Agendas and Minutes

City Council (View All)

Regular Meeting

Minutes
Tuesday, November 03, 2009

 MINUTES FOR THE REGULAR MEETING

ASHLAND CITY COUNCIL

November 3, 2009

Council Chambers

1175 E. Main Street

 

CALL TO ORDER

Mayor Stromberg called the meeting to order at 7:00 p.m. in the Council Chambers Civic Center.

 

ROLL CALL

Councilor Voisin, Navickas, Lemhouse, Jackson, Silbiger and Chapman were present.

 

MAYOR’S ANNOUNCEMENTS

Mayor Stromberg read from the November 2, 2009  article in the Oregonian regarding the Infantry Battalion of the 41st Brigade Combat Team of the Oregon National Guard (1/186) and the risks they experience escorting convoys. 

 

Wes Brain/298 Garfield Street/Explained the artwork by Janet Essley displayed in the Council Chambers of garment workers from around the world represented the connection between the clothes people wear and the “sweatshop free” procurement policy.

 

Mayor Stromberg noted vacancies on the Tree Commission, Conservation Commission,  Housing Commission, Forest Lands Commission, Planning Commission, and Citizen Budget Committee.

 

The Council and Mayor thanked all the individuals involved in ensuring a peaceful Halloween holiday.  Police Chief Terry Holderness gave a brief report on the event, noted the agencies outside and within the City that were present and expressed appreciation for the assistance they provided. 

 

In addition, Chief Holderness shared details on an incident that occurred earlier November 3, 2009 involving an assault with a deadly weapon.  The Medford SWAT team was involved as well as officers from the Phoenix and Talent Police Departments.  The suspect was taken into custody and charged with several counts of aggravated assault, attempted aggravated murder on Police Officers and will have additional charges later.  Chief Holderness thanked all agencies that participated.

 

SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?

City Recorder Barbara Christensen noted corrections to page 7 of the October 20, 2009 Regular Council minutes under item number 4 regarding the Immediate Opportunity Fund (IOF) grant, the paragraph beginning with Mr. Holzgang, changing “recreation” to “creation” and “trustee” to “trust deed.”

 

The minutes of the Study Session of October 19, 2009 and Regular Council of October 20, 2009 were approved as amended.

 

SPECIAL PRESENTATIONS & AWARDS

1.   Presentation regarding Green Business Program

Water Conservation Analyst Robbin Pearce provided the history of the Ashland Green Business Program that encourages environmental stewardship while practicing economical and ecologically sound business practices.

The categories include energy, water, waste, diversion and recycling, toxic reduction, transportation and education.  She introduced the Green Business team, described how the program works and read the businesses participating in 2008 and 2009 and noted there was a waiting list as well.  Measuring progress was currently a challenge but the team was researching tracking software to improve the process.

2.      Presentation regarding the Alliance for Community Traffic Safety in Oregon's Leadership in Community Traffic Safety Award to Jim Olson

Councilor Chapman presented City Engineer Jim Olson with Oregon’s Leadership in Community Traffic Safety award and noted his accomplishments.

 

Council consensus agreed to add the Resolution supporting HR3745 Public Education, Government (PEG) and the temporary appointment of Council Silbiger to the Audit Committee for its upcoming meeting to the Consent Agenda.

 

CONSENT AGENDA

1.   Does the Council accept the Minutes of Boards, Commissions, and Committees?

2.   Does the Council have any questions about the progress on the Council Goals?

3.   Will the Council adopt a Resolution supporting HR3745, the Community Access Preservation Act, which addresses critical and immediate threats to PEG regulation (Public Education, Government) and to contact the Oregon congressional delegation to support passage of the legislation?

4.   Will the Council appoint Councilor Silbiger as the substitute liaison for the Audit Committee in place of Councilor Lemhouse who is unable to attend?

 

Councilor Voisin/Chapman m/s to approve the Consent Agenda with the two additional items. Voice Vote: all AYES. Motion passed.

 

PUBLIC HEARINGS (None)           

 

PUBLIC FORUM (None)     

 

UNFINISHED BUSINESS

1.   Does the Council want to direct staff to prepare and submit an application to Oregon Department of Transportation (ODOT) for an Immediate Opportunity Fund (IOF) grant of up to one million dollars to be used for road construction at the Croman Mill site?

Councilor Silbiger declared a conflict of interest.

 

Councilor Jackson/Chapman m/s to allow Councilor Silbiger to be excused from the meeting due to conflict of interest. Voice Vote: all AYES. Motion passed.

 

Councilor Silbiger left the room at 7:42 p.m.

