CC030101 -
[Cached Version]
Published on: 3/1/2001
Last Visited: 4/28/2008
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.
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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.
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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
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