City
Hall -
82877 Spruce St.
Westlake
,
OR
97439
COMMISSIONERS PRESENT:
Chairperson Lee Riechel, David Bellemore, Eggert Madsen, Ken Platt
and
Sandy Jones
AUDIENCE MEMBERS:
Approximately eight audience members were present, including the
applicant and his representative.
STAFF PRESENT:
City Recorder Amy Graham, Planning Secretary Joy Gipson
I.
CALL TO ORDER
Chairman Lee Riechel
called the meeting of the Dunes City Planning Commission to
order at
7:06 pm
.
Initially all were present except Ron Shearer and Eggert
Madsen. Mr. Madsen
arrived late. Chairman
Riechel welcomed David Bellemore to the Commission.
II.
APPROVAL OF MINUTES
Ms.
Jones expressed concern that the documents submitted by Mr. Norman Martin
or at least a list of them was not included in the minutes.
Chairman Riechel stated that he had discussed this with the mayor
and staff and decided not to include them in the minutes but to preserve
them in the record, but that Ms. Jones' idea of including a list was
appropriate, and proposed postponing approval of April 24, 2008 Planning
Commission meeting minutes so that staff could review the ORS' regarding
including submitted documents and at least include a list of the documents
submitted for the record by Mr. Norman Martin; and to review the minutes
again at the next meeting.
Mr.
Riechel also brought attention to a mistake using the word 'forum' instead
of 'quorum.' David
Bellemore made a motion to table the minutes until the July meeting and
Sandy Jones
seconded, and the motion passed
unanimously.
III.
STAFF REPORT
Chairman Riechel asked
staff for the land-use agenda for the next month, and staff listed the
Conditional Use Permits scheduled to be heard, one for an oversize dock
for Ms. Jones and one for a lot-line adjustment on a non-conforming lot
for Mr. and Mrs. Harris. Mr.
Riechel added that there was time for more applications to come in before
the 30-day deadline to be included in the next meeting.
IV.
UNSCHEDULED BUSINESS
Chairman Riechel asked
if anyone present would like to address the Commission on issues other
than the
Montgomery
hearing.
No one offered any comments.
IV.
PUBLIC HEARING
Mr. Lee Riechel introduced the Montgomery View Estates Subdivision
application, Subdivision file # SUB 01-07, for
Lot
100 on Tax Map 19-12-23-40.
Mr. Riechel presented
the rights of the applicant to a decision based on identifiable criteria
and identified the location in DCC Code that specifies those criteria.
He stated that
testimony must be presented with sufficient specificity and clarity to
enable the Commission and the Council to address them in order to be able
to appeal to the Land Use Board of Appeals.
He also stated that
any participant in the hearing could request that the hearing be continued
on another day or that the record remain open for seven days, and that new
evidence or testimony presented during this week would be presented to the
City Council during the second public hearing of the application on July
1.
Mr. Riechel described
the hearing procedure as described in the Agenda for the meeting.
He stated that testimony would be limited to a specific length of
time at his discretion, although the applicant would not be limited in
time as he carried the burden of showing that all approval criteria have
been met.
Mr. Riechel also
presented the rights of the applicant to impartial decision-makers, and
inquired of the members of the Planning Commission if they wished to
declare any actual or potential conflicts of interest.
Each member present denied conflicts of interest.
Ms. Kim O'Dea, attorney for the applicant requested to note for the
record that contact with Council members was an ex parte contact, and
requested that the Commission revisit the ex parte issue with this in
mind. She also stated that
under
Oregon
statute, if any person present requested
that the record remain open for seven days the applicant had the right to
an additional seven days to prepare a rebuttal to new information
presented during those seven days. Chairman
Riechel asked staff what the City's position had been on this matter and
staff replied that
David Allen
, attorney for the City, had asserted that
it was sufficient to hold the record open for seven days, to hold the
Council hearing, and then after another seven days of open record to allow
seven more days for the applicant to present a rebuttal of any and all
testimony and/or evidence submitted.
Mr. Riechel asked the
members of the Planning Commission if any of them had had any ex parte
contacts regarding this matter with members of the City Council.
Each responded that they had not, including Mr. Riechel himself.
Chairman Riechel then
opened discussion regarding ex parte contacts in general, and mentioned
the site review that all Commissioners aside from Ron Shearer conducted
with the applicant. He stated
that he had had no communication with the applicant or other Commission
members during this site review regarding anything relating to this
application other than facts about the site.
Each of the other members added that he or she also had had no such
communication.