 

Program Manager Adam Hanks explained gas tax revenues funded the IOF grant that supported primary economic development in Oregon through road construction and street improvements.  The owner-developer of the Croman Mill site had requested the City apply for the funds.  The grant also contains a job creation element where the owner-developer and Plexis Healthcare Systems would put together a job creation number approved by Business Oregon and ODOT.  The City would have an Intergovernmental agreement with ODOT to receive and administer the funds then develop another agreement with the owner-developer and Plexis Healthcare Systems matching ODOT’s requirements and ensuring job creation occurs by having a trust deed on the property.  Staff was requesting Council approval to initiate the grant application and finalize the details for the submittal. Applying for the grant would not obligate the City to accept the grant. 

 

The timeline to exercise the grant money was typically 3-5 years.  Staff clarified the job creation component included job retention.  The grant would be a joint commitment between Plexis Healthcare Systems and the owner-developer with Plexis Healthcare Systems responsible for securing the land and job creation by providing current and proposed job numbers that Business Oregon would verify over the years.  

 

Councilor Lemhouse/Jackson m/s to direct staff to coordinate and submit an application to ODOT for potential IOF grant award to be used for signature street road construction at the Croman Mill site.

Roll Call Vote: Councilor Voisin, Navickas, Lemhouse, Jackson and Chapman, YES.  Motion passed.

 

Councilor Silbiger returned to the meeting at 7:47 p.m.

 

Councilor Lemhouse/Jackson m/s to move #5 from Other Business, the discussion on the nudity ban to  #4 Unfinished Business.   DISCUSSION:  Councilor Lemhouse acknowledged the people present who wanted to talk about the nudity ban and wanted to be sensitive to that.  Councilor Navickas opposed moving the agenda item on principle.  He disagreed with shifting agenda items during a meeting, especially mid way through a meeting. The time spent discussing the nudity ban in previous meetings was excessive and there were other issues already scheduled that needed attention.  Councilor Jackson commented by putting it at the end of Unfinished Business they were taking care of the three items postponed to this meeting.  Roll Call Vote: Councilor Lemhouse, Chapman, Jackson and Silbiger, YES; Councilor Voisin and Navickas, NO; Motion passed 4-2.

 

Councilor Navickas/Voisin m/s to move forward the discussion regarding the AFR letter from Other Business from Council Members to Unfinished Business #3.  DISCUSSION:  Councilor Navickas explained the issue had not received proper discussion and the agenda was manipulated in an effort to avoid a critical issue due it possibly being controversial.  Councilor Chapman felt there would be enough time for the AFR item later and added he did not like moving items on the agenda during a meeting either.  Councilor Voisin also voiced her dislike of moving items on the agenda and disagreed with changing the agenda period.  Roll Call Vote: Councilor Lemhouse, Chapman, Jackson, Silbiger and Voisin, NO; Councilor Navickas, YES. Motion failed 5-1.

 

2.   Should the Council authorize the signing of a land use application that would include modifications to city-owned, public property along Winburn Way?

Planning Manager Maria Harris presented the staff report and explained the item was before Council to consider authorizing the signature of a land use application that involved City properties and a redevelopment plan for 85 Windburn Way.  The property has been operating as a small café and ice cream parlor since the 1960s, is zoned single family residential and considered a non-conforming use.

 

Staff conducted a pre-application process with the representative of the potential buyer in September.  Part of the conceptual proposal involved a zone change to commercial zoning for 85 Windburn Way property, the Pioneer Community Center property and the parking lot to the south.  They would redevelop the property and incorporate changes to the ice rink to include changing rooms, rental storage and spectator viewing.  Staff had concerns regarding the variety and intensity of commercial uses allowed with commercial zoning because it was a transitional zone between the park, downtown core and residential neighborhood.  If Council considered authorizing the signature, the land use application would go through the normal Planning process.  Staff recommended a schematic and space study to show the public places and potential park areas.    

 

City Attorney Richard Appicello reiterated the only reason this was before Council was the proposal included a portion of City property in the application and Council could withdraw anytime during the process.

 

Staff thought there was potential to redevelop the property as a non-conforming use without a zone change.

 

Parks Director Don Robertson stated the Park Commission was waiting on the Council’s decision before discussing the project.  There was a possibility the Parks and Recreation Department would become part of the ownership and there were long-term leasing options as well.  Staff added Council could have a development agreement through a deed restriction on the property to protect the City’s rights.

 

Mark Knox of Urban Development Services and Greg Covey of Covey Pardee Landscape Architects represented the applicants and provided a presentation.  Mr. Knox explained the project was based on the concept of philanthropy and not fully developed at this time.  The potential zone change would minimize difficulties that typically occurred with Conditional Use Permits (CUP) regarding loans and property maintenance.  They went on to describe project details on the Preliminary Site Plan map.

 

It was explained height restrictions for the historic district were 30 feet, commercial zones with a CUP up to 45 feet.  The applicants would not build more than 30 feet.  

