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OA 2025-053 Eisenberg et al v. City of Ashland
YouTube video by Oregon LUBA (https://www.youtube.com/watch?v=0adkobBMQF4). Transcript is the auto-caption track — verbatim ASR, not a certified transcript.
Good morning, everyone. Just wait 1 minute till 11:30. Get started. Good morning. Right. Good morning again. This is the time set for oral argument in Luba number 2025-053, Eisenberg versus the City of Ashland. I'm Board Chair Smudio. Board Member Wilson is also present today. Board Member Basham is not present and will not be participating in the decision in this appeal. Uh, please mute your audio when you're not speaking. That will help with the recording quality. And I'm not aware of any pending motions in this appeal. or there that the parties need to bring to our attention. I don't believe so. Okay, thank you. Nothing from the parties. So, oral argument is a total of 30 minutes. Petitioner, you have 15 minutes and may reserve up to 5 minutes for rebuttal. Would you like to reserve any time? I would like to reserve 5 minutes, please. Thank you. Yes, of course. And I will keep track of time and ask that you keep track of your own time, too. Just so you know, the clock, which is really out of view on our screen today, is not there for specific timekeeping purposes, but just for reference. An intervener, you'll have a total of 15 minutes for your response. And again, I'll I'll keep track of time and ask that you keep track of your own time, too. Be mindful of that. So, with that, petitioner, please state your name for the record and begin. Do you want me to list the petitioners? No, go ahead. Just just you and go ahead. Thank you. Thank you. Good morning. Uh Petitioners already think articulated their position fairly clearly in the both the petition and the reply briefs, but I just want to touch on some key issues on appeal and then, of course, answer any questions that the board might have. Uh first off, on addressing the first assignment of error, um the that decision, well, the decision overall was was in fact made by the planning commission and not the city council. And as the board well knows, it does not have to defer to interpretations of local land use regulations that are made by a planning commission under the Gage v. City of Portland decision. But even if this was a city council decision, it wasn't a I mean, the LUBA can't defer to an interpretation that's is simply inconsistent with the express language or purpose or or policy. And in this case, I think we have shown on a number of points that the decision does violate the Ashland land use ordinance by allowing some development a residential development on unbuildable slopes where there is otherwise adequate building area or buildable area on the subject property. is very clear. It says, "No development shall occur or or all development shall occur on lands that defined as having buildable area and slopes greater than 35% shall be considered unbuildable except as allowed below. Um exceptions may be granted to this requirement only as provided under subsection H. An an exception wasn't sought under subsection H. Um rather, the the commission, despite the fact that the map that was provided, the topographical map, shows most of the site is actually less than 35 and there are areas where certainly a buildable uh residence could have been placed or shrunk down to conform with the 35% uh requirement. Um and but that didn't happen here. The applicant did not seek an exception under subsection H. Instead, the city approved the the the site plan and and well, and the application based on its finding that the uh subject property, and I'm quoting from the record at seven, um does not have adequate building area of less than or equal to 35% when considering the need to minimize broader disturbance by limiting development of the site to an area as near the existing driveway location as possible while also providing for site access and vehicle circulation. But that that qualifying language isn't in the code. And so, what the commission did in effect was insert language that it isn't there. I mean, the city council could amend its code to include that type of exception or consideration, but it hasn't done so. And and in in a quasi-judicial proceeding, um the commission is simply not in a position to interpret the in code. >> What? So, I mean, the phrase adequate is uh I'm curious how adequacy of the buildable area is determined by the city. First of all, like what do you think is the proper way for the city to determine what adequate buildable area is? That's my first question. I'll have a follow-up depending on your answer. >> Uh sure. Well, it's a good it's a good question. I mean, adequate is certainly would suggest the building itself with, you know, sufficient bedrooms and kitchens and whatnot to accommodate a single family need. Um but here, the the the adequate building area, I mean, could have been with actually even maintaining the same square footage of the of the home itself into areas that were less than 35%. Um I mean, if you look at I think it's page 12 of our brief, there's a map that shows the site with all the various um slope percentages on it and clearly uh there is plenty of area that is less than 35%. Um but they but the applicant chose to