The regular meeting was called to order by Mayor Young at 7:35 p.m. Harold Olsen delivered the invocation and Mayor Young led the flag salute.

COUNCIL MEMBERS PRESENT:

Mayor Cheryl A. Young

Councilor Bob Schmor

Councilor Marian Calnon

Councilor Bill Guy

Councilor Gary Hudson

COUNCIL MEMBERS ABSENT:

None

ALSO PRESENT:

Leahnette Rivers, City Administrator/Recorder

Jim Bundy, Public Works Superintendent

Jim Holycross, City Planner

ATTORNEY PRESENT:

Harold Olsen, City Attorney

A quorum was present and due notice had been published.

Public Hearing opened.

Applicant H.K. Hewitt asked that the record show Patricia Hewitt as an applicant and property owner.

The Mayor asked if anyone objected to a summarization of the staff report. There being no objections heard, Jim Holycross, City Planner, summarized the staff report dated February 21, 2001. He said the variance application was filed in an attempt to legalize an existing deck which violates rear yard setbacks. He said the deck was constructed without Planning Commission approvals and without a building permit. He said an example of extraordinary circumstances that would merit the approval of a variance would be a river changing its course, and the centerline of the river being identified in a legal description as the property line. He said if the river's centerline moved in a direction that resulted in a smaller lot it could be considered an extraordinary circumstance.

Jim Holycross said the application does comply with the Comprehensive Plan. He said the applicant has stated that decks are common within this zoning district. He said staff is unaware of other outside decks that violate the setback requirements. He said the applicant states that the adjacent alleyway is not proposed to be developed or used as a public thoroughfare. Jim Holycross said the neighboring property owner's rights, proximity between structures, would be infringed upon if this variance is granted, regardless of whether or not the alleyway is developed. He agreed that extending the deck two feet into the rear yard setback would be the minimum variance to alleviate the hardship, but he maintained that there is no hardship. He said the application had been deemed complete and a Planning Commission hearing was held. He said the applicant received notice of the decision by the Planning Commission. He said if the variance were approved, the applicant would be entitled to the transfer of variance provisions. He concluded that the Planning Commission denied the application for a variance on December 12, 2000 because there were no findings of fact showing that, owing to special and unusual circumstances related to this specific piece of property, strict application of the Ordinance would cause an undue or unnecessary hardship. He also asked that 44 Exhibits be entered into the record, and confirmed that copies of a table of contents describing the 44 Exhibits had been distributed to the members of the City Council, the applicant, and the applicant's legal counsel.

Harold Olsen explained that there is a deck that overlaps into the back yard setback area which is eight feet. The deck overlaps by two feet into that setback area. The variance request is for the allowance of the deck to overlap two feet into the setback area. He said sections of the Ordinance and the staff report tell you what the criteria are for granting a variance. He referred to Page 3 of the staff report, and said Item No. 1 describes the critical question to decide. He read, "In order to grant a variance there has to be showing that there are special and unusual circumstances related to a specific piece of property and strict application of the Ordinance would cause undue or unnecessary hardship." He said there are two criteria here as follows: 1) Is this an unusual circumstance related to a specific piece of property, and 2) Will strict application create an unnecessary or undue hardship. He said evidence would be taken tonight in addition to the exhibits accepted into the record in order to decide whether or not the applicants’ request satisfies these criteria. He said all the criteria have to be satisfied in order to grant the variance.

The Mayor asked about the criteria concerning the best interest of the surrounding property. Harold Olsen said all the criteria need to be addressed, but he had just picked out what he thought the real crux of the issue was. He said also on Page 3 in subparagraph B, it outlines the same problem that Council is looking to see if there are exceptions and extraordinary circumstances that apply to the property that do not apply generally to other property in the same zone and vicinity.

Frank Hammond introduced himself as an attorney with the law firm of Cable, Huston, Benedict, Haagensen and Lloyd located at 1001 SW 5th Avenue, Suite 2000, Portland, representing the applicants, Mr. and Mrs. Hewitt. He said before going into the merits of the appeal, he wanted to note one thing for the record. He said he was given the Table of Contents listing the Exhibits a few minutes before the meeting started, and he has not had a chance to review it in detail. He said he had no objection to using the Table of Contents as a reference during this hearing. However, for purposes of the record he wanted to state they are not waiving a right to contest the contents of the record if this case is appealed to LUBA in a record objection.

Mr. Hammond said the staff report repeats what the Planning Commission heard. He said the staff report concentrates highly on the fact that this deck was built before the variance application was made. He said there are continuous references to illegality and implications of wrongful behavior. He said at the Planning Commission hearing Mr. Hewitt explained why he made the mistake of building the deck and he apologized for that. He said staff made no note of that in the staff report. He said he thought the record needed to reflect that the deck was built in error and that Mr. Hewitt had actually publicly apologized for that. He said there is no truly objective evaluation of the evidence submitted available here tonight. He said there is more to this case than merely the application that was made that triggered the Planning Commission hearing. He said there was a hearing at the Planning Commission at which evidence was submitted, and evidence going precisely to the criteria the City Attorney has discussed. He said none of that evidence is discussed in the staff report. He urged the Council to consider the evidence as he went over it, because it proves that the variance criteria have been satisfied.

