The Ceiling Goes Back On

Ashland Planning Commission · September 8, 2026 · 1h 56m on the record · five of seven present · one continued legislative hearing · two roll calls, both 5–0 · one executive session, subject unstated.

Staff brought this commission a draft with no ceiling in it. The commission put a ceiling back on, bolted seven conditions to it, and sent that to the council instead.

Item VI: The Third Hearing On Ordinance 3309

The record on this ordinance now runs three meetings. On August 11 the commission voted 5–0 to reject the staff language and then reopened its own hearing to write something better. On August 25 it took five roll calls, four of them failed, three of those tied at 3–3, and the one that carried scheduled September 8. A hard cap of 20 percent was among the things that died that night, 3–3, with Commissioner John Maher voting against a 20 percent cap he had proposed and seconded a few minutes earlier.

On September 8, Maher moved a hard cap of 20 percent again. It carried 5–0.

What changed is what he attached to it. The August version was a number on its own. The September version is a number with a list, and the list is not Ashland’s. Maher took it from Roseburg’s hillside code, called it the Roseburg exception throughout, printed it as an exhibit and handed copies round the dais. A variance above 18 percent may now be approved up to 20 and no further, and only on findings that every one of these is met: no single section above 18 percent longer than a hundred feet, nothing above 15 percent for more than two hundred feet cumulatively, grade measured at every point along the centreline rather than averaged, the final hundred feet to the house no steeper than 15 percent, a paved area at least twenty feet wide at no more than 5 percent at the garage, a fire apparatus turnaround at no more than 10 percent inside that final hundred feet, inside and outside turning radii of 28 and 48 feet, written approval from the fire code official naming the grade, length and width and the apparatus the approval is based on, an automatic sprinkler system in the house, and stamped engineering from an Oregon-licensed civil engineer showing that no conforming alignment reaches the buildable area and that the grade asked for is the minimum necessary.

The motion’s last clause is four words longer than the rest of it needs to be and it is the operative one. No variance to a flag drive grade exceeding 20 percent.

Commissioner Eric Herron, who had voted the bare cap down in August, spent twenty minutes on the fire apparatus turnaround before voting for this one. He wanted to know whether the final hundred feet meant the approach to the house or the run down to the road, whether a turnout and a turnaround are the same thing, and whether a hammerhead sixty feet by twenty could be built on a hillside flag drive at all. He also noted, out loud, that Roseburg’s fire permit runs to 22 percent in places while the motion in front of him took the 20, which he characterised as picking the convenient number out of somebody else’s code.

Commissioner Kerry KenCairn found the clause nobody could explain. Item 2(b) would have required the stretch between the back of the curb and the property line to stay under 5 percent and to clear an eighteen-foot automobile. “It either needs to be clarified or taken out. ’Cause it doesn’t make any sense really.” Commissioner Jay Lininger moved to strike it, Herron seconded, and the four amendments together went 5–0, as did the main motion after them.

The ordinance goes to the City Council carrying a ceiling the city’s own legal advice opposed. Goldman told the commission on August 25 that legal had advised against any upper limit, on the ground that a cap “might impose the potential for having a lack of relief.” The commission has now recommended one twice and adopted it once.

The Two Memoranda

Two sitting commissioners filed written memoranda into their own commission’s record before this hearing and argued against each other in them. Maher’s carried the motion and the exhibits. Lininger’s was supplemental, dated September 8, and Maher read it into his own argument.

Lininger’s memorandum concludes, on Friends of Yamhill County, Parks v. Board of Tillamook County and Columbia Hills v. LCDC, that there is no vested right to build a flag drive where a later regulation restricting it for a lawful public purpose preceded actual development. Maher said he accepted that reading in full, and then used it against the ordinance’s own premise. If no vested right exists, the takings exposure that justified writing the ordinance is smaller than its proponents assume, and the observation that the pre-1997 distinction is a distinction without a difference argues for one standard applied to every lot rather than a broader exception for some. His motion accordingly applies to every flag lot regardless of when it was created.

That is a commissioner adopting his opponent’s legal analysis and arriving somewhere his opponent did not.

Item VI, Continued: What The Lawyers Said

Chris Hearn, of Davis Hearn Anderson Selvig & Narus, appearing for Brian and Stephanie DeBoer, whose approval was the one LUBA remanded, told the commission the amendment changes nothing.

