# The Motion Is To Do Nothing

*Civic Beat · August 27, 2026 · by Alan Decault*

> Five roll calls on the flag drive ordinance. Three of them tied. The Ashland Planning Commission rejected the staff language, rejected doing nothing, rejected a 20 percent cap, rejected a shorter steep run, and then voted 5–1 to come back on September 8 and try again.

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**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._

Source: https://ashlandfreepress.com/civic-beat/2026-08-27-the-motion-is-to-do-nothing