Chairman Riechel and
each other member of the Commission stated that they had had no ex parte
contacts in relation to the subject application aside from the site
review.
Chairman asked if any
Commissioner had had any change of factual information as a result of the
site review. He stated that he
himself had none, only clarification of what was on the map.
The other Commissioners also denied any such change.
Lee Riechel then
opened the Public Hearing for the Montgomery View Estates Subdivision
application at
7:28pm
. He
asked staff to present the Staff Report and Findings of Fact.
Staff presented a
summary of the Staff Report and Findings of Fact for the subject
application.
Chairman Riechel added
to the Report that the Road Commission concurs with the Finding that
compliance with the Code requirement of 600-foot blocks would create many
problems and was not desirable.
Staff concluded the
Report with the opinion that this Subdivision with the proposed number of
lots could not comply with all
Dunes
City
and State regulations and staff therefore
recommended denial of the application.
Staff added that the
Planning Commission's options for actions regarding the subject
application were: to recommend approval based on the Findings, to
recommend approval with conditions and either set their own conditions or
leave conditions to the Council, to continue the hearing at a later date,
and to recommend denial.
Chairman Riechel added
that there was one additional possibility, which was that if it became
evident to the applicant that it was to his advantage that more
information be provided, and that if such information constituted a
significant change to the application, the applicant had the right to
request that the hearing be suspended until such time as a new application
could be provided; however, Mr. Riechel added that such a suspension was
dependent upon a substantial change to the application and a waiver of the
120-day deadline by the applicant. He
stated that it was at the discretion of the applicant to determine that
such an action would be to his benefit and that the Commission could not
request this action of the applicant.
Chairman Riechel then
asked the applicant to summarize their application.
Ms. Kim O'Dea,
attorney at law, with the law office of Bill Kloos, 375 W. 4th, Eugene, OR
97401, presented the case for
the applicant. She submitted a
number of documents for the record and for the Commissioners' use in
making their decision for recommendation.
These documents consisted of:
- Applicant's
Response to the Staff Report;
- Applicant's
Response to the Findings of Fact;
- Erosion
and Sediment Control Plan;
- Re-Development
Plan [Ms. O'Dea stated that this was the extent of Code requirement
regarding further division of
Lot
20];
- Soils
Analysis;
- Geotechnical
Report;
- Revised
Preliminary Plat with corrections including correction of
"typo" describing
Lot
7 as slightly less than one acre;
- Lane
County septic soil suitability report, sewage disposal specifications
and preliminary drainfield repair permit from 1973, for a single
dwelling then existing on Lot 100;
- Receipt
for payment for a Facility Permit application from Lane County
"for access," in Ms. O'Dea's words, which states
'Application Fee Paid' for 'Commercial Driveway' -- Ms. O'Dea
characterized this as a permit for access.
Ms. O'Dea presented a
list of responses to the Findings, stating that many of the standards used
were inapplicable. She first
stated that she could find nothing in Code that required a traffic impact
analysis.
Ms. O'Dea next stated
that staff chose not to include Findings for the Variance, but that this
was necessary. She stated that
the applicant had filed for the Variance separately from the Subdivision
application at the requirement of
Dunes
City
staff at the time of application.
Ms. O'Dea then asserted that the Erosion Control requirement referred to
in the Findings had no effective standards at the time the subject
application was filed, and that therefore this requirement did not apply
to the subject application based on ORS 197.195.1, which she summarized as
stating that "decisions must be made under standards and
criteria." Ms. O'Dea also
stated that the Impact Study was not a standard or criteria and referred
to none, and that this also applied to the Higher Design Standards
referred to in the Findings.
Ms. O'Dea then
asserted that according to
Oregon
statute 197.307(6) "applicant has the
right to review under clear and objective standards," and "there
can be no discretionary standards applied to needed housing," [Ms.
O'Dea' words] and defined single-family housing as 'needed housing'
according to Oregon Statute. She
interpreted this statute to mean that any Codes that are open to
interpretation cannot be applied, including the Re-Vegetation Plan
requirement which she claimed has no standards.
Ms. O'Dea then stated
that none of the criteria for requiring a Traffic Impact Analysis was met
in the circumstances of the subject application, and that therefore they
should not be required to submit one.
Ms. O'Dea then
asserted that ORS 227.178(3) states that the application has the benefit
of code in effect when filed and that the Erosion Control Code in
existence when the application was filed had no standards, and that the
standards still did not apply at the time of this hearing because they
were under appeal to the Land Use Board of Appeals.