Mr. Hammond asked the Council to think of a couple of other examples when they evaluate the credibility of the staff report: He said the staff has provided no analysis of the legal grounds they had provided for this appeal. He said with the notice of appeal, they had filed a detailed memorandum explaining why the Planning Commission committed an error and also explaining how this applicant has satisfied the variance criteria. He said none of that is dealt with by the staff in the staff report. He said it has been stated that an extraordinary circumstance is where a river changes its course. He said there is no case citation for that. He said variances in Oregon are regularly granted in other circumstances that are very similar to this one. He said he would present evidence showing that since 1996, this City has granted every single setback variance that has been brought before it on circumstances highly similar to this. He said if the City adopts the attack-dog approach of the staff as characterizing Mr. Hewitt’s actions, it will end up in the LUBA appeal. He said the applicant doesn’t want that to happen. He said what the staff has done by smirching Mr. Hewitt and his wife is unacceptable and has ill served this City.

Mr. Hammond said the Council should ask themselves if the variance would be granted if the deck wasn’t there. He said enforcement against what Mr. Hewitt did is not before the Council. He said the jurisdiction for making an enforcement decision is in some other place and in some other body. He said if the Council were to base their decision on the fact that the deck was constructed before the variance application, the Council would be making a criteria not found in the Zoning Code, and that would violate State law. He said ORS 227.173 Sections 1 and 2 require that decisions by this body be made based on zoning criteria found in the Zoning Code. He said that is what Mr. Olsen was telling the Council at the beginning of this meeting. He said if the criteria are applied correctly, the Council will find that the variance should be granted. He said the finding by the Planning Commission was that the applicant had not demonstrated that owing to special and unusual circumstances related to this specific piece of property, strict application of the Ordinance would cause an undue or unnecessary hardship. He said the Planning Commission applied a criterion that is not in the Code and is not an approval criteria. He said the Planning Commission apparently believed the applicant was required to show an undue hardship independent of the approval criteria in this section of the Code. He said they used Article V, Section 3.1, but this section only gives the Planning Commission the authority to grant variances. He said Section 3.2 describes when the Planning Commission grants variances. He said if you look at the Code, it talks about what causes an undue or unnecessary hardship. He said Section 3.2, Subsections a through e describe when that demonstration has been met. He said there is no independent approval criteria. He said the introduction to Section 3.1 says "Authorization to Grant" which is saying the Planning Commission can do this. He said Section 3.2 says "Criteria for Granting" which is describing when you do it. He said if the applicant has satisfied Subsections a through e, he has satisfied the criteria and should get a variance. He said subsection b, the exceptions and extraordinary circumstance criteria, might have been what the Planning Commission was thinking. He said this is the closest one to an undue hardship criteria. He said the Planning Commission began with a misconception. He said if we show they have met all the criteria in Subsection a through e we should get the variance.

Mr. Hammond said the relevant section of the Code says there must be exceptions and extraordinary circumstances that apply to the property which do not apply generally to other property in the same zone or vicinity and which result from lot size or shape legally existing to the date of this Ordinance. He said that is the criterion that is most closely related to what the Planning Commission did. He said there are two primary reasons we have extraordinary circumstances. First, he said this lot is sloped, and because it’s sloped, the deck is higher than six feet off the ground according to the Planning Commission's interpretation of the Code. He said the Planning Commission interpreted the Code to say that this is not a ground level deck, and he and his clients disagree with that interpretation. He said that means the deck cannot encroach into the back yard setback. He said if this deck were on a flat surface, it could encroach up to four feet into that same setback. Secondly, he said this deck backs up on an alleyway. He said there is a setback restriction so the deck cannot extend close to the alley.

Mr. Hammond said the combination of those two things is the extraordinary circumstance. He said this lot presents a unique circumstance because of the combination of the alleyway and the slope. He said at the hearing we showed, as mentioned in pages 4 and 5 of the minutes, that only about ten percent of the residential property in this City shares that unique characteristic that prevents the deck from going into the setback. He said they have since done additional research which Mr. Hewitt will address, which shows that it appears to be closer to four percent of the property in the City that shares this unique characteristic.

Mr. Hewitt said he did an inventory of lots similarly sloped to his lot throughout the community. He said most of them are in the lower City. He said there are 15 lots on First Street similar to this lot that slope between First Street and The Strand, there are six similar lots on Third Street, and there are another six lots on Sixth Street for a total of 27 lots. He said at the Planning Commission meeting he had asked staff what the total lots were in the City and he was told there were 213 lots, which is where the ten to twelve percent came from. He said he had questioned that and thought it did not sound right, and later he found reference to 660 lots in the City in some 1999 City Council minutes which is why he gave the Planning Commission incorrect information. Mr. Hewitt said he has an extraordinary circumstance, and it is unique and not common. He said there are 27 lot ownerships in the City similar to his lot, which is equal to four percent.

The Mayor asked Mr. Hewitt if he had said that most of these lots are on the lower side of the City.

Mr. Hewitt said he looked primarily in the neighborhood in lower Columbia City.

Mr. Hammond said it is the combination of slope and backing onto an easement that creates this circumstance.

The Mayor said the reason she asked for clarification is because you can't look at lots in lower Columbia City and come up with a percentage using all property within the City.

Mr. Hammond said the Code criteria is whether or not compared to the residential zone in the City, this is an extraordinary circumstance. He said you look at all the residentially zoned land, and you get four to ten percent. He said that is an unusual or extraordinary circumstance.

Mr. Hammond said even if the undue hardship issue is here where you can’t build a full-sized deck where you otherwise would be able to, we have met that criteria, because there are very few lots like this, and it is a very restrictive circumstance. He said staff has argued that the applicant created this hardship and is therefore not entitled to the variance. He said that seems to be directed at the idea that Mr. and Mrs. Hewitt behaved improperly so the application should be denied for that reason. He said that is not an issue before the Council. He said the fact that the applicant purchased a lot having a slope and backing onto an alley is not a justification for denying this variance. He said the river changing course is not the only way you have an exceptional circumstance that justifies a variance; otherwise you would never grant variances. He said most of the variances are from people who have bought property and wanted to build something that doesn’t fit quite right on the lot.

