The Motion Is To Do Nothing

Ashland Planning Commission · August 25, 2026 · 1h 56m · six commissioners present, Vice Chair Russell Phillips absent · one continued legislative hearing · five roll call votes.

Four of the five failed. The one that carried scheduled another meeting.

Announcements: What The Council Did With The Recommendations

Before the hearing, Community Development Director Brandon Goldman reported on the August 18 City Council meeting, and the report was that the council approved first reading of Ordinance 3307 — the Senate Bill 974 package — without incorporating either of the two changes this commission fought for on August 11.

The two-step subdivision threshold the commission set at 12 lots: the council moved it back to 20. The 200-foot notice the commission kept for applications the state changes do not cover: the council directed staff to investigate whether any notice is required at all, and, failing that, to make it 100 feet either way.

Commissioner Kerry KenCairn asked what follows from that — whether it would “leave people in the community no knowledge of planning actions that were taking place unless they were tracking everything that went through the city.” For type one actions, Goldman said, yes. Which are most of them now.

Staff has its own concern about the legality, and cited a state floor of 100 feet on notice for housing code amendments. The council also directed Councilors Derek Sherrell and Jeff Dahle to draft amendments in eighteen areas of the land use ordinance, to be submitted to the Department of Land Conservation and Development by September 17, heard by this commission on November 10 and considered by the council on November 17. Flag lot standards and hillside slope standards are two of the eighteen.

The commission has not seen that draft. It will get it, by staff’s estimate, on September 8 — as a packet of the councilors’ materials, with the code language to follow.

Item V: The Continued Hearing On Ordinance 3309

The consent agenda passed first, five in favor, none against, one abstention. Two of the six commissioners in the room had not been at the August 11 meeting whose minutes they were approving; the captions do not establish which one abstained.

Public forum drew nobody. On August 11 the commission had directed staff to invite Joseph Kauth, who wrote in on August 6 asking the city to study urban growth, climate change and the urban heat island effect, to present in person on August 25. “There’s not a whole lot of action there,” the chair said, and moved on.

Then the flag drives.

The record so far: Ashland’s code caps flag drive grades at 15 percent and allows a variance to 18. For years the city read that 18 percent ceiling as applying only to newly created lots and approved variances past it on older ones — three or four times, staff estimated. Commissioner KenCairn put the number closer, from her own practice: “It’s three or four. ’Cause I’ve done three in the past.”

In April, the Land Use Board of Appeals held that the 18 percent maximum applies to every lot and cannot be exceeded by variance at all. Planning staff then screened 74 vacant hillside lots and identified thirteen where the ruling may leave no legal way to reach the buildable area. Ordinance 3309 is the response: a variance path for legal lots of record created before the hillside standards took effect on December 3, 1997.

On August 11 this commission voted 5–0 to reject that ordinance, then immediately reopened its own hearing and continued it to August 25 to write something better. Chair Lisa Verner opened the deliberation by calling the first of those two votes a mistake.

“We did adopt a motion at the last meeting to reject the ordinance, and that probably was an error on our part, because we were actually — what we were doing was putting it on pause.”

Planning Supervisor Derek Severson walked through the revised draft: a clean split between pre-1997 and post-1997 lots, an optional cap of 25 percent for the older ones, the existing 200-foot cumulative length limit on sections above 15 percent carried into both subsections, an explicit statement that the Oregon Fire Code still governs and the fire code official must make a recommendation on every application, and a new subsection F6 listing what a variance applicant must show — a stamped engineer’s drawing that no alignment at 15 percent reaches the buildable area, or that a steeper line does less damage to trees, water resources and rock outcroppings.

The 25 percent was not staff’s idea and not the city attorney’s. Goldman was plain about that: legal advised against any upper limit, on the grounds that a cap “might impose the potential for having a lack of relief,” which is the thing the ordinance exists to provide. The number came from this commission on August 11 and staff wrote it in as an option.

Staff also answered the question the commission asked on August 11 — and answered a different one. The commission asked for the purchase dates of the thirteen lots, to consider limiting relief to owners who held their land before 1997. What came back was an aggregate: seven of the thirteen have changed hands since 1997. The memo then argued the approach away, on the ground that land use rights in Oregon run with the land and not with the owner, that a continuous-ownership rule would make a lot unbuildable the day it is sold or inherited, and that Measure 37 is the cautionary history — an entitlement keyed to a purchase date that took Measure 49 to rein back in.