Ms. O'Dea then offered
the applicant's response to the Staff Report.
She referred to the recommended decision and stated that this
raised concerns about bias.
Ms. O'Dea clarified
that portions of
Lot
100 were outside of City limits and that
only a portion of it was subject to the Subdivision in question.
Ms. O'Dea stated that
Lot
7 had been mislabeled with square footage
equaling less than one acre and that this had been corrected in the
revised Preliminary Plot submitted at the hearing.
She added that the applicant now had a water right permit.
Chairman Riechel made the comment that the permit that they had
gave them permission only to divert a certain amount of water, not to use
it yet. He added that there
was a lot that still needed to be done regarding a water system, involving
a separate department of government than that which had issued their
permit. Chairman Riechel
stated that the permit that they had would probably be sufficient for
approval of the application with conditions.
Ms. O'Dea took
exception with staff characterization of slopes greater than 16% as
"likely not developable" [Ms. O'Dea's words] and stated that
very steep slopes are developable with sophisticated enough engineering,
and that the engineered document of safety was all that was required, and
had now been provided. She
added that the road had been proposed over the existing driveway in order
to minimize disturbance of conifers and to avoid steep slopes where
possible.
Ms. O'Dea addressed
the requirement to maximize the impact of conifers.
She stated that staff interpreted this to mean "no impact to
conifers" [Ms. O'Dea's words] and that this was in error, given that
the Code allowed for other considerations.
Ms. O'Dea stated that the location of the road was intended to
maximize conifers and to provide connectivity with
Kiechle Arm Road
which would, for example, improve egress
for emergency vehicles from
Kiechle Arm Road
.
She added that this requirement involved a "fuzzy"
standard and thus probably not applicable.
Ms. O'Dea then
addressed the items listed as missing in the application, and stated that
the Erosion Control Plan requirement did not apply, asserting that the
standards connected to this Code were not in effect at the time of the
subject application. Chairman
Riechel stated that the standard in Code 154 did apply, and Ms. O'Dea
stated that the applicant had responded to this requirement by submitting
an Erosion Control Plan at this hearing.
She stated that the applicant had also now submitted proof of
access to water and an "access permit."
Chairman Riechel then added that the applicant would need a City
access permit to access
Kiechle Arm Road
. Ms.
O'Dea stated that this was not the case as
Montgomery Road
would be a public road.
Ms. O'Dea stated that
the required engineering report had now been supplied.
She added that the subject application was not for a phased
development, staff having misunderstood what constitutes a phased
development.
Ms. O'Dea stated that
the Impact Study is an informational item rather than a standard, and DCC
would have to document its connection with each applicable standard in
order for it to be enforceable.
Ms. O'Dea stated that
she hoped that the Commission would generate Findings regarding the
Variance application.
Ms. O'Dea stated that
the completeness standards and substantive standards had been confused in
the Findings. She stated
that the applicant had done his best to meet the substantive requirements.
Addressing the Finding that the application "may" meet
the requirement for payment of fee, Ms. O'Dea asserted that the fact that
a fee was requested and paid when the applicant filed the application
should indicate that this requirement had been met.
Mrs. O'Dea reiterated
that regarding the Impact Statement, one could see "the same legal
arguments there."
In response to the
Finding that the application did not conform to ORS code 92.090(4) and (5)
and thus did not comply with DCC requiring compliance with ORS 92, Ms.
O'Dea stated that this ORS only applies to final plats, not preliminary
plats.
Ms. O'Dea stated that
new re-division plans submitted at this hearing met the Code requirements.
She stated that re-division plans were required to meet only
housing and density standards, and be in compliance with DCC in size,
shape and orientation. She
added that there were no common areas proposed, and she had instructed the
applicant that any reference to such areas should be removed from the map
of the proposed Subdivision.
Ms. O'Dea stated that
an engineer's report for safety had now been submitted.
Ms. O'Dea stated that
the language of the criteria for the Higher Design Standard allowed in DCC
was too unspecific to be enforceable, and that there are no standards
specified.
Ms. O'Dea stated that
an engineer had stated, in contradiction of the Finding that the
right-of-way intersection with an arterial street should have a corner
radius of not less than twenty feet, that with no curve at this
intersection there was no radius at all.
Ms. O'Dea stated that
documentation had now been submitted that she believed confirms that the
site is suitable for some typical form of sewage disposal, including a
soils analysis.
Ms. O'Dea stated that
an Erosion Control Plan had now been submitted even though it was the
opinion of the applicant that the requirement for this was not applicable
because the Ordinance establishing this requirement was under appeal.