Mr. Hammond said they have looked at the records and there have been five-yard setback variances since 1996, and in all of them the staff opposed granting the variance. He said the first variance to setback was dated March 11, 1997 and applied for by Holz. He said the Planning Commission approved it. He said on March 19 the Holz applicant came back for another setback variance under similar circumstances to these, and the Planning Commission approved it. He said on October 14, 1997, applicant McDade applied for a variance, and the Planning Commission approved it. He said in July 1998, there was an application from Burright and in that case, the house had been built and the porch violated setbacks, it was a mistake and it was a flat lot. He said there was no way to show exceptional circumstances, and the staff recommended against approval of the application. The Planning Commission found that the applicant had not met the standards for a variance, but it still granted approval for the porch and did not make him tear it down. He said the Planning Commission granted a one-time exception in that circumstance because they didn’t want to make them move the whole house. He distributed copies of excerpts from the Planning Commission Minutes for July 14, 1998 relating to that decision to the members of the Council and staff.

Mr. Hammond said this shows the City does not interpret the Zoning Code in the way the staff is advocating. He said it shows the City is reasonable to its interpretation of the Zoning Code and recognizes the purpose of variances is to address extraordinary and unusual circumstances, and it is the intent of the Code to allow variances. He said if you were to find otherwise and accept an interpretation that says to never grant variances unless a river changes, you have essentially rendered a portion of the Zoning Code meaningless and that violates a fundamental precept of statutory construction. He said you never assume, in enacting an ordinance or statute, that part of it was meant to meaningless. He said variances are appropriate. He said whether the applicant bought a piece of property that needed a variance is not an approval criteria, and making a decision on that ground would violate the rule against adding new criteria in the hearing.

Mr. Hammond said he would like to review how the applicant has met all of the approval criteria. He referred to Section 3.1, Subsections a through e. In reference to Subsection a, he said there is no dispute that this application complies with the Comprehensive Plan. He said this is residential zoning and residences regularly have decks, which are allowed, in the zone. He said this criterion is satisfied.

Mr. Hammond said Subsection b was already discussed and the applicant clearly meets that criterion based on the combination of circumstances related to this lot. He didn’t have control of the alley being there and didn’t have control over the topography of the lot and that fits expressly within the criteria for approval.

Mr. Hammond said Subsection c talks about the variance being necessary for the preservation of a property right substantially the same as owners of other property. He said the City has always granted variances in these circumstances, so to deny them now would be contrary to this provision and perhaps raise an equal protection problem. He said if this were a flat lot, the applicant could have this deck. He said to get a substantially similar property right, the variance is appropriate.

Harold Olsen said he didn’t understand that argument and asked why there is a difference between a flat lot and a sloped lot.

Mr. Hammond said the Code makes the difference because it says if the deck is over six feet off the ground, it cannot extend into the setback. He said if the deck is under six feet off the ground, it can go four feet into the back yard setback and this applies when it backs onto an alley or a street. He said alleys and streets are equated under the Code. He said this is a 20-foot wide grass strip that is not developed.

Mayor Young said she thinks this has something to do with views.

Mr. Hammond said the City lets carports and garages come right up to the alley boundary, and they would block views more than a deck. He said that is why at one point Mr. Hewitt thought about converting this into a carport to satisfy the Code. He said there are several carports and garages that are right to the edge of the property line, and this evidence was presented at the Planning Commission. He said they are only talking about two feet into the setback on an unused alleyway, and it seems like it makes sense that it is okay to do. He said he has heard in the staff report and at this meeting that Mr. and Mrs. Hewitt didn’t have the right to build a deck before they got a permit, and therefore they can’t satisfy this criteria. He said that is not what the criteria says.

Councilor Hudson said the request complies with the Comprehensive Plan and the Comprehensive Plan doesn’t take into account building something that is not permitted. He said the Comprehensive Plan wouldn’t allow you to build something that was too tall and would block someone’s view.

Mr. Hammond said the Comprehensive Plan and the Zoning Code are acknowledged land use regulations and they contain a provision for variances from the standards in the Zoning Code. He said under state law by definition, the variance chapter of the Zoning Code complies with the Comprehensive Plan.

Mr. Hammond said variance provisions by definition allow modification of other code provisions to deal with unexpected circumstances. The Comprehensive Plan both allows a variance and it also says that in residential zones it will allow decks. He said there is no violation of the Comprehensive Plan, and no Plan policy that deals with this situation; it is dealt with in this regulation. He said if we meet these criteria on the change in the deck size, we by definition meet the Comprehensive Plan. He said some Comprehensive Plans have specific provisions that apply directly to land use applications and are incorporated by reference. He said there might be direct provisions about views of the river, for example. He said if the provision that views of the river will not be blocked in the Code, we would have to show that this deck doesn’t block the river view, because that would be an approval criterion in this case. He said in this case, however, there is nothing in the Comprehensive Plan that directly applies to this deck. He said the criteria are the other elements in the Zoning Code.

Mr. Hammond said concerning Subsection c, variances should be allowed and have been allowed in cases like this where they are appropriate to preserve the full use of the property and all of the criteria have been met. He said the hardship has been shown and the extraordinary circumstance has been shown.