The list itself was not produced. Jay Reeck said so from the public mic, and the record bears him out.

The Testimony

Five people spoke; none in favor.

Reeck, of Strawberry Lane, speaking for himself and Sarah Sameh, said the revised draft still does not do what the commission asked, because a 25 percent option is not an upper limit, and put the objection that runs through all of it: the figure sits just above the grade proposed for 231 Granite Street, the lot behind the LUBA appeal, which he put at 24 percent.

“Nothing substantial has changed in the city’s proposal, so it should be rejected again.”

Emil Sadofsky, of Hutchinson Cox, appearing for the McLaughlins and the Eisenbergs, argued that the takings exposure runs the other way from staff’s reading, and closed on the politics rather than the law.

“Passing this proposal will send a message that Ashland citizens’ safety and their health is less important than the needs of a very small class of wealthy owners. This is an opportunity for the commission to tell them the opposite, that their safety can’t be bought.”

Ron Parker of Schofield Street noted that written comment he and his wife submitted was not among the names the chair read into the record, and said the rules should be followed: “There should be no exceptions for special families.”

Troy Brown said the 18 percent cap came out of a study and the 25 does not: “So far I have heard no reason other than there are 13 lots maybe an access.”

David Oursler, who built on a hillside lot in 2007, described being walked around his own property by a city planner and told which trees he could not cut, and having accepted it. Then the measurement that stayed in the room:

“We build hiking trails and we try to keep them to 12 percent, which is about as steep as you can walk comfortably. Most of them stay down around eight to ten percent. So when you’re talking about 25 percent, you’re talking about something that is not even comfortable walking.”

The chair closed the hearing and the record.

Deliberation

Commissioner John Maher had a prepared statement and delivered it. The revisions are cosmetic, he said; the question has already been answered; and the ordinance is not general law that happens to reach one property.

“This is one property’s application drafted into citywide legislation.”

His case, in order: the optional cap sits just above the grade at issue in the LUBA case and the 200-foot length limit is about the length of that drive; seven of the thirteen owners bought after 1997 knowing the standards; the city’s own buildable lands inventory excludes steep slopes as constrained, so these lots are not counted toward Ashland’s housing capacity and are not needed for it — 858 dwelling units of need through 2041 against a capacity he put at more than three times that, with 1,455 units inside city limits alone; and under House Bill 4037 these variances will mostly be decided by staff, with an appeal available only to the applicant.

“We would be creating a discretionary exception while giving up the public’s ability to review how it is used.”

Commissioner Jay Lininger, who had circulated a memo, argued the opposite from the same starting point. A lot platted to abut a public road carries a right of access with its title; a city may condition that easement but cannot extinguish it without a taking; and the facts needed to plead one ripen at the end of this very proceeding if no variance path exists. He asked the commission to read Palazzolo v. Rhode Island and United States v. Dickinson, and told them the state-law distinction between owners who bought before and after 1997 “would not survive judicial review” in a federal takings case.

He also had the meeting’s most useful piece of housekeeping: the Eisenberg matter is still live. The Oregon Court of Appeals heard argument two days after the commission last met, and if the court disturbs the LUBA holding, the premise of this ordinance goes with it. Asked later when a decision might come, the answer in the room was next year, next week, nothing.

KenCairn, who has designed these driveways, said the variance process is not the loophole it is being described as: it is a variance, not an exception, and it costs an applicant a great deal to prove the minimum necessary.

Commissioner Eric Herron asked why the city attorney was not present. Because it was a special meeting, Goldman said, and legal attends the regular ones. Commissioner Susan MacCracken Jain, who had opposed leaving the manufactured home park recommendations to the council in a previous round, said what happened to those recommendations happened again on August 18, “and I believe not to the favor of citizens.”

Five Roll Calls

Maher moved that the commission recommend the council do nothing. It died for lack of a second, and then KenCairn seconded it anyway. It failed 3–3 — KenCairn, Maher and Chair Verner for; Herron, Lininger and MacCracken Jain against.