Regarding
re-vegetation of cleared areas, Ms. O'Dea stated that as the subject
application was not a permit but rather a Limited Land Use decision, this
requirement was not applicable. She
added that this was not a "clear and objective" standard because
it gave discretionary power to the City Council.
Ms. O'Dea surmised
that the purpose of the Re-Vegetation Plan is to limit soil erosion, and
stated that the Subdivision site had already been re-seeded with grass and
native vegetation after being logged, stating that a new Re-Vegetation
Plan would disturb stabilized soil, which would be contrary to the purpose
of the Re-Vegetation Plan.
Ms. O'Dea requested to
reserve rebuttal even if no one spoke against the application, for the
event that she found other documents that she hadn't yet presented.
Ms. O'Dea stated that
she was finished with the application presentation, and Chairman Riechel
announced a ten-minute break from
8:25
to
8:35
.
Chairman Riechel
re-convened the meeting and verified that the Commissioners could ask
questions of the public at any point during the meeting due to the small
size of the gathering.
Chairman then asked if
anyone wished to speak in favor of the application.
Mr. Norman Martin,
83750 Rio Road, Florence, OR 97439
spoke in approval of the subdivision, stating that he believed that
it meets the criteria for approval. He
requested to hold the record open for further review due to his perception
that there was confusion as to whether this application was subject to
quasi-judicial or legislative review.
He further stated that the discretionary power written into the
Higher Standards codification was not applicable, based on
Oregon
statute and case law.
Mr. Martin inquired
whether the Chairman had had ex parte contact with Mr.
Bob
Petersdorf, Councilperson and chairman of the Roads Commission, in
addressing the Roads Commission regarding this application.
Chairman Riechel responded that he had not because he had addressed
the Roads Commissioners, not Mr. Petersdorf as the chairman.
Chairman Riechel
requested that Mr. Martin support his request to keep the record open by
showing how someone would be prejudiced by not keeping the record open.
Mr. Martin responded that the applicant would need time to digest
any information. Mr. Riechel
responded that if the applicant believed that they needed time they would
be welcome to make the request, but that he didn't believe that the
reasons initially presented by Mr. Martin represented potential prejudice.
Ms. Kim O'Dea brought a
document to Mr. Martin which he read as stating, "ORS 197.763(6)(P):
'Prior to the conclusion of the initial evidentiary hearing, any
participant may request an opportunity to present additional evidence,
argument or testimony regarding the application; the local hearing
authority shall grant such a request by continuing the public hearing
pursuant to paragraph (B) of this subsection or leaving the record open
for additional written evidence, argument and testimony pursuant to
chapter (C) of this subsection.'"
Mr. Martin added that this seemed to include no mention of
necessity of evidence of prejudice.
Chairman Riechel
stated that without the ability to research the statute at the moment, he
would follow the established format for standard procedure for the
Planning Commission, which refers to necessity of prejudice.
He added that he would request that staff investigate the statute
that Mr. Martin was referring to.
Chairman Riechel asked
the Commissioners to respond to the request to keep the record open.
Mr. Bellemore expressed concern that this would place the City at
risk of running out of time in relation to the 120-day timeline for a
decision about the subject application.
Mr. Riechel responded that only the applicant can waive the 120-day
deadline and that if they chose not to the City would be required to make
a decision at the end of the 120 days.
He added that this could create difficulties given that DCC and
State law require that the record be held open for seven to fourteen days
after the second public hearing, and then that the applicant have seven
more days for rebuttal before the process can be finalized, including one
or two additional Council hearings and a final Council decision.
Mr. Bellemore inquired
what the final date for decision was, and Chairman Riechel responded that
it was July 24.
Mr. Bellemore inquired
when the additional week for public input would end, and it was concluded
that it would end the day of the Council hearing, Tuesday July 1.
Chairman Riechel added that the only way for the Commission to have
another hearing would be to have it on July 1.
Mr. Bellemore stated that this seemed to be necessary in order to
comply with laws requiring that the record be held open on request.
Ms. Jones moved that
the record be kept open for seven days as requested by Mr. Norman Martin,
and Mr. Bellemore seconded the motion.
The motion passed unanimously.
Chairman Riechel then announced that this would require a meeting
the following Tuesday and verified that there would be a quorum of
Commissioners. Mr. Bellemore
inquired whether the public hearing remained open, and Mr. Riechel
responded that it would be reopened if additional testimony was received.
