TO: Mayor and City Council
THROUGH: Keith Stahley, City Manager
FROM: Kristin Retherford, Community Planning and Development Director
SUBJECT:
title
Council Review of the Hearing Officer’s decision approving Conditional Use Permit, Case No. CU24-05, to allow a motor vehicle service use in the MU-III Zone, for property located at 3393 Silverton Road NE.
Ward(s): Ward 5
Councilor(s): Gonzalez
Neighborhood(s): Northgate Neighborhood Association
Result Area(s): Welcoming and Livable Community
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SUMMARY:
summary
On September 20, 2024, the Hearing Officer approved a request for a Conditional Use Permit (CU24-05) to allow a new motor vehicle service use (Adan’s Automotive) in an existing building on property zoned MU-III (Mixed Use-III), and located at 3393 Silverton Road NE (Attachment 1). At the City Council meeting on October 14, 2024, a motion was passed that City Council call up Case No. CU24-05 and conduct a public hearing.
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ISSUE:
Shall City Council affirm, modify, or reverse the Hearing Officer’s decision approving Conditional Use Permit Case No. CU24-05?
RECOMMENDATION:
recommendation
Modify the Hearing Officer’s decision, approving Conditional Use Permit Case No. CU24-05, with a modified condition related to the hours of operation. The modified condition would read, “Normal hours of operation where the business is open to the public shall be between 7 AM and 8 PM. All repairs and work done on vehicles may only be conducted between the hours of 7 AM and 10 PM.”
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FACTS AND FINDINGS:
Procedural Findings
1. Summary of Record:
The following items are submitted to the record and are available: 1) All materials and testimony submitted by the applicant, including any applicable professional studies such as traffic impact analysis, geologic assessments, and stormwater reports; 2) Any materials, testimony, and comments from public agencies, City Departments, neighborhood associations, and the public; and 3) All documents referenced in this report.
The entire case record, including the applicant’s submittals, all evidence and testimony submitted into the record, and all Staff Reports and Supplemental Reports can be found here: <https://egov.cityofsalem.net/PACPortal/Permit/View/1157210>
2. The subject property is zoned MU-III (Mixed Use-III) as of August 25, 2022, after it was rezoned from CG (General Commercial) with the Our Salem project, prior to the sale of the property to the applicant. The development site consists of one unit of land and is developed with an existing building which has historically operated as a bakery. During routine City inspections, staff noticed a new sign painted on the building for Adan’s Automotive, which is classified as a motor vehicle services use. In the MU-III zone, all other motor vehicle service uses except gasoline service stations, require a Conditional Use Permit.
Upon discovering that no permits were submitted for the new sign or to establish a new occupancy for the building, a compliance case was opened for the violations on August 8, 2023. As such, the applicant is required to obtain approval of a Conditional Use Permit to continue operating the new motor vehicle services use in the existing building that was previously a bakery, for property zoned MU-III and located at 3393 Silverton Road NE. Code compliance actions have been paused while the application is under review.
3. On March 6, 2024, an application for a Conditional Use Permit was submitted by Britany Randall of BRAND Land Use, on behalf of the applicant, Giovanna Reyes, and the property owner, Oregon Alliance LLC. A full timeline of the review and communications that followed can be found in Attachment C (Supplemental Staff Report) of the first Open Record Memo at the case link above, uploaded on August 28, 2024.
4. On May 29, 2024, the application was deemed complete for processing at the request of the applicant’s representative. It should be noted that an error was made in the original staff report based on when the request was received, as opposed to when the request was sent.
5. After meeting with staff and additional information was received, notice of the public hearing was sent, pursuant to SRC requirements, on July 25, 2024, and posted on the property by the applicant on July 31, 2024.
6. On August 14, 2024, the Hearing Officer held a public hearing for the proposed application. Subsequent to receiving public testimony and asking questions of the applicant and staff, the Hearing Officer closed the hearing and left the record open for the following periods: August 28, 2024 for any new testimony; September 4, 2024 for any rebuttal testimony; and September 11, 2024 for the applicant’s final written rebuttal.
7. On September 20, 2024, the Hearing Officer issued a decision approving the request for a Conditional Use Permit, subject to conditions of approval (Attachment 2).
8. On October 14, 2024, a motion was passed that City Council review the Hearing Officer’s decision, pursuant to SRC 300.1060, with concerns regarding the hours of operation allowed by Condition 4. A hearing was scheduled before the City Council on November 12, 2024.