Maher then moved a hard cap of 20 percent for the pre-1997 lots, in place of the optional 25. KenCairn answered it with the only sentence of the night that changed a motion:

“Can I just point out reality? The lot that you were condemning earlier tonight on Granite Street is 20 percent maximum.”

Maher withdrew the motion. The record now carries two different figures for the grade at 231 Granite Street — 24 percent from Reeck at the public mic, 20 percent from KenCairn at the dais — and the commission did not reconcile them, then or later.

Lininger then moved the staff language as written. KenCairn seconded it with an amendment putting the cap at 20 percent; Maher seconded that and amended it again to cut the cumulative length from 200 feet to 100.

• 20 percent cap into F3: failed 3–3. Lininger, KenCairn and Verner for. Maher voted against a 20 percent cap he had proposed himself minutes earlier.
• 200 feet down to 100 feet: failed 2–4. Lininger and KenCairn for.
• The main motion, staff language as written: failed 3–3. MacCracken Jain, Lininger and Verner for; Herron, KenCairn and Maher against.

Read down the column, KenCairn is the only commissioner whose votes on the ordinance describe a single position: recommend nothing, or recommend it with a ceiling, and no ordinance without one. Nobody said that out loud.

“So we’re back to square one,” the chair said. “Should we take a break?”

Lininger moved to reopen the hearing and the record and continue to September 8. He then withdrew it, un-withdrew it — “it’s a nice waffle, huh?” — and it carried 5–1, Maher alone against. Herron wanted the city attorney’s written analysis on whether a taking, if one occurred, occurred in 1997. Lininger wanted two more weeks: “The purpose is a mind meld. It’s not more input.”

Reopening the record means more input regardless. Maher’s objection was that more letters from lawyers will not help.

The Absence

On August 11 the commission asked staff for the purchase dates of thirteen specific properties. On August 25 it received a count and an argument against having asked.

Two documents shaped the deliberation and neither is in the packet. Lininger circulated a memo on takings; Chair Verner circulated an alternate version of subsection F6. Staff referred to both from the dais. The packet the public could read runs twenty-two pages: the agenda, the August 11 draft minutes, a four-page staff report and the draft ordinance.

At the end of the meeting, MacCracken Jain asked whether anything could be done about the fact that commissioners walked into the room and were handed 111 pages of material with no time to read it. Written testimony may be filed up until 7pm, Goldman said. The answer was no.

Each of these has a proper explanation. A commission cannot close a hearing on material the public has a statutory right to file at the door. Staff cannot run chain of title as a matter of course. A commissioner’s own memo is not a staff document and has no packet to sit in.

All of it is also true at once. This body spent two hours failing to agree on a number, working in part from papers the public could not read, without the list it had asked for, while the material nobody asked for ran to 111 pages and arrived at the door.

The Docket

September 8, 7:00pm, council chambers: the hearing and the record reopen, and the commission deliberates again, with a request — not a guarantee — that the city attorney attend or answer in writing.

The City Council takes up Ordinance 3309 at a public hearing and first reading on October 6, with or without a recommendation from this commission — though the staff report in the published packet says September 15. Severson and Goldman each said October 6 from the dais, twice, and theirs is the later word. Both are real council business meetings on the city’s calendar, three weeks apart. Anyone planning to testify should watch the agenda rather than either sentence.

The Oregon Court of Appeals has the Eisenberg case, argued August 13. No one knows when it rules. If it disturbs LUBA’s reading of the code, everything above is about a problem that has been solved somewhere else.

And on November 10 this commission receives eighteen further amendments to the land use ordinance, drafted by two city councilors, one of which is flag lot standards.

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Sourced from machine-generated closed captions of the August 25, 2026 special meeting of the Ashland Planning Commission, and from the agenda and the 22-page agenda packet published before it — which carry the draft August 11 minutes from that night’s consent agenda, the staff report, and draft Ordinance 3309 itself. Quotations appear as transcribed, lightly conformed to natural speech. The caption software recycles and garbles speaker labels and mangles numbers; commissioners are named where the roll call, the packet or the chair’s own words place the words with a person, figures are printed only where they came through the captions cleanly or were stated more than once, and members of the public are named as they identified themselves and as the record spells them. Ordinance 3309, Ordinance 2808 and AMC 18.5.3.060 are the controlling documents.