Mr. Bellemore then inquired whether this allowed time for staff to
provide the Commission meeting information to the Councilors, or whether
the Council meeting would have to be changed.
It was concluded that if the Commission meeting was held on Tuesday
morning the Council could meet Tuesday evening.
Ms. Amy Graham, Dunes
City Recorder, inquired whether the record could be kept open for only
five days by agreement with the applicant, and Mr. Riechel responded that
per law it had to be at least seven days.
Ms. Graham then
requested on behalf of staff that the Tuesday July 1 Commission meeting be
held early enough to provide staff time to prepare materials for the
Council meeting the same evening.
The Commission agreed to hold the second meeting at
10am
on
Tuesday July 1 2008
.
Mr. Riechel then asked
if anyone present wished to speak in opposition to the application, and no
one spoke.
Chairman Riechel then
invited the applicant to rebut.
Ms. O'Dea asked staff
to repeat the opinion of the City Attorney regarding holding the record
open. Staff replied that they
would like to discuss Ms. O'Dea's position with him, but characterized the
City Attorney's position to be, as she understood it, that it would be
sufficient to hold the record open for seven days then hold the City
Council hearing. Mr. Bellemore
inquired what would happen if time did not allow for the applicant to
rebut testimony and evidence submitted in the seven days after the
Commission meeting, and the applicant's attorney, Ms. O'Dea responded that
it had been the City's choice to hold the hearings on the dates that they
were scheduled for.
Ms. O'Dea made it
clear that the applicant did not request that the record be left open.
Chairman Riechel then
closed the public hearing at
9:04
, and announced commencement of Commission
deliberations.
Chairman Riechel
suggested that it is necessary for land-use code to include some level of
discretion. He took issue with
Ms. O'Dea's assertion that a land-use decision and a permit decision are
two different things, stating that his understanding is that a permit
involves anything regarding land use.
He stated that the City had been operating under standard ideas
that 'one size doesn't fit all' and that there was a need to have
requirements for prevention of erosion that preceded commencement of
development, and concluded that if the codes were insufficiently specific
then they would have to be altered to be applicable.
The Commissioners
concurred with the applicant's attorney regarding the codes that she
identified to be insufficiently 'clear and objective' to be enforceable
and/or applicable.
The Commissioners
agreed that the solution that could provide some of the protections
provided for in the codes in question would be to recommend approval with
conditions. Mr. Bellemore
suggested that these conditions could be focused on requiring the
applicant to place certain requirements into the Subdivision Declaration
of Protective Covenants, Conditions, and Restrictions (CC&R's).
In response to the
letter submitted by Mr. and Mrs. Reavis in opposition to the application,
Mr. Madsen made a motion that it be made a 'consideration' that
professional information/documentation be provided regarding any water
flowing in, over, through or under a number of the lots on the site in
question. This motion was
seconded by Mr. Bellemore. The
motion passed unanimously.
Mr. Bellemore made a
motion that a traffic study not be required.
Ms. Jones seconded the motion and it passed unanimously.
A requirement for
engineered plans for the proposed road and that each step in construction
be inspected was discussed. Mr.
Bellemore made a motion that engineered plans be presented to the City
Engineer before work could begin, with three inspections by the City
Engineer and Applicant’s design engineer together, to be paid for by the
applicant: one after cut and
fill, one after base preparation and one before paving.
Mr. Platt seconded this motion and the motion passed unanimously.
Mr. Riechel suggested
a condition regarding suitability testing, inquiring when this was done.
Ms. O'Dea submitted that a soils analysis had been provided at this
meeting.
Mr. Riechel requested
discussion regarding septic suitability.
Mr. Bellemore stated that his prominent concern was the steep
slopes down to the lake. There
was some discussion regarding ways to mitigate this issue with a condition
for approval. Mr. Bellemore
made a motion that a condition be made to put requirements in the
CC&R's that natural vegetation be retained undisturbed on lots 10, 11
and 14 wherever there are slopes exceeding 30 percent, except where it
would endanger people or property and allowing for footpaths.
Mr. Riechel added to this motion that the natural vegetation should
also be maintained/taken care of. Mr.
Platt seconded the motion as added to by Mr. Riechel and the motion passed
unanimously.
Mr. Riechel then
adjourned the Planning Commission meeting at
10:52
.
Respectfully
submitted, Joy Gipson Planning Secretary
These minutes
are, to the best of my recollection, an accurate record of the DC Planning
Commission meeting of
June 24, 2008
. These
minutes will be considered final with the addition of a record of the
“continuation” meeting on
July 1, 2008
.
Lee Riechel