The Ashland Chronicle asked me to respond to Jim Falkenstein’s op-ed in last week’s Chronicle in which he threw his wholehearted support behind the Grand Terrace annexation and associated apartment complex development. The annexation proposal, located on a 17-acre hillside property along Highway 99 immediately above Anderson’s Auto Body, was unanimously approved by Ashland’s City Council last December. On May 12th the Oregon Land Use Board of Appeals (LUBA) reversed the City’s approval agreeing with the petitioner, Rogue Advocates, that the approval was “prohibited as a matter of law.” I provided testimony, drafted legal arguments, and along with attorney Sean Malone, helped Rogue Advocates win the LUBA appeal.
Mr. Falkenstein’s op-ed was written partially in response to a two-part article by former Ashland City Councilor Brent Thompson that appeared in Curtis Hayden’s “Sneak Preview” monthly publication. Mr. Thompson expressed several negative opinions about the Grand Terrace annexation in his article along with his support for Rogue Advocates’ LUBA appeal. Thompson has a long history of involvement in land use issues in Jackson County and, although I don’t share all the opinions he expressed – particularly his usage of the word “sprawl” in reference to a relatively high-density apartment development – I greatly respect his work and appreciate the time he has spent understanding the complex issues involved in land use approvals.
In his op-ed, Falkenstein states that, “I had coffee with the property owner once and he seemed like a decent, sincere guy who wants to build something special.” Falkenstein goes on to say that, “Growth is a word we all need to believe in,” and, “I believe that this apartment project…will be a positive move forward for Ashland as long as we all stay positive, stay involved, and believe.”
To put it bluntly, Falkenstein’s arguments in favor of the illegal Grand Terrace annexation sound like advice given by Santa Claus to the main character in Polar Express. In any case, his support for the annexation appears to have nothing to do with the City of Ashland’s municipal code chapter 18.5.8 – the law that determines whether or not an annexation application can be legally approved.
The good news for Falkenstein is that, as far as the Grand Terrace annexation is concerned, the City of Ashland doesn’t care much about the law either. After an unsuccessful attempt by City Attorney Dave Lohman to exclude Rogue Advocates’ testimony from the hearings record and thus thwart their LUBA appeal, three separate “assignments of error” or ways that the City of Ashland broke their own laws were identified. Although LUBA ruled on only one of those assignments of error, during a Planning Commission meeting held on May 25th, City planning staff acknowledged that all three errors had legal merit. Staff further acknowledged that changes to the City’s annexation code would be required in order to legally approve the application.
The property owner/applicant/developer for the Grand Terrace annexation is Bob Kendrick. I met him a few years ago when I was a planner for Jackson County. He told me about his plans to develop an apartment complex on his property and wanted to know how he could do so while still being within the County’s jurisdiction. I told him that his 17 acres in the County allowed for three houses and if he wanted to do something more intensive, he’d need to be annexed into the City of Ashland. He didn’t seem too pleased with my response, probably aware that annexing into Ashland would be costly, time consuming, and fraught with pitfalls.
The annexation process for projects like Kendrick’s is a big deal for several reasons. One of those reasons is because annexations represent a unique opportunity for cities to extract concessions (including affordable housing) from developers due to the huge financial incentive associated with being able to develop in a city’s jurisdiction as compared to what would otherwise be allowed in a county. Another reason is that annexations usually result in developments that substantially increase demands on city streets, utilities and other public services. Providing for these demands can be expensive and impactful to a community and therefore must be well-planned and thought out in detail.
Paying attention to these details is the responsibility of our city staff and Planning Commission. Their job is to review annexation (and other) applications in order to determine compliance with our municipal code – requirements that play a critical role in shaping Ashland consistent with our affordable housing, climate (CEAP) and other goals. If an application does not comply with these laws, then it is to be denied. Whether a developer is decent and sincere, or whether his development is something we should feel positive about is very much beside the point. The only relevant question is: Does the development comply with our laws or not?