place the building footprint along with the terraces, the swimming pool, the patios, etc., um which are another assignment of error, um and not not building in a in the strict sense of of the residence itself on the areas that include the 35% slope, notwithstanding the fact that they could have relocated that or shrunk it to an area that did not violate the the plain language of the code. So, if I understand your answer, adequate buildable area can and should be interpreted with reference to a specific building plan. So, the applicant can decide, "I want a 5,000 square foot building or I want a 1,500 square foot building." This criterion can shift determine on the specific building plan that's in front of the city. >> Absolutely. I think that's a that's a fair um And then, your argument is that you have to take that building plan and look where else on the property it could be located. And if it can be located where there's not steep slopes or the 35% slopes, then the city has to require that. That's right. Yep. Yep. Um and here that could have occurred and but they but the city didn't do that based on its on its its insertion of this need to minimize broader disturbance and locate the the building next to the existing driveways for site access and vehicle circulation. Well, okay, but those aren't criteria. Those aren't standards by which you can violate the 35% minimum. Um but I think I think it sounds like the the board understands the argument. So, um I will I will interject that there isn't substantial evidence to back it up, either, because of that. Uh Why why couldn't they have done it? Um there's no finding that really explains that. Second of assignment of error that I'd like to um focus on is the flag lot exceeding the 18% maximum grade. Um the the variance language allows for no exception beyond the 15% except for the 18% absolute minimum lots that are of this nature. So, here it's pretty clear that the slope of the driveway averages 24% and and again, that's an average. There are portions that exceed 30%. Um so, there simply isn't a basis for the city to variant apply a variance to the variance the maximum specified by the code. And because the commission failed to provide any valid justification for this exceeding this significantly exceeding this maximum variance, um this decision has to be we argue remanded or reversed because there's simply no evidence that would allow for a an exception to the exception, if you will. Um the city also ignored its 200-ft maximum driveway limitation. Um there's no doubt that the driveway exceeds 200 ft, which is why they've sought the variance. And here, the um there's not adequate findings to justify anywhere in the decision how how that um proposed variance to the maximum length of the flag driveways is consistent with the non-negotiable cap of of 200 ft as set forth under Um I see that I'm I think at my 10 minutes. Is that No, you've got another minute in your 10 minutes for your primary argument if you want to continue. And if board member Wilson has any questions, I'd encourage him to ask them now. Yeah. Yeah, yeah, Mr. Sherlock. If we agree with you that the the slope is greater than 18% and that and variance is not allowed, do we need to reach the fourth assignment of error where where you go through the the variance approval criteria? I I think it would be there are there are well, the fact that the I don't think so. I mean overall, but I would argue that the conditions that were discussed in the in in that assignment of error, the city's failure to well, and the applicant's failure to address the relevant criteria might be worth taking a look at that. Because we do feel like there it's a somewhat of a different argument, although clearly related because it's the variance, but overall I I Commissioner referee Wilson, I I think it's I think you're right. I mean it's generally if this if this assignment two is sustained pretty much answers the question as to whether that can be whether it can be allowed. So. Okay, thank you. >> the remainder of my time for rebuttal. Thank you. You will have 4 and 1/2 minutes for your rebuttal and we'll turn to the intervener for your argument. Intervener, please state your name for the record and begin. I Chris Hearn 515 East Main Street, Ashland for intervener respondents Brian and Stephanie DeBoer. We disagree obviously. We believe the planning commission's findings found on page 7 through 9 and 10 through 12 of the record have reflect substantial evidence supporting the variance granted and the other aspects of the criteria necessary for the application to be approved with the conditions that were applied. Um With regard to the first assignment of error, the commission found the parcel does not have adequate building area under the 35% slope when considered in the context of access and minimum site disturbance. This is a pre-existing legal lot created in 1996 not by the applicant. It was approved by the city and platted. And on their city's buildable lands inventory having it buildable, you know, supports needed housing. And the slopes have to be considered in the context of minimum site disturbance. Located where it is on a very steep lot, it's located in the bottom quadrant of the parcel. That's all the slope analysis reflects anyway is that area. And by being located at the