9. On October 22, 2024, notice of the hearing was sent to the Neighborhood Association and interested parties pursuant to SRC requirements. Notice of the hearing was posted on the subject property on October 29, 2024.
10. The 120-day state mandated decision deadline for the application was extended at the request of the applicant by a total 120 days to January 24, 2025.
Substantive Findings
A Conditional Use is a use that is similar to other uses permitted outright in a zone but because of the manner in which the use may be conducted, or the land and buildings developed for the use, review is required to determine whether the imposition of conditions is necessary to minimize the negative impacts on uses in the surrounding area. Conditions were imposed on the approval that establish a timeline for obtaining required fire, life and safety permits; limit where vehicles can be parked; define the hours of operation; require minimal site improvements; and advise that other change may be needed if the abutting streets are ever widened. The approval criteria and findings supporting the imposition of conditions in this case can be found in the Hearings Officers decision in Attachment 2.
1. Hours of Operation
The public hearing before the Hearing Officer can be viewed at the following location: <https://www.youtube.com/watch?v=qA-vPLvqdf8>. During deliberations, staff requested the written record to be left open to address the applicant’s concerns submitted just before the hearing, and a subsequent Supplemental Staff Report was provided during the first open record period. The supplemental report provided further evidence for five of the contested conditions of approval, as recommended by staff, and agreed to amend three of the contested conditions of approval based on the information available. One of those amended conditions included Condition 4 addressing the hours of operation, which was the primary concern raised at the October 14th City Council meeting, and resulted in the motion that passed for City Council to review the Hearing Officer’s decision. That Council meeting and the discussion that followed can be viewed at the following location, beginning at time stamp 2:18:17: <https://www.youtube.com/watch?v=hFtrA8D1qek>. Specifically, Condition 4 requires the following:
Condition 4: Normal hours of operation where the business is open to the public shall be between 10 AM and 8 PM. All repairs and work done on vehicles may only be conducted between the hours of 7 AM and 10 PM.
Staff Response: Staff’s initial recommendation for this condition was that the normal hours of operation where the business is open to the public would be between the hours of 7 AM and 8 PM. This was based on the Conditional Use criterion that “the reasonably likely adverse impacts of the use on the immediate neighborhood can be minimized through the imposition of conditions.” Additionally, the applicant’s written statement indicated that “motor vehicle services could impact the area by generating increased need for vehicle parking, use of machinery to repair vehicles, noise, or odors,” and that “the possible impacts of noise are mitigated through normal working hours.” However, the condition was later amended after testimony from the applicant’s representative indicated that it was not consistent with the reasoning to limit the hours as a means to mitigate the impacts to the area since it only limited the hours of operation, and not when the shop could work on vehicles. Staff attempted to coordinate a time that would work for the business, but the hours of operation were not provided until they were asked during the public hearing, where the owner indicated the normal hours of operation for the business are currently 10 AM to 8 PM, with some exceptions for emergencies extending work until 9 PM.
Therefore, the Hearing Officer revised the condition to align with the hours the business is open to the public, which is what was indicated during the public hearing as 10 AM to 8 PM, as well as the City’s typical quiet hours for all vehicle repair, pursuant to the City’s noise ordinance of SRC Chapter 93 which prohibits noise disturbances between the hours of 10 PM and 7 AM of the following day. The Hearing Officer noted in their decision that the hours proposed by staff are more generous than similar uses inventoried by the applicant. It should also be noted the condition does not prohibit the business from implementing a drop-box system, which would allow customers to leave the vehicle at the shop and drop their keys in a locked box for employees to receive the vehicle for repair outside of the normal business hours.
The supplemental report also provided evidence of other decisions with conditions of approval limiting the hours of operation for similar motor vehicle sales and service uses, particularly when they are located near residential areas; as well as the City’s development trends that indicate about half of all new development proposals in mixed-use zones since Our Salem include residential units, both mixed-use and strictly residential developments. Based on these results, it is reasonable to assume that the surrounding area of Silverton Road NE corridor, which was rezoned as MU-III to encourage infill development, increased density, and redevelopment in mixed-use corridors and centers to promote pedestrian access, will likely include residential uses as the area redevelops. As such, the Hearing Officer’s decision (Attachment 2) indicates that the amended condition “represents a good balance between the hours of service normally offered by the applicant, and protection for future residential uses as the neighborhood gradually incorporates more residential uses.”