Mr. Hammond said Subsection d is a test of whether or not this variance will hurt or harm the Zoning Code or plans or objectives of the City or other property in the vicinity of the zone. He said there is no basis defined that this variance conflicts with any City plan or policy. He said the Ordinance itself provides for this type of variance, and no other provision of the Zoning Ordinance is hurt by granting the variance in this case. He said the only question is whether the variance is materially detrimental to property in the zone and vicinity. He said "materially" does not refer to a small impact on the neighborhood and a small impact on the zone by having the two-foot extension of the deck is not enough to defeat the application. He said it must be a meaningful or significant impact to other property owners in order to fail under this approval criterion. He said the objection that has been raised in the staff report is the idea that the variance would hurt the neighboring property owners’ rights by reducing the proximity of the structures. He said he shows substantial evidence that this is not a concern. He said the deck is two feet closer to a 20-foot wide alleyway, and even if it was graveled or paved, it would be a wide-open space. He said you still have the remaining backyard setback plus 20 feet of the alley and the backyard setback of the neighboring property before you get to any structure. He said proximity of structure is not the concern. He said the question may have been how to protect the alleyway and is there any harm here to the alleyway. He said no harm is shown and there is still plenty of setback. He said the City regularly allows other structures that are much more intense to be very much closer to alleyways, such as the carports and garages that were mentioned earlier.

Mr. Hammond said with regard to the neighboring property, there was evidence submitted that was not discussed in the staff report. He said they had presented evidence from a qualified appraiser showing that the proposed variance would not adversely affect neighborhood property values. He said that was a letter from James Dias dated December 12, 2000.

Mayor Young noted that the letter was included on the City's list of Exhibits.

Mr. Hammond said neighbors have either supported the application, or if they complained about the deck, it was more because it was built without a variance. He said even the person who felt most strongly about this at the Planning Commission hearing said he didn’t care whether the variance was granted or not, but he wanted to voice his concern that Mr. and Mrs. Hewitt built the deck without a permit. He said the point is that none of the neighbors have a concern about this having a negative impact on their property. He said the applicant has satisfied this criterion.

Mayor Young asked if letters from all of the neighbors were included in the list of Exhibits.

Mr. Hammond said probably not all of the neighbors wrote a letter, but of the neighbors who appeared, they were either supportive or said they didn’t care. He said this process resulted from an initial complaint, and he suspects it was the same man that appeared during the hearing and stated that he was upset that Mr. and Mrs. Hewitt built the deck without going to the City first, but he did not care if the permit is issued or not.

Mr. Hammond continued with Subsection e and said the variance requested is the minimum that would alleviate the hardship. He said the staff agrees that what we are proposing meets this criterion. He said the hardship is the inability of the applicant to develop a full-sized deck because the property is sloped and backs up onto an easement. He said the applicant has satisfied this criterion by showing the deck is two feet narrower than it could otherwise be if these circumstances weren’t present. He said there is testimony that ten feet is necessary to make full use of the deck furniture possessed by the Hewitts. He said this is a compromise between the City Code and the necessity for making full use of the property. He said based on these arguments, he has prepared findings identical to the arguments he just made. He said they would allow the Council to adopt an approval of the variance. He said they are similar to the grounds for the appeal. He submitted copies of the detailed findings for approval to the City Council and staff.

Mr. Hammond said the City has consistently granted variances in circumstances similar to these. He said the City has even gone so far as to create a special exception when an applicant couldn’t meet the criteria in circumstances like these. He said fairness and equity would justify doing it again here, and keeping the track record the City has established and sticking with precedent. He said otherwise we would have to ask why not this applicant. He asked is it because of the criterion that doesn’t exist and does it mean we have to take this case further? Mr. Hammond said he hoped the Council would consider the equity of the situation and find for the applicant.

Mayor Young noted that Mr. Hammond had referred to five other variance situations, but she had only written down information about four.

Mr. Hammond said the fifth one was on January 12, 1999, the applicant was the School District, and the request was for a variance to yard setbacks. He said the staff was opposed to that variance also.

Mayor Young asked if any of these variances were granted before a permit was issued but after the construction was completed.

Mr. Hammond said he did not know. He noted that the City staff told Mr. Hewitt to do this to fix this problem. He said in his experience as a land use attorney these things happen and you fix them by getting the approval if you can. He said in the law there are things that are prohibited because there are regulations and there are things that are wrong in themselves. He said murder is wrong in itself, but building a deck without a permit is not wrong in itself and you should be able to fix that. He said if there is a problem created by having gone ahead first, there are enforcement procedures. He said Mr. Hewitt apologized to the Planning Commission, and tonight we are saying it meets the criteria and you should grant the variance.

Mr. Hewitt said in one of the five variances discussed, the porch was already built in the Burright case.

Mr. Hammond said there was an inspection in January 1998, under the building permit, and a temporary occupancy was issued. The inspector noted an obligation to complete the deck. A question arose at the Planning Commission whether the building permit continued while the deck was completed. He said staff answered that building permits are only good for six months. He said that is not entirely correct. He said if you don’t begin construction under the building permit, they are only good for six months. If you begin construction under the building permit and have done substantial construction under a permit before the deadline, it vests the permit. So if you continue construction, you continue to have the building permit. He said construction began on the deck within the six-month period and was completed after that. He said if you grant the variance, that is the end of the permitting for this deck. He said there is no need to obtain a retroactive building permit for this deck, and he wants the record to reflect that.

Councilor Hudson said the staff report shows that the Building Inspector, Gary Biggs, seems to be in conflict with that statement.

Mr. Hewitt said Mr. Biggs had told him to build the deck. Mr. Hewitt said he had reviewed the provision on the requirements of expiration and termination of a building permit with the state building people in Salem and there is no expiration date unless you cease work for six months.