end of the only feasible driveway access, it results in minimum site disturbance. Which is critical to what the petitioners propose is that you could drive you could excavate the driveway further through the 35 plus percent slopes deeper into a patchwork of 27 to 30% slopes and overall you'd have greater site disturbance than you would if you located the residence and building pad down at the corner of the parcel where it meets the driveway. Also, the public benefit associated here is the condition offered up by the applicants of providing that long sock trail easement. And that pulls the home furthest away from the trail easement located in the upper portion of the parcel. The planning >> your argument. Your overarching argument is that adequate buildable area allows the city some discretion to consider things like overall site disturbance, easement usage Agreed. I mean I think the interpretation made by the planning commission for both the variance criteria and the to the extent they apply the hillside development standards was appropriate under these circumstances. Those standards are supposed to take into account or the whole physical and environmental constraints portion of the code is if you look at the purpose and intent is to find ways to mitigate sites which might otherwise be unbuildable due to the topography and and other issues and allow you know, some give and take to allow those sites to be buildable within the confines of the code. A L O U 18.3.10.090.8.11A is within that under that purpose umbrella is what your argument is. I'm trying to understand your argument is specifically with respect to the language of this criterion. I understand your overarching argument, but I'd like to focus on adequate buildable area and what that means. And I think I understand your argument is that the city should look at all of the things when they're determining what is adequate buildable area, whereas petitioners argument is under the slope steep slopes provisions, they should the city should only look at is there another area that avoids a 35% slopes. So there's a very >> I I think the interpretation here is you look at the topo maps that were submitted by both sides, which only are again that that lower quadrant of the property, not the entire property, which is extremely steep in the upper part. Yeah, there's some patches of 27 to 30%, but to get to those you'd have to excavate the driveway further into the parcel resulting in much greater site disturbance. So that's that's our argument on that. Um We think the findings of course are supported by adequate evidence. Second assignment of error, there's there's just a factual disagreement. The driveway was measured by our engineering staff at 197 ft. The petitioners, they claim it they claimed it was over 200 ft. That's just a factual controversy. Evidence on both sides was submitted. And using the substantial evidence rule, it was reasonable for the planning commission to to choose the 197 ft rather than the 200 ft. It's a difference in in you know, measurements provided by two opposing sides. And that's just a conflict in the evidence. It's not a a lack of application of the criteria on the part of the planning commission. What is the what is the finding on the average grade? I think it was 24% and I I say that by the way on page 32 of my brief, there was a typo that was pointed out by petitioners on page 17 where I said it was 15.23. That was meant to be 24%. But I mean that's the whole reason for the variance. I typed it >> only allows up to 18%. So why if the fact is that the grade is 24%, why does that not negate the ability for the city to allow a variance at all? Cuz the variance standard allows up to 18. So if the fact is that it's 24, how can the city do this? Well, because the commission found the driveway is 197 ft in length with an average slope of 24% and that no feasible alternative access exists, which is an important part of the code. Those those driveway, by the way, those the driveway standards are directly under the new lots and partitions portion of the code. So if you're going in with a new lot or partition with a flag flag lot, you know, you can't show those greater slopes on the driveway, but we're talking about a pre-existing >> allow for an exception for a pre-existing lot so that this variance to criterion does not apply? Um Where did the city apply that exception? Um Well, I don't know that it specifically has an exception for pre-existing, but it does the portion of the code that has a standard is no lot line adjustment. I believe it says no lot line adjustments or partitions shall be allowed unless the flag drive meets these standards. And you know, it was applied >> didn't find that this criterion does not apply. The city found that this criterion was satisfied, right? So those are two really different issues. If the criterion applies and it allows only up to an 18% grade for a variance, how can the city ever approve a 24% grade? I I think if it's a type one variance, that's true, but a type two variance I think can exceed that. Where in the city code Where in the code is that supported? 