The Hearing Officer found that the proposal met all the applicable criteria for the proposed use, and that the potential impacts to the area would be mitigated with the conditions of approval in place. However, because of the concern over the hours of operation listed in Condition 4, staff recommends another modification to the condition that aligns with the hours of operation initially proposed by staff, as well as the City’s typical quiet hours for all vehicle repair.
The recommended condition is below:
Condition 4: Normal hours of operation where the business is open to the public shall be between 7 AM and 8 PM. All repairs and work done on vehicles may only be conducted between the hours of 7 AM and 10 PM.
Conversely, staff is not supportive of the applicant’s request to eliminate the condition altogether based on a discussion that took place at the City Council Meeting of May 8, 2023. In particular, following the decision of the Hearing Officer approving a Conditional Use Permit (CU-SPR23-02) for an oil-change facility as part of a mixed-use development that included residential units above a retail adjacent convenience store, Council raised concerns about the regulations behind allowing auto repair uses that create adverse impacts of noise and odors in close proximity with residential units. That council meeting and the discussion that followed can be viewed at the following location, beginning at time stamp 51:20: <https://www.youtube.com/live/rDvK1Gko5tI?t=490s>.
2. Summary of Other Conditions of Approval
After reviewing all staff reports and testimony provided, the Hearing Officer found that the proposal met all the applicable criteria for the proposed motor vehicle service use as conditioned, and approved the Conditional Use Permit with nine conditions of approval in place, and two advisory conditions. The following is a brief summary of each condition and why they have been required for the development:
Condition 1: The applicant shall obtain the necessary building permit to establish the change of occupancy, within 90 days of the effective date of the Class 1 Site Plan Review approval. The applicant shall request to obtain Final Occupancy within 90 days after the building permit is issued.
• This condition was drafted in response to the comment received from the Building and Safety Division that building permits to establish occupancy/use are required. Because there is an active compliance case on the property and the business has been operating for almost two years without the appropriate permits, including Fire/Life/Safety review, a time limit is warranted to ensure the permits and inspections are requested in a timely manner to ensure the business is operating in a safe manner.
Condition 2: All vehicle repair shall be conducted entirely within the building and there shall be no outdoor storage of vehicle parts or equipment on site.
Condition 3: Vehicles shall only be parked within delineated parking spaces or within the building.
• Aerial and street-view imagery, and staff observations of the site have shown vehicles parked outside of the existing parking spaces, in areas that restrict safe circulation of the site and encroach onto neighboring property; as well as repairs occurring in the parking lot, which can create excess noise or odors to the surrounding neighborhood. These conditions limit areas where cars could be located on site to ensure the operation of the auto repair shop is safe and maintains minimal impact to the surrounding neighborhood.
Condition 5: Wheel stops shall be installed to ensure that vehicles do not overhang into the sidewalk or right-of-way directly adjacent to the parking area along Silverton Road NE.
• Due to the existing layout and the close proximity of the striped parking area to the public right-of-way, this condition will ensure pedestrian safety in the public right-of-way, thereby minimizing the adverse impacts of the development. The applicant also proposed to add wheel stops with their application request.
Condition 6: The applicant shall provide a wheel stop and post signage for the ADA parking space, and paint “No Parking” within the striped access aisle. The access aisle serving the ADA space shall maintain a minimum width of 8 feet, clear of vehicles or obstructions. The painted “No Parking” designation shall be maintained in good condition and visible through the duration of the conditional use permit.
• Prior observations of the site have also shown cars parked in the ADA access aisle, or cars parked beyond the lines that delineate the space to accommodate tandem parking of excess vehicles. This condition is to ensure that accessible parking requirements are met and the ADA space remains safe and accessible to those requiring an ADA compliant space at all times.
Condition 7: The applicant shall install landscaping of shrubs and ground cover to the existing planter strip along Hawthorne Avenue NE at a density of one plant unit per 20 square feet. Trees are not required. Consistent with SRC 807.045, the landscaping material shall be maintained in a good condition throughout the duration of the conditional use permit.