Mr. Kendrick’s Grand Terrace annexation proposal included a conceptual plan showing 196 apartments, 30 of which would be “affordable” as required by Ashland’s annexation code. The addition of 30 affordable housing units is obviously welcome and needed. Unfortunately, Kendrick’s proposal didn’t comply with several other laws that govern annexations in Ashland. Kendrick requested an “exception” to Ashland’s street standards, which are clearly not allowed in our code. The City of Ashland granted him one anyway. And Ashland’s requirements that newly annexed areas be served by “safe and accessible” bicycle, pedestrian and transit facilities could not be satisfied due to the annexation’s frontage on a busy, 3-lane, 45+ mph stretch of highway with poor sight distances, numerous driveways, significant grades, and no safe way to cross in vicinity of the development. Remarkably, the City of Ashland tried to get around this requirement by stipulating to “strongly advocate” for a speed study to be completed by the Oregon Department of Transportation (ODOT), the agency in charge of Highway 99 – as if the completion of a study would somehow ensure the safety of pedestrians and bicyclists trying to get across the highway.
In the aftermath of LUBA’s unequivocal slap down of the City’s approval, you might expect a red-faced and humbled staff and Planning Commission. You’d be wrong. Acting with Trumpesque impunity, at their May 25th meeting they simply shrugged off the temporary setback, effectively saying to the public they purportedly serve, “We’ll just change the law.” One Planning Commissioner even suggested that City requirements for safe and accessible bicycle, pedestrian and transit facilities amounted to nothing more than “tinsel on a tree,” apparently unconcerned about whatever safety issues may result from removing the “tinsel.”
Mr. Falkenstein will be pleased to know that, having been caught lying and cheating by LUBA, the City of Ashland, in true totalitarian form, has decided to change the rules. On August 3rd, our City Council – at the request of staff – approved an item on their consent agenda to direct staff (the same ones who requested it) to change our annexation laws so that the Grand Terrace annexation could be legally approved on a second time at bat. They did this without ever being briefed on why LUBA reversed the City’s initial approval and without understanding how staff intended to change the laws. And most importantly, they did it without asking for any public input. Even Shaun Moran and Gina DuQuenne, the so-called “fiscal accountability” council members, didn’t seem concerned about entrusting the farm to the same folks who had just tried to give it away.
The changes that Ashland’s planning staff discussed with the Planning Commission at their meeting of May 25th included replacing mandatory compliance language such as “shall” with permissive language such as “should.” This is the difference between requiring something and recommending it. Also likely to be recommended by staff is specifically allowing “exceptions” for annexations. Findings of compliance with Ashland’s street and safety standards could then essentially be granted based on being a decent, sincere guy who wants to build something special.
Seemingly minor word changes in code language can profoundly influence the character of a city and result in dramatic shifts in the public’s share of infrastructure costs. Such changes can also determine whether affordable housing units must be included and can influence safety, aesthetics, and other aspects of new development. The changes contemplated by staff and the Planning Commission would apply to all future annexations, not just Grand Terrace. In fact, City records indicate that planners were using the illegal “exception” procedure for the Grand Terrace annexation as a sort of ‘trial balloon’ for another annexation proposed along Benson Way. Would-be developers there and in other areas of Ashland awaiting annexation are no doubt salivating over the opportunity to gut Ashland’s progressive annexation code language as such changes could save them – and cost us – millions.
Rogue Advocates only has resources to track a handful of planning applications per year from jurisdictions throughout Jackson and Josephine Counties. Because of the intense political pressure behind granting development approvals – particularly annexations – it’s critically important for the public to educate themselves about these proposals as well as the laws with which they must comply. Unfortunately, this is unlikely to happen within the context of a 5-minute YouTube video. And, though it’s nice to “believe” in the appealing buzzwords and pretty pictures that developers use to sell their projects, the devil really is in the details. The Grand Terrace annexation record has 1,075 pages of them.
If you’d like to know more about the Grand Terrace annexation and Rogue Advocates’ successful LUBA appeal, you may find the following links helpful:
Video – 11/17/20 Ashland City Council Hearing on Annexation (item begins @ 1:54:00)
Video – 5/25/21 Ashland Planning Commission Meeting (discussion begins @ 27:50)
Craig Anderson is a former planner for Jackson County and 22-year resident of Ashland. The views expressed here are solely his.