18.5.3.060 F allows for variance for driveway grades exceeding 15% provided the variance criterion 18.5.5 are met. And the length of the driveway does not exceed 200 ft. The staff report explains the proposed driveway configuration meets those criteria and the type two variance approval is therefore consistent with So 18.5.3.060 F is where I believe it is. Right, which provides no greater than 18%. So what you're arguing is that 18% cap doesn't apply because this lot preexisted the adoption of that code provision. I don't think that the city found that this provision doesn't apply. I think the city found that the variance is allowable. So, what's your argument that the city has authority to allow a greater than 18% grade even under this variance provision? Flag drive shall not exceed 15% grade. This is 18.5.30 of the F. A variances may be granted for flag drives for grades in excess of 15% but no greater than 18% provided the cumulative length that a bank commission finds the proposed driveway is via an existing shared access easement to utilize an existing long steep privately paved roadway. The proposed driveway extension to service subject property is 197 ft in total length and the terminus of the existing driveway has an average slope of 24%. And the commission found lot configuration, site topography, and existing driveway grade natural features constituted unique circumstances that prevented the lot the existing lot from meeting the standard. Um and that adjacent properties to the east exceed 15% grade average existing property grade before the driveway construction is 27% and there's no feasible area to mitigate the driveway grade configuration. Uh and the location to access easement so the commission found that no alternative driveway access was available. And that this is otherwise a landlocked parcel which would be undevelopable if a Okay, thank you. >> It sure looks like this the findings find that you need a variance but you can't get one but because it's there's no alternative means we're going to give you one anyway. Am I missing something there? Well, I think they found you know, it was an exception for a preexisting parcel that was approved prior to the adoption of the standards. How does that allow you to not have to meet the variance criteria I I I I can't tell you exactly. I'd have to circle back. Okay, okay. >> I I I think that the purpose of a variance for a preexisting landlocked lot that was created before the standards existed in the type two context allows a little more leniency if the if the other variance criteria are met. I mean, if the variance criteria are solidly met which they are in this case. Okay, thank you. And it's not a self-imposed situation. The partitions went through the variance criteria and felt this was self-imposed. If you look at the variance criteria self-imposed, it says for example, if the applicant had previously done a partition or lot line adjustment that created the situation. So, it specifies in the variance criteria code that an example of self-imposed would mean the applicant his or herself had imposed had led to the had done a lot line adjustment or partition which led to the And on the fire turnaround, petitioners are arguing there was no finding of feasibility that a turnout would satisfy the fire standards and you point to a an email from the uh fire marshal saying that all considered turnout design to Jackson County development standards. Petitioner argues that doesn't show that the fire marshal approves that or that it's feasible. It just shows that the fire marshal would consider proposal for a turnout. What's your argument that that is a feasibility finding or that is adequate to satisfy the feasibility issue? >> and the pool will be equipped for outflow to help suppress fire equipment. I mean, fire wildfire in the event that the that happens. Um The fire official, you know, said they'd consider that. I mean, it was adopted then as a condition of approval. There's adequate space for the Jackson County style turnaround which is you know, there's adequate space for the applicant to do that. >> Did the city find that there's adequate space for that or did the city just find we can wait for this until we are approving the site plan to have the fire marshal sign off on that? Um Petitioners are arguing there's no feasibility findings and that the underlying the city needs to make feasibility findings on this alternative fire Um I think that you know, the the fire marshal's submittal along with the engineer's report which I put down that there was feasible space that could be developed up there to do Jackson County style turnaround if necessary. Can you point to where in the record that that is or where the city relied on that? It seems like >> find that specific >> Okay, you don't have any Okay, so we are uh at your 15 minutes also. So, unless there's further questions from the board for intervener um just a couple sentences to wrap up your argument. Counselor Hearn. Um yeah, I mean, we believe that really if if you if the board focuses on pages 7 through 9 of the record 10 through 12 and looks at the planning commission's findings along with the record uh that there's substantial evidence to support the finding in light of the fact that this is a preexisting lot with no other access available in a very steep area of town that's you know, in the needed housing concerns for having a inventory of housing and and utilizing urban infill um to make lots developable when they're created historically. Thank