• Landscape and screening is typically conditioned as a means to buffer a motor vehicle sales and services use to the surrounding area and to mitigate the visual appearance of parking lots with large amounts of vehicles. While the site is mostly paved and the addition of fencing would prove difficult for the applicant, the Hearing Officer agrees that it is proportional to require the one existing landscape planter strip on the property to be repaired and maintained in good condition to ensure compliance with landscape maintenance standards, and to mitigate the visual impacts of the parked vehicles to neighboring properties.
Condition 8: The applicant shall provide a pedestrian connection from the building entrance to the intersection of Silverton Road NE and Hawthorne Avenue NE, in conformance with SRC 800.065.
• Because the property does not currently provide a means of safe pedestrian access from the public sidewalk to the business, requiring a pedestrian connection would ensure it is reasonably compatible with the appropriate development of the surrounding area, which is based on the current Mixed-Use zoning designation of the site, where the purpose of the mixed-use zones to provide pedestrian-friendly development. Additionally, it ensures that any adverse impacts to pedestrian safety with the increased vehicle circulation on site is minimized by providing a clearly defined walkway, physically separated by speed bumps. This can be achieved as simply as painting one, five-foot-wide pedestrian path to the intersection and bolting speed bumps to the pavement, which are not particularly expensive and are proportional to the proposal, as further discussed in the Hearing Officer’s decision.
Condition 9: The property is required to provide a minimum of one ADA space on the site. If the widening of Hawthorne Avenue NE to meet standards displaces the current ADA space, a replacement ADA space shall be located elsewhere on the site.
• This condition was drafted in response to early conversations with the Building and Safety Division regarding the existing ADA space that is striped within the special setback along Hawthorne Avenue, and shall only be applicable if, and when, Hawthorne Avenue NE is widened to meet street standards.
Advisory Conditions:
(1) The property is subject to a special setback equal to 48 feet from the centerline of Hawthorne Avenue NE.
(2) The property is subject to a special setback equal to 48 feet from the centerline of Silverton Road NE.
• While the City typically includes special setback requirements as conditions, which help to serve as notifications for both the applicant and staff reviewing future development of the property, the Hearing Officer found that they are more informational, as they do not require the applicant to take any action, and has included them as advisory conditions instead.
3. Ex Parte Communication
As an active land use case, emails and testimony provided directly to Council members outside of the contested case proceeding, and without the knowledge or consent of other parties or the parties' legal counsel, are considered a form of ex parte communication. Staff is aware of a series of ex parte communication that occurred during the course of the application review, which are submitted hereto for the record.
On April 19, 2024, the applicant and their representative emailed Councilor Gonzalez with concerns and comments about staff’s review of the application; and on April 23, 2024, an email from the applicant to Senator Deb Patterson was forwarded to Mayor Hoy and Councilor Nordyke for local help on the matter. Some of the emails were provided as attachments in the supplemental report. Additionally, the applicant’s representative attended the City Council meeting on May 28, 2024, and provided ex parte testimony of concerns and comments about staff’s review of the application directly to Council during the public comment portion of the meeting. That council meeting can be viewed at the following location, beginning at time stamp 23:35: <https://www.youtube.com/watch?v=8PBek32yChg>. Council Members should declare any additional ex parte contacts with regard to this case at the commencement of the hearing.
BACKGROUND:
The subject property is currently zoned MU-III (Mixed Use-III) as of August 25, 2022, after it was rezoned from CG (General Commercial) with the Our Salem project, prior to the sale of the property to the applicant. During routine City inspections, staff noticed a new sign painted on the building for Adan’s Automotive, which is classified as a motor vehicle services use. In the MU-III zone, all other motor vehicle service uses except gasoline service stations, require a Conditional Use Permit. Upon discovering that no permits were submitted for the new sign or to establish a new use or occupancy for the building, a compliance case was opened for the violations on August 8, 2023. As such, the applicant is required to obtain approval of a Conditional Use Permit to continue operating the new motor vehicle services use in the existing building that was previously a bakery, for property zoned MU-III and located at 3393 Silverton Road NE.
ALTERNTIVES:
The City Council may:
I. AFFIRM the Hearings Officer’s decision approving it as provided;
II. MODIFY the Hearing Officer’s decision modifying or eliminating conditions of approval; or
III.REVERSE the Hearing Officer’s decision and deny the application.
Jamie Donaldson
Planner III
Attachments:
1. Vicinity Map and Site Plan
2. Hearing Officer’s Decision for Case No. CU24-05