Leahnette Rivers said when the building permit was issued there was a deck shown on the plans and the deck was not ten feet and it would not have extended into the setback. She said the house was built and the final inspection was done and that is when the building permit is closed regardless of when it was issued. She said when the final inspection was done, the Inspector wrote on the building permit that the deck had not been built. She said this meant a new building permit would need to be obtained if they decided to proceed with building the deck. She said once the final inspection was done, the building permit was no longer valid for the deck. She said you couldn't get a final inspection and then continue to build on a permit.

Mr. Hammond said this illustrates the source of the error and the confusion when the mistake was made, but it doesn’t influence whether you grant the variance or not.

Mayor Young said it doesn’t clarify the confusion if the deck was listed as an eight-foot deck on the plans and then a ten-foot deck was built.

Mr. Hammond said at the time this was going on, there was an effort to vacate the alleyway, and most of the signatures or at least oral commitments were gathered to vacate the alley. He said one of the things Mr. Hewitt thought was that the alleyway was going to go away, so why go through the variance process. He said the deck was then developed to ten feet. He said Mr. Hewitt also thought he could build the deck to this size under the existing building permit. He said that is how the deck was built the way it did.

Councilor Hudson read from the Timeline/Background Information in the staff report which stated, "Gary Biggs told Mr. Hewitt since the deck (which was on the house plans submitted for a building permit application) was not built at the time of the final inspection for the house, he would need a separate building permit." Councilor Hudson asked Mr. Hewitt if Mr. Biggs had said that to him.

Mr. Hewitt asked if there was documentation that showed that.

Councilor Hudson said he was not asking for documentation, he was asking if the Building Inspector had said that to him.

Mr. Hewitt referred to his own documentation in his file, showing a copy of an inspection request for a final inspection on January 7, 1998, which was approved with corrections. Mr. Hewitt said one of the corrections was to complete the deck. He said he has another inspection request dated a month later, February 10, which says the final inspection was approved and lists no comments. He said Mr. Biggs did not tell him or anyone else he had working for him to get another permit for the deck or he would have gotten a permit. He said before he started the house, he had discussed the deck with Jean LeMont and went over this issue about needing ten feet to get the furniture on it. He said Jean had said she didn’t think that would be a problem, but a variance is needed. He said Jean had said the City had processed similar requests and she didn't think he would have a problem.

Mayor Young said Jean LeMont would not have said that.

Mr. Hewitt said that is what she said. He said if he thought he would have had a problem, he would have clarified it then. He said he didn’t want to pursue it if it wasn’t needed, because it takes extra time and money. He said the alley vacation was all but done except for one person who changed his mind. He said they wouldn’t have needed a variance if the alley had been vacated, and it is an unused alley. He said he has no documentation that the Building Inspector told him to get a permit.

Mayor Young asked Mr. Hewitt if there was a mistake on the first final inspection request that said to complete the deck.

Mr. Hewitt said he didn’t say it was a mistake.

Mayor Young said Mr. Hewitt talked about two final inspection requests.

Mr. Hewitt said they are in the City’s records and this is what is in his records.

Harold Olsen asked Mr. Hewitt if any of the 27 lots he said were similar to his situation had encroachments on them.

Mr. Hewitt said he didn’t look at them that way. He said he looked at them to respond to the criterion that says if this is a common situation in the City. He said he thought he had offered demonstrable evidence that says it is not a common situation in the City.

Mr. Hammond said they did present evidence to the Planning Commission that showed that on similar lots there are carports and garages. He said there is a map showing the location of a couple of these that back up on the alley.

Mayor Young said she would have to look at each of them to see if they are new construction or older buildings.

Mr. Hammond said one was under construction during the time of the Planning Commission hearing and is located on this same block. He said it is a carport.

Mayor Young asked if they were six foot or under in height.

Mr. Hewitt said they are well over six feet in height.

Leahnette Rivers said the Zoning Ordinance allows detached accessory buildings to be built three feet from the edge of the property line.

Harold Olsen asked whether any of the five variance discussed were similar to this one before the Council.

Mr. Hammond said the Burright exception is very similar. He said the City said they couldn’t approve a variance, but gave them an exception. He said he is not aware of any basis in the Zoning Code for creating that exception.

Mayor Young asked if the situation with the alley vacation changed.

Mr. Hammond said it had not.

Mayor Young asked if she was correct in saying Mr. Hewitt knew the deck would have been in violation if the alley vacation was not approved, but he assumed the vacation would go through and decided to proceed with building the deck into the setback without a permit.

Mr. Hewitt said that was correct.

Mr. Hammond said Mr. Hewitt’s knowledge and intent at the time is irrelevant to this decision.

Mayor Young said Mr. Hammond said it was not a criterion to consider the fact whether it was a mistake and asked why that is not perceived as a criterion.

Mr. Hammond said the Code lays out specifically when a variance is allowed, and if the criteria listed are met, the variance is granted. He said the Zoning Code doesn’t say you can’t make a variance application if you violate the Code. He said staff recommended this approach to attempt to legalize the deck, and this is a very common thing in his experience that permits are obtained after the fact. He said this a regular occurrence with wetland permits. He said Oregon, by statute, says you have to base your decisions on the criteria in the Code and you cannot create new approval criteria in the context of the hearing. He read ORS 227.173 which states, "Approval or denial of a discretionary permit application shall be based on standards and criteria which shall be set forth in the Development Ordinance and which shall relate approval or denial of a discretionary permit application to the Development Ordinance and to the Comprehensive Plan to the area in which the development would occur and to the Development Ordinance and Comprehensive Plan for the city as a whole." He said if it is not in the Code, it’s not a relevant consideration. He said that doesn’t mean that people who break the Zoning Code will just get away with it. He said there are enforcement provisions in the Zoning Code and injunction provisions in Circuit Court that can be used to enforce this Code and violations of the Code. He said those violations would be handled in a different time, and possibly in a different place. He said this is not an issue before the Council, because you are performing a quasi-judicial tribunal.