you. Uh we'll return to petitioner. You'll have 4 and 1/2 minutes for your rebuttal, petitioner. Thank you. Just a few points here. One um there is nothing in the code that that carves out an exception um for preexisting lots. Uh You know, under the variance criteria um that would simply create a a rather um inconsistent application of the code to various development proposals given that there's plenty of lots in the city that are still vacant or subject to redevelopment um and there just isn't a there isn't a a isn't code language that would allow for um the board to um adopt the interpretation proposed by applicant which because it's just there's no there's no legal justification for that. Uh on the 200 ft length question, the city itself the city staff determined that the length of the driveway is {quote} well exceeds both the 200 ft limit and the 18% grade threshold based on the applicant's own materials and we cited that in our brief but it's at record 426 and at 415 um where I mean, the applicant the applicant admitted that the proposed driveway exceeds 200 ft in length which is why they sought the variance for that driveway length. There there wasn't just a variance for the the slope the steepness of the driveway. Um it was also exceeding the 200 ft and that's so, it's inconsistent now to say that well, we didn't uh we didn't have to abide by the the 200 ft crutch standard because it it doesn't it's not on 200 ft. Well, that's it is that's not what they say in in their application materials. It's not what's clearly indicated in the record and it doesn't make sense that they would have applied for a variance for that to that condition. So, what I'm hearing today is essentially the grade is 24%. That exceeds 18 the 18% cap. So, it can't be given. You've asked for a reversal based on this criteria. Is the evidence such that there is no way to design a driveway that would be under that 18% cap or it's just the driveway as proposed is not under that 18% cap? Uh we according to the applicant, there is no other way. >> the only way to get to this parcel. >> to get to that parcel. To the buildable area. Yep. And where is that in the record? Uh The The planning The planning commission found that that's why the planning commission approved this is because this is the only way to get to the buildable area. So, that should be in the planning commission decision. Yes, and I and I and I think I mean I think it's fair to say that that Mr. Hearn just basically conceded that in his argument that this is the only way to get there. Uh along this this I mean there's easements coming from from Granite Street and then um and then it's a straight shot up to the um the flag portion of the of the parcel. Um and so it's uh you know, I don't I don't I don't think the easements that are are in existence would allow for anything other at this point. Um that's not you know, I mean I suppose they could try and get easements from other access points elsewhere, but um at this Based on the record, uh I I think it's fair to say and I I My question is really about the proper disposition. If we agree that this variance criterion is not satisfied and you're asking for a reversal, I'm essentially asking what's your best argument that reversal is the best disposition here. And I think I hear you saying, "Well, maybe there's a different way to get there, you know." Maybe, but um I don't I don't I I think based on the record, there's no evidence um that I'm aware of that that shows there was any ability or attempt um to do anything other than this tr- attempt to slam through this this variance um of the 18% um because I I think that I mean there's certainly no findings to that effect in the in the decision. And there may be findings that this is the only way to get there. I believe there are. Um I I I think I think that is I don't I don't think that's disputed. Okay. Yeah. Uh any further questions from the board on this? Okay. Uh that does complete your rebuttal time, but since I gave intervener a couple of sentences to wrap up, I'll also give you a couple of sentences to wrap up your argument. >> Oh, thank you. Thanks. Yeah, there's no other >> intervener. No, no, I'm not inviting the intervener. I'm allowing petitioner to complete their argument. Thank you. Uh I I I I think I think we've we've set forth you know, our arguments um pretty pretty straightforward in our our plea our briefs. I think the board seems to have a uh pretty good grasp of the arguments and at issue. Um we would ask the decision be reversed um given that there's absolutely no way to avoid um violating the the variance statutes uh variance ordinance. Um both as far as the 18% in particular, but also the the 200-ft length. Um and and for the other reasons um that we set forth in our our petition, um at the very least the decision should be uh remanded. Thank you. Thank you. Thank you. Thank you for your arguments both of the parties um and for answering our questions. That will conclude oral argument. The statutory due date for our decision in this appeal is April 8th. Uh we'll ask the parties to agree to an extension so that we issue our decision by April 29th. Is that okay with these parties? That's fine with the petitioner. Okay, and I see a nod from intervener. Thank you for that and uh have a good remainder of your day.