“There’s no amendment to the ordinance that’s really taking place. It’s really amending the ordinance only to conform with the way LUBA has interpreted it. In fact, the ordinance for thirty years was interpreted just the way this new ordinance is designed to make the ordinance be. In other words, the text will conform to how the city interpreted it for three decades. It was really LUBA that amended the ordinance by reinterpreting how the city had interpreted this ordinance for three decades.”

He said staff had confirmed that every variance above 18 percent granted since 1997 rested on the reading that the standard applied only to newly created lots, and cited KenCairn’s own statement that she had personally processed three or four of them. The DeBoer lot, he noted, was approved by this same commission in 1995, in planning action PA 95-024, two years before the hillside standards existed.

Emil Sadofsky, of Hutchinson Cox, for Ken and Pamela McLaughlin and Len and Karen Eisenberg, told the commission something that cannot be true at the same time.

“We made a request to the city for findings associated with hillside lots that had such variances approved in excess of 18 percent, and the response we received did not include any driveway approvals that went above 18 percent.”

Those findings are attached to his written testimony. One lawyer says the practice was universal and staff confirmed it. The other says he asked the city for the paperwork and the paperwork does not exist. Both statements are in the same record, twenty minutes apart, and nobody on the dais asked either man to reconcile them.

Sadofsky also put a fact against the takings case that has not been in this record before: there is an open offer to buy 231 Granite Street for more than its owners paid for it on the open market, for use as park and open trail space. A lot with a standing buyer has not had its economic value eradicated.

Margaret Young of Emma Lane read the whole of chapter 18 before the meeting and said the honest thing about it. “I have been confused every time I read what one of the lawyers says. I think to myself, that’s right. And then I read the other side and I think, hmm, they have a point.” She asked why a rule that has served since its adoption should be given up, and said the commission had failed to articulate the reason. She dated the rule to 1979. Hearn dated it to 1997. They may be describing different provisions and this file cannot yet say.

The Thirteen Lots, Answered A Second Time

On August 11 the commission asked staff for the purchase dates of the thirteen pre-1997 lots the ordinance would reach. On August 25 it got an aggregate, seven of thirteen sold since 1997, and an argument against using the question at all. On September 8 it got the table: addresses, map and tax lot, and the date of last sale for each.

Planning Supervisor Derek Severson summarised it as about half sold since the hillside ordinance and about half under the same ownership as in 1997, and then said the thing that has been true of this exercise since it started.

“There was no analysis on the part of staff in terms of what a driveway design or driveway grade would be.”

Asked by Lininger whether it is certain that any of the thirteen would be left without reasonable access if the ordinance failed, Severson said no. The city screened for slope and for driveways likely over fifty feet. It has not looked at a single one of the thirteen to see what can actually be built on it. Three hearings in, the ordinance’s factual premise is a screen, and the commission has now recommended legislation on it.

Lininger Voted For A Code He Had Just Called Unenforceable

In the question period Lininger asked whether a grade variance would be subject to ORS 197A.400, which permits only clear and objective standards for housing development applications. Severson’s answer was that 15 percent is clear and objective and that going beyond it “gets into something that’s then not clear and objective.”

Before the vote, Lininger finished the thought. The draft’s subsection F6 criteria are non-exclusive and subjective. So are the existing Chapter 18.5.5 criteria, because “necessary” and “consistent” are balancing terms. Subjective criteria are not enforceable in a housing development permit application outside historic areas. Therefore, in his words, the criteria “probably could not control flag drive construction because applicants can argue that the criteria are unlawfully applied to their application.”

He also noted that the commission had established during the hearing that hillside lots of this kind do not figure in the city’s housing production strategy, because land cost and location put them beyond anything approaching affordability.

Then he voted aye, and the record does not say how he reconciled the two.

The Zoning Package: Sixteen, And Five Committees

After the vote, Goldman came back with Councilors Derek Sherrell and Jeff Dahle and the code amendments the council directed on August 18.

On August 25 this desk recorded the number as eighteen areas of the land use ordinance. On September 8 it is sixteen, and the reason is on the record: the single room occupancy items came off the list once Ordinance 3307 passed. The flag drive standards came off too, into 3309, and staff told the commission the remaining sixteen are new work not reached by Senate Bill 974, House Bill 4037 or House Bill 2138.

The schedule, as staff gave it: draft code to the Department of Land Conservation and Development by September 17, a Planning Commission study session October 13, a Planning Commission hearing November 10, council hearing and first reading November 17, second reading December 15. Staff does not have a draft yet and expects to be up against the September 17 date.

Then Goldman put the cost of that schedule on the record without being asked for it.