Mayor Young asked if there had been any exparte contact with the Council Members. No comments were heard from the Council.

Jim Holycross said two wrongs don’t make a right, regardless of whether or not variances were approved in the past by the Planning Commission or the Council. He said he does not buy any of what has been presented by the applicant or his slick attorney from Portland. He referred to Section 3.2, Subsection b, which states, "Circumstances over which the applicant has no control." He said he does not believe that the applicant had no control. He said he believes that the applicant knew exactly what he was doing with disregard to the Code. He said he believes the applicant is a land use consultant, and he made the statement at the Planning Commission that he just didn’t know what to do when he found himself in this situation. He said he thinks the applicant knew exactly what he was doing, and he recommended denial for those reasons and because the applicant did not conclusively show that he had no control.

Mr. Hammond said the staff has illustrated his previous point that the staff is not giving an objective view. He said as far as the staff's reference to a slick Portland attorney goes, there are some high school students here in the audience and the Council would be very happy if one of them went to college and to law school to become an attorney and represent a client here before them. He said Portland is not very far from here. He said he was born in Spokane Washington, grew up in Oregon, spent all of his life in this state, and is not a slick lawyer. He said there is no opposition from the neighborhood and no other attorney arguing against the application. He said what he has presented to the Council has been consistent with the Zoning Code. He said the Council and Planning Commission have approved five variances since 1996, and in all of those cases the staff has recommended denial. He questioned who had made a mistake in those cases. He said it is the Planning Commission and City Council's responsibility to make these decisions. He said it is not the applicant's responsibility and it is not the staff's responsibility. He said he has to assume those five decisions were correct and fair. He said they are asking for two feet on the deck, and what the applicant knew and what his motives were are not relevant here. He said the applicant is here in good faith, and he is here in good faith advocating for him as a spokesman and someone bound by the ethics of the bar to make a presentation to persuade the Council. He asked the Council to make the decision on the approval criteria and not on inappropriate grounds and he cautioned the Council not to be invited by staff to make a mistake.

Mayor Young said this has been a very orderly and well run hearing as far as the presentations on both sides. She said she is certain City staff would never have suggested the applicant go ahead and construct the deck under the assumption that a variance or alley vacation would be approved, and that comment bothered her. She also said she understands the City Planner's passion in this matter, but she would not have used the term "slick" when referring to the applicant's attorney, and she apologized for that word being used.

Jim Holycross apologized for using the term, and suggested that the word eloquent would have been more appropriate.

Mayor Young said she knows that this is the one place that she can sit and make a decision and hope that it is an honest and fair decision regardless of how she feels about anyone, and she knows that is how the rest of the City Council will handle this decision.

Public Hearing closed.

The meeting recessed at 9:08 p.m.

The meeting reconvened at 9:16 p.m.

MOVED (HUDSON), SECONDED (SCHMOR) AND CARRIED UNANIMOUSLY TO EXTEND THE MEETING.

Public Hearing opened.

No comments were heard from the public.

Leahnette Rivers explained that State law requires the City to have an ordinances prescribing licensing guidelines if it charges a fee in excess of $25.00 for liquor license review. She explained that the City currently follows the procedures set forth in the proposed ordinance, but has not had an ordinance in place.

Public Hearing closed.

AGENDA ITEM 3 CITIZEN INPUT:

Recommendation regarding speed limit on Highway 30: Mayor Young explained that Don Cass is asking that the speed limit on Highway 30 be reduced from 50 mph to 40 mph within Columbia City. She said he recently approached the Columbia County Traffic Safety Commission with his request. She said the City Council has already addressed this with the Oregon Department of Transportation (ODOT) on several occasions. She said the current speed limit of 50 mph was a compromise that was reached, and she is not in favor of approaching ODOT about this matter again at this time.

Councilors Calnon and Schmor agreed. Mayor Young said we should focus on enforcing the speed limit that we currently have. Councilor Guy said he believes that there would be community support for a speed limit of 45 mph, and interested citizens could circulate a petition and submit it to ODOT.

AGENDA ITEM 4 COUNCIL REPORTS: Mayor Young suggested Council reports be limited to information that is not already before the Council in the form of Committee Minutes.

4.1 Parks Committee: Chair Calnon said she has nothing urgent to report at this time, but the Committee is moving forward with several projects and ideas.

4.2 Water Source and Development Committee:. Chair Guy said the Water Committee is recommending the City Council authorize the draw down testing work for the new well at Ninth and "K" Streets to go to bid.

(MOVED (GUY), SECONDED (SCHMOR) AND CARRIED UNANIMOUSLY TO MOVE FORWARD WITH OBTAINING BIDS FOR THE DRAW DOWN TEST WORK.

4.3 Streets Committee: Chair Hudson said the Street Committee reviewed quotes for seal work on a portion of Sixth Street between "A" Street and Calvin Street. Leahnette Rivers said the Street Committee recommended we move forward with Superior Sweepers, Inc., provided they clarify some items in their quote. She said the City has received the requested clarification, and they will seal the street with three coats of Armor A-300, along with sand, for a little over $8,000.

MOVED (HUDSON), SECONDED (GUY) AND CARRIED UNANIMOUSLY TO MOVE FORWARD WITH SEALING SIXTH STREET AS PROPOSED IN THE REVISED QUOTE FROM SUPERIOR SWEEPERS.

4.4 Other Reports: None.

AGENDA ITEM 5 CONSENT AGENDA:

5.5 Written Report from the Public Work Superintendent.

5.6 Written Report from the City Administrator/Recorder.

MOVED (GUY), SECONDED (HUDSON) AND CARRIED UNANIMOUSLY BY ROLL CALL VOTE TO APPROVE THE CONSENT AGENDA.

