LUBA tells city to 'fix' its decision

Art Bullock, an Ashland resident involved in six lawsuits against the City of Ashland, declared victory in a Land Use Board of Appeals case involving a mixed-use building project on the corner of North Main and Glenn streets.

He announced his triumph at recent City Council and Planning Commission meetings and in a letter on the city's public e-mail service. But then he and Philip Lang on June 24 appealed LUBA's ruling to the Oregon Court of Appeals.

Bullock's e-mail, dated June 10, says LUBA announced on June 3 that he and co-petitioners Philip Lang and Colin Swales "won their case appealing council's approval of an office development on the corner of Glenn Street and N. Main Street."

But Bullock and Lang filed an appeal on June 24, asking the Court of Appeals to review LUBA's ruling. The appeal stated: "Petitioners are not willing to stipulate that the agency record may be shortened."

Swales, who is named as a petitioner in both cases, said he is not a party to the Court of Appeals case and did not want to comment on the reason for the appeal. Neither Bullock nor Lang returned phone calls or e-mails to the Tidings.

History

Petitioners Bullock, Lang and Swales, all of Ashland, appealed the City Council's approval in May 2007 of a building project on the corner of North Main Street and Glenn Street proposed by architect Ray Kistler. The Planning Commission had approved the application in January 2007.

Kistler, a former Ashland planning commissioner who owns the property with his brother Rick, applied to build a 3,000-square-foot, two-story, mixed use structure. He requested a variance to the required 20-foot-setback on North Main Street, offering a 10-foot-setback instead. Kistler also asked for an exception to the sidewalk standards that required a parkrow — a seven-foot-wide strip of landscaping between the curb and sidewalk — in addition to a sidewalk on Glenn Street.

The three petitioners challenged the city's decision to grant site approval, as well as the variance to the setback and exception to sidewalk standards.

On June 3, LUBA denied the petitioners' motion to file a reply brief and their motion to strike 26 passages from the city's brief. LUBA also denied six of the petitioners' claims that the city erred in its approval of the project.

The only assignment of error LUBA found in favor of the petitioners was the city's approval of the exception to sidewalk standards.

There currently is no sidewalk along the project's Glenn Street frontage. The city approved Kistler's request for a curbside sidewalk, rather than the sidewalk with a parkrow.

Ruling

LUBA ruled that in order to grant the exception, the city must demonstrate an extreme hardship for the applicant if he has to follow the sidewalk standards.

"All of the reasons cited by the city ... demonstrate that a parkrow sidewalk in this case will produce little benefit," the LUBA ruling stated. "But none of those reasons demonstrate that it would be 'demonstrabl[y] difficult' to install a parkrow sidewalk."

LUBA remanded the city's decision back to the city "to fix," said city attorney Richard Appicello.

"The Council will have to address that single assignment of error," said Appicello, before the petitioners appealed LUBA's decision. "It's basically saying the council granted approval. LUBA said you shouldn't have done that. The council will have to reconsider that assignment and it could go either way."

Kistler said that issue is "completely inconsequential."

"LUBA ruled that this minor issue is to be remanded back to the city," he said. "The sidewalk issue has never been contentious to anyone."

Fallout

The city had until June 24 to appeal LUBA's decision; but Appicello said the city had no plans to appeal. However, petitioners Bullock and Lang filed an appeal June 24 with the Oregon Court of Appeals, asking the court to review LUBA's final opinion and order.

"All of the original petitioners have individual reasons for getting involved," Swales said. "When the case was remanded, I hoped this would go to the council so they could fix the problems. I guess I have more faith in our elected officials then they did."

Kistler was asked whether he would build the project if the dust ever settled on this case.

"That's hard to say given what this Bullock/Swales/Lang 'appeal' has done to our family economically," he said. "The scale of the project is so small; it definitely wasn't worth going through the public process for such an inconsequential project and issue."

Kistler said he has invested about $52,000 in city fees, the requested re-design by the petitioners and legal fees.

"More importantly, I estimate that construction costs will be $160,000 more than when I first applied for a planning approval on this small 3,000-square-foot building," he said.

Kistler said after learning about the appeal to the Court of Appeals, "These three are effectively killing the viability of this project; which may be the goal."

Reach reporter Michele Mihalovich at 492-3456 ext. 226 or mmihalovich@dailytidings.com.