“One question that has not yet been addressed is the participation of advisory committees in this process. This timeline, in order to have an adoption-ready packet before the planning commission essentially twenty days prior to November 10, we would have to forego those advisory committee meetings. In order to incorporate them and get advice from them, it would extend the timeline into February.”

The committees he named are Historic Preservation, Housing and Human Services, Social Equity and Racial Justice, Transportation, and possibly the Climate and Environment Policy Advisory Committee. Lininger asked the obvious question, whether that means this commission sees the package and no other body does. “That’s how this timeline is crafted.”

Sherrell opened his remarks with a disclosure. “There’s what could be a perceived potential conflict of interest. I’ve been a builder in Ashland for thirty years. I’m currently an owner builder here. I own property in Ashland.” He defended the pace as the fastest the state’s noticing rules allow, gave an example of an item that went to a committee in December and never reached that committee’s year, and asked whether it is worth the time to wordsmith code when the governor has declared housing an emergency.

KenCairn answered him.

“Our jobs as councilors, as commissioners, as people on those committees who are already feeling like they don’t have the kind of input they used to have, is to represent the community. So not listening to those people is not a good idea. Otherwise it will feel like you’re jamming it through.”

Asked for a number she said two months. Sherrell restated it as adoption in February 2027 and did not accept it. Chair Lisa Verner named the statute: “I think also it violates goal one of the land use law for Oregon. That goal one is very much in favour of pushing public engagement.”

Dahle’s answer was that goal one and the housing production strategy have been on the table for some time, that a council liaison’s job is to be a conduit rather than to drive a committee’s agenda, and that if these sixteen items mattered to those committees he would have liked to have seen them on their work plans already.

Staff can move none of it. “Based on the prior council motion, no. Council would have to direct that first reading be extended.”

The Absence

Two things are missing from this record and one of them was in the last one.

On August 25 Lininger told this commission that the Eisenberg matter is live at the Oregon Court of Appeals, which heard argument in August, and that if the court disturbs the LUBA holding the premise of Ordinance 3309 goes with it. On September 8, three hours of hearing and deliberation produced a recommendation to the council and not one mention of that appeal.

The meeting also opened at 6:30 in executive session under ORS 192.660(2)(f), records exempt by law from public inspection, with the news media admitted and barred from disclosing. The agenda does not say what it concerned. Neither does the open session, which Verner opened by noting it was a continuation of it.

Vice Chair Russell Phillips and Commissioner Susan MacCracken Jain do not appear in either roll call and no reason is stated. MacCracken Jain voted against a 20 percent cap on August 25. The cap passed 5–0 in her absence, and the two commissioners who had joined her against it in August both voted for the version that carried. This desk records the absence and draws nothing from it beyond the arithmetic.

The Docket

Ordinance 3309 goes to the City Council with the commission’s recommendation and a ceiling. The packet sets its first reading for the council meeting of October 6.

The sixteen-item package: draft code to the state by September 17, study session October 13, this commission’s hearing November 10, council November 17, second reading December 15. The advisory committees will see it if the council says so and not otherwise.

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Correction, Sept. 24, 2026: this piece originally said no council date had been set for Ordinance 3309. The September 8 packet it cites schedules the first reading for October 6. It also counted eight conditions on the recommended variance. Maher moved eight, the commission struck item 2(b) before the vote, as the piece itself reports, and seven went to the council. And it said Maher had moved the 20 percent cap that failed on August 25. The August 25 minutes record Commissioner KenCairn as the mover and Maher as the second. All three passages have been corrected. The errors were this desk’s.

Sources: the caption transcript of the September 8 open session and the agenda and 191-page packet published for it, which carries both commissioners’ memoranda, both law firms’ filings, the August 25 minutes and the table of thirteen addresses and sale dates. Ordinance 3309, the LUBA decision behind it and the Court of Appeals argument in the Eisenberg matter are all documents this file has not seen, and every characterisation of what LUBA held above is a party’s, attributed to the party who made it. Where the two law firms contradict each other on whether any variance above 18 percent was ever granted, the paper prints both and settles neither, because the answer is in the city’s records and not in anybody’s testimony. Meeting minutes are approved weeks later and are not available for a piece written three days after the gavel; when they arrive they govern, and this desk will correct what they contradict. The captions garble names, so speakers are named only where the chair’s call or a prior filing in this series confirms them, and the runtime is the recording’s and not the meeting’s, which began half an hour earlier behind a closed door.