Leahnette Rivers explained that water service is currently being provided to the property under a temporary connection through the City's fire hydrant. She said she provided the Jones' with a copy of her memo outlining the results of her research into this matter. She said the Water Agreement with the City of St. Helens would not allow a water connection outside of Columbia City's Urban Growth Boundary (UGB). She said the Urban Growth Area Management Agreement does not address services outside of the City's UGB. She said she does not know how the City could permit the requested connection under the current agreement with St. Helens.

Lynn Jones said the City Council had previously talked about this property being included within the UGB.

Leahnette Rivers said Columbia County recently adopted new population projections, and the City may be expanding the UGB. However, she said the UGB expansion may take a few years to complete, and the Jones' are almost finished with their home. Additionally, she said the zoning of their property will make it very difficult to include it in the UGB because exceptions will need to be made. She said it is impossible to know if their property will be included in an expansion of the UGB at this time.

Mr. Jones said they were given the impression by City staff that they would be able to connect to City water, which is why they did not drill a well earlier. He said now the ground is too soft to get a drilling rig in there.

Mayor Young said it looks like all the City could offer at this time is a temporary connection with a hose during the construction of the home.

Councilor Guy asked if an exception could be obtained from St. Helens to allow a connection outside of the UGB.

Leahnette Rivers said the Council has established a policy of not allowing connections outside of the City limits. She said several requests have previously been denied.

Mr. Jones said this property used to serve the entire City with water, and it seems odd that the City would deny water to this property at this time.

The Council continued to discuss this request at length with staff and Mr. Jones. It was the consensus of the Council that further research be conducted by the City Attorney and this matter be discussed again during the Council Meeting on March 15, 2001.

The Council completed the first reading of Council Bill No. 01-193.

Harold Olsen said there are five criteria that need to be addressed, and findings have to be made with respect to each one of those criteria. He said those findings would have to be written and presented for approval. He said there is one proposed set already in front of the Council. Harold Olsen suggested the Council make preliminary findings tonight and wait until the next meeting to make the final decision and adopt findings. He said the Council would give himself and Jim Holycross instructions as to what the Council wants and what the findings should be. He said they would write the findings and submit them to the Council for review and approval.

Mayor Young suggested Harold Olsen draft the findings because Jim Holycross has done his findings in the staff report. She said she didn’t intend to ask anyone to come to a decision at this time because it may take more study.

Harold Olsen said the crux of the issue is paragraph B, and you should focus your attention on that. He read the following general statements of the law:

• The hardship must apply to the land and not the owner.

• Self-created hardships are usually not grounds for obtaining a variance.

• The requisite extraordinary or unique circumstances must arise out of conditions inherent in the land that do not generally apply to other property located in the same area.

• The exceptional or extraordinary circumstances must arise out of the land itself.

• The conditions justifying the variance must be unique to the property.

Councilor Schmor said if this was a flat lot, there would be no problem with this deck, but because it is above six feet in height it is not acceptable.

Harold Olsen said that is a unique quality of the lot that is not shared with all of the other lots in the City. He said the issue for the decision is what other lots will it be compared to. He questioned whether it would be compared to the 27 lots mentioned earlier, or all of the lots in the City. He said the Council needs to decide whether or not this lot is unique or unusual. He said the Council could say all 27 of those lots that are on a slope are unique and are entitled to a variance because there are 500 other lots in the City that don’t have slopes. Or, he said, the Council could say all of these lots in the City share some qualities, but there are qualities they don’t share, and there are enough other lots similar to this one to make it so that it is not unique or unusual.

Councilor Schmor said it didn’t seem unreasonable to allow two feet of a deck to extend into the setback if the City allows carports to be three feet from the back property line.

Harold Olsen said he does not know why the Ordinance is written that way, but that is not the legal issue at this time. He said the Council needs to enforce the Ordinance as it is written now.

Mayor Young remembered two situations where a deck had to be rebuilt because of setback violations. She said these decks were built without any knowledge of the rules, and once the errors were discovered the owners were told they could apply for a variance. She said in both cases the owners removed portions of the deck to make them comply with the required yard setbacks.

Mayor Young said in order to answer the question about uniqueness, we must decide if we are talking about the neighborhood in which the property is located, or the entire City as a whole. She questioned if a portion of the alleyway could have been vacated.

Councilor Guy said the majority of the City is on a slope.

Council Schmor said he thought the fact that the lot backs up on an alley should be considered because there are very few houses that back up on alleys. He said there is a 20-foot alley that helps to separate the properties.

Councilor Hudson said all of the homes in that particular block back up on an alley.

Mayor Young questioned whether or not this application would be treated differently if the deck was not already constructed. She said although the alley is currently undeveloped, the Council needs to treat it as though it may be developed in the future. She continued to discuss several issues related to this matter at length. She said she could not find anything unique about that area, the alley, or the slope.

Councilor Calnon asked why the City granted the Burrights a variance, and yet we are having so much of a problem granting this one. She said this is a small variance.

Councilor Schmor asked Harold Olson if the fact that the lot slopes and it backs onto an alley adequate to approve the variance.

Harold Olsen said he didn’t know and the answer would only come from the Court of Appeals and LUBA. He said no one is objecting to this request. He said what would happen is the decision would indicate that the City Council finds the 27 other lots to be unique and unusual, and they would also be entitled to a variance.

