals of the applicant are conditions of approval unless otherwise modified here.
2) That the applicant shall submit an electric distribution plan including load calculations and locations
of all primary and secondary services including transformers, cabinets and all other necessary
equipment. This plan shall be reviewed and approved by the Ashland Electric Department prior to
building permit submittal, and the approved plan submitted with the building permit application.
Additionally, the placement of any portion of the structure in the public utility easement shall be
reviewed and approved by the Electric Department. Transformers and cabinets shall be located in
areas least visible from streets and outside of vision clearance areas, while considering the access
needs of the Electric Department.
3) That the engineered construction drawings for the public sidewalk improvement shall comply
with approved plans, and submitted for review and approval of the Ashland Planning and
Engineering Divisions prior to issuance of a building or excavation permit. The concrete color
and surface finish shall be the city standard in accordance with the Ashland Engineering
Specifications. Additionally, evidence of approval of the Oregon Department of Transportation
for any work in the jurisdiction of the state shall be submitted with the engineered construction
drawings.
4) That the required pedestrian-scaled streetlight shall consist of the City of Ashland's
commerciallhistoric streetlight standard, and shall be included in the utility plan and engineered
construction drawings for the public sidewalk along Ashland Street. That the property owner
shall install public pedestrian-scaled street lights to City specifications on the N. Main St. and
Glenn St. street frontages.
5) That a final utility plan for the project shall be reviewed and approved by the Engineering Division
and Building Divisions prior to issuance of a building permit. 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, sewer mains and services, manholes and clean-outs, storm
drainage pipes and catch basins.
6) ,That if a fire protection vault is required, the vault shall not be located in the sidewalk.
7) That all public improvements including but not limited to the sidewalk, street trees and street
lighting shall be installed in accordance with the approved plan prior to issuance of the certificate of
occupancy.
P A 2006-02354
N. Main 81. & Glenn 81.
Page 8
EXHIBIT A
8) That the plans submitted for the building permit shall be in substantial conformance with those
approved as part of this application. If the plans submitted for the building permit are not in
substantial conformance with those approved as part of this application, an application to modify this
Site Review approval shall be submitted and approved prior to issuance of a building permit.
9) That a Tree Protection Plan in accordance with the requirements of 18.61.200 shall be submitted for
review and approval of the Staff Advisor with the building permit submittals. The Tree Protection
Plan shall include an analysis from the project landscape architect or certified arborist of the impact
of the installation of the pervious paving on the walnut tree to be preserved.
10) That the recommendations of the Ashland Tree Commission with final approval of the Staff
Advisor shall be addressed prior to the issuance of a building permit. The recommendations shall
be included on a revised tree protection plan, landscaping plan and final irrigation plan at the
time of submission of building permit. Landscaping and the irrigation system shall be installed
in accordance with the approved plans prior to issuance of the certificate of occupancy.
11) That a Verification Permit shall be applied for and approved by the Ashland Planning Division
prior to site work, building demolition, and/or storage of materials. The Verification Permit is to
inspect the installation of tree protection fencing for the walnut tree in the southeast comer of the
property. The tree protection shall be chain link fencing six feet tall and installed in accordance
with l8.61.200.B. .
12) That public utility easements on the property shall be shown on the building permit submittals.
No portion of the structure shall intrude into a public utility easement without approval by the
Ashland Engineering Division.
13) That the finished floor elevation (FFE) of the building shall be at a minimum, the same elevation
as the public sidewalk in front of the building in the N. Main St. right-of-way. Verification of
the FFE being at or above the elevation of the public sidewalk shall be submitted with the
building permit for review and approval by the Staff Advisor.
14) That mechanical equipment shall be screened from view from N. Main St. Location and
screening of mechanical equipment shall be detailed on the building permit submittals.
15) That the windows shall not be heavily tinted so as to prevent views from outside of the building into
the interior of the building.
16) That the building materials and the exterior colors shall be identified in the building permit
submittals. Bright or neon paint colors used extensively to attract attention to the building or use are
prohibited in accordance""with the Detail Site Review Standards.
P A 2006-02354
N. Main 51. & Glenn 51.
Page 9
EXHIBIT A
17)
That exterior lighting shall be shown on the building permit submittals and appropriately
shrouded so there is no direct illumination of surrounding properties.
18)
That a comprehensive sign program in accordance with the requirements of Chapter 18.96 shall
be deveioped for the building and submitted for review and approval with the building permit
submittals. That a sign permit shall be obtained prior to installation of new signage. Signage
shall meet the requirements of Chapter 18.96.
19)
That the building size and number of residential units shall be revised so that the total number of
required off-street parking spaces does not exceed the six spaces provided (i.e. five on-site
spaces and one on-street parking credit).
20)
That the recommendations of the Historic Commission with final approval of the Staff Advisor
shall be incorporated into the building permit submittals.
21)
That the requirements of the Ashland Fire Department including fire apparatus access and fire
hydrant flow requirements shall be satisfied prior to issuance of a certificate of occupancy.
22)
That t4e new structure shall meet Solar Setback B in accordance with Chapter 18.70 of the
Ashland Land Use Ordinance. Solar setback calculations shall be submitted with the building
permit and include the required setback with the formula calculations, an elevation or cross-
section clearly identifying the height of the solar producing point from natural grade and the
solar setback in site plan view called out from the solar producing point to the north property
line.
Planning Commission Approval
Date
P A 2006-02354
N. Main St. & Glenn St.
Page 10
EXHIBIT A
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PA 2006-02354
N. Main St. & Glenn St.
Page 11
EXHIBIT A
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