Councilor Hudson said the decision has to be made on the criteria. He cautioned against a decision that might erode the Zoning Ordinance process. He said he can see this from the common sense approach - a couple of feet closer to an alley that is not used. However, he said the alley runs for four or five blocks, all of those properties also abut against an alley and they are all sloped. He said he does not consider that to be unique enough to meet the criteria. He said this lot does not appear to vary much from the other lots in the immediate vicinity.

Harold Olsen said that is a fairly good analysis of the problem here. He said he does not see a practical problem with granting the variance and then worrying about someone appealing the decision. However, he said when the neighbors want to do something similar to this in the future, will the Council be prepared to accept the established interpretation of this Ordinance and what is necessary for a variance. He asked if the Council is willing to follow through with that and treat everyone the same.

Mayor Young said vacating the alley is still an option, but it doesn’t help with our decision tonight. Harold Olsen said it doesn’t help in making the decision, but it is still an option.

The discussion continued in regards to the 27 lots getting variance approval if this variance is approved, and whether or not special and unusual circumstances apply to this property.

Mr. Hammond said there have only been five variance applications since 1996 for setbacks. He said he didn’t know that those 27 lots are all on the street and there is not evidence in the record about what the street looks like. He said if those property owners came in for a variance, they would still have to prove this and go through the effort of making a presentation.

Harold Olsen said 15 of the 27 lots are on First Street; six lots were on Third Street and six were on Sixth Street.

Councilor Guy said he would be inclined to approve the variance, because it makes sense. However, he said he didn’t know if the Council could prove extraordinary circumstances over which the applicant has no control. He said it appears as though the City Council needs to look at changing the Ordinance because he does not see the logic between the deck requirements and the carport and outbuilding standards.

Mr. Hammond said the house is specially designed because of the arthritic problems of the Hewitts so they can live on one level. He said they need to make more use of the upper level of the house. He said an eight-foot deck is of insufficient size to accommodate their deck furniture.

Mayor Young said neither of those issues swayed her because many people have health problems and deck furniture is not a criterion. She continued to discuss the issues relating to this request at length.

Councilor Hudson said circumstances over which the applicant has no control has nothing to do with the deck. He said the issue is with the property. He said the land doesn’t meet the criteria. He questioned again how this property is unique. He said outside of taking the Burright exception, he could not see how this variance could be approved.

Jim Bundy said he thought the view is the purpose of the standard relating to decks exceeding six feet in height.

Harold Olsen said these lots were originally plotted as smaller lots which were made larger. He said the Council may find that because they were made larger, that gives more opportunity for the neighbors to have the view that would have been lost if they were small lots with six-foot decks. He said the uniqueness may be that instead of being on one lot, they are on one and one half lots and that additional area would make them unique and allow approval of the variance.

Councilor Hudson disagreed with that. He asked what you do the next time when someone constructs a permitted carport and they want to extend two feet deeper so they can pull their boat in. He asked if that is okay.

Mr. Hammond said if someone did that, they would have to satisfy all of these criteria. He said they would have to show it’s not detrimental, but in this case there is no evidence that it is detrimental. Mr. Hammond said you have to know why the law is there, and Jim Bundy pointed out it was for the view. He said variances are there to deal with circumstances that are unanticipated or that are not identified under elements of the Zoning Code. He said this deck doesn’t hurt the view or the neighbors and there is evidence this is a rare occurrence in the City.

Councilor Schmor asked Harold Olsen if he had heard enough from the Council to write findings.

Harold Olsen said he had and would probably use the findings written by Mr. Hammond and possibly insert some other things. Harold Olsen cautioned the Council to not ignore the Ordinance, but to go through the criteria and adopt findings.

After further lengthy discussion, Harold Olsen was directed by the Council to write findings to be considered at the next Council meeting.

MOVED (GUY), SECONDED (SCHMOR) AND CARRIED UNANIMOUSLY TO ADOPT COUNCIL BILL NO. 01-196.

Leahnette Rivers explained that several small cities have adopted the City of Salem's public works specifications as their own rather than going to the expense of creating their own. She said the City's Engineer, Erik Coats, has recommended the adoption of Salem's specifications.

MOVED (HUDSON), SECONDED (CALNON) AND CARRIED UNANIMOUSLY TO ADOPT COUNCIL BILL NO. 01-197.

Leahnette Rivers explained that the City's Zoning Ordinance does provide for a Public Review in certain cases, and the City does not currently have a fee established for this process. She said staff is recommending a fee similar to the fee for a Conditional Use Permit because a Public Review will require about the same amount of staff time.

MOVED (GUY), SECONDED (SCHMOR) AND CARRIED UNANIMOUSLY TO ADOPT COUNCIL BILL NO. 01-198.

Leahnette Rivers explained that the City Council has waived these grant funds in previous years. She said they will then be used by the Columbia County Juvenile Department.

MOVED (HUDSON), SECONDED (SCHMOR) AND CARRIED UNANIMOUSLY TO WAIVE THE GRANT FUNDS TO THE COLUMBIA COUNTY JUVENILE DEPARTMENT.

Leahnette Rivers reviewed the proposed application for a Bicycle and Pedestrian Grant, which would provide a completed pedestrian system on portions of "A", Sixth, and Pacific Street. She said the application has been approved by the Street Committee, and the Committee recommends City Council support. Council reviewed the grant application, which called for a City match of $4,450.

MOVED (HUDSON), SECONDED (GUY) AND CARRIED UNANIMOUSLY TO SUPPORT THE PROPOSED APPLICATION FOR A BICYCLE AND PEDESTRIAN GRANT.

The Council recessed at 11:05 p.m.

The Council reconvened in Executive Session at 11:10 p.m.

The Council reconvened in Open Session at 11:25 p.m.

None.

There being no further business to come before the Council, the meeting adjourned at 11:27 p.m.

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