 

Staff clarified the rezoning the property to commercial would include the entire block instead of a zone change to a single property. The development agreement would retain uses, building height, intensity of use and more. The project did not present a downside for the City.  The issue was a commercial use already existed on the property and if not managed well could result in a business not compatible to the area. 

 

Colin Swales/143 8th Street/Noted issues that occurred with the previous zone change for the Hillah Temple and the Community Development building.  He saw potential for a civic building on the property, recommended the City make an offer to the current owner and encouraged the Council to look at it from the City’s point of view rather than a private developer’s view.  

 

Councilor Jackson/Lemhouse m/s to authorize the Mayor to sign a land use application to allow the project to be further evaluated.  DISCUSSION:  Councilor Jackson saw the project as an opportunity, staff had identified constraints and concerns and the City should be involved in the discussions. Councilor Navickas liked Mr. Swales’ suggestion of acquiring the property but noted there were not enough funds.  He wanted strict parameters, a deed restriction that protected the Parks Department rights to the property for the skating rink and a height requirement more restrictive than the C 1 D.  Councilor Silbiger expressed concerns about turning the block into a C 1 D zone but thought the project was worth consideration.  Councilor Chapman would support the motion but did not want too many restrictions in case the City used the parking lot for a building.  Roll Call Vote: Councilor Chapman, Voisin, Jackson, Silbiger, Navickas and Lemhouse, YES. Motion passed.

 

3.   Does the Council wish to consider a provision allowing for permitted legal fireworks in the area east of Siskiyou Boulevard and North Main Street prior to approving second reading of an ordinance titled, "An Ordinance Relating to Fireworks and Amending AMC 15.28.070"?

Fire Chief John Karns presented the staff report that would establish a permit process for legal fireworks east of Siskiyou Boulevard.  Single or multiple families could apply and pay a fee for a permit.  The Fire Department would define requirements, vertical and horizontal clearance, responsible parties, proper fireworks usage, permit type, restrict it to private property and require a site visit. 

 

A database could monitor compliance of permit users over the years.  Permitted use of legal fireworks would present a manageable hazard, be applicable to residents below Siskiyou Boulevard with a full ban above the boulevard.  Residents interested in a block party with legal fireworks would obtain the fireworks permit in addition to the street closure permit.  Legal Fireworks permits have been successful in rural areas. 

 

Councilor Voisin/Navickas m/s to approve second reading and adopt the ordinance.

 

City Attorney Richard Appicello read the ordinance title and noted the language stricken under Section 1 15.28.070 Amendment to the Oregon Fire Code (C):  “The use of fireworks is prohibited at all times in the area of the City west of Siskiyou Boulevard and North Main Street,” should be deleted, and the language stricken before that sentence: “…during any declared fire season except when the sale of fireworks is permitted within the State of Oregon pursuant to ORS 480.127 (June 23 to July 6 of each year),” should be shown in bold strike through.

 

DISCUSSION:  Councilor Voisin thought it was unfair to allow only a section of the City to use fireworks and encouraged Council to approve a citywide ban.  Councilor Chapman was not in favor of the motion and wanted to hear more on the permit process.  Councilor Navickas suggested another option that would connect banning fireworks to the fire hazard rating instead of a permit process.

 

Councilor Navickas motion to amend the motion that staff connects the ban on fireworks to the fire hazard rating.  Motion died due to lack of second.

 

Councilor Jackson was interested in further exploring block parties using fireworks.  She understood the fire risk, and the fairness and administrative issues.  She thought the fire hazard declaration could be appropriate.  Councilor Lemhouse would vote for the amendment with the understanding permits would be reviewed.  There was a need for some form of fireworks restriction and a permitting process would be more enforceable. 

 

Councilor Navickas motion to amend the motion to request staff to bring the ordinance back with several options that addressed a permit process or a prescription. Motion died due to lack of second.

 

Councilor Chapman/Lemhouse m/s to call for the question. Roll Call Vote: Councilor Chapman, Silbiger, Jackson and Lemhouse, YES; Councilor Navickas and Voisin, NO. Motion passed 4-2.

 

Roll Call Vote on main motion: Councilor Navickas and Voisin, YES: Councilor Chapman, Silbiger, Jackson and Lemhouse, NO. Motion failed 4-2.

 

Councilor Navickas/Lemhouse m/s to direct staff to prepare an ordinance allowing permitting or a ban tied to the yearly fire hazard.  DISCUSSION: Councilor Navickas thought banning fireworks during high fire season would help protect homes from possible uncontrolled fire although he ultimately preferred a citywide ban.  Councilor Lemhouse was not opposed to a ban but wanted a well thought out permitting process prior to moving forward.  Councilor Voisin explained it was a moral imperative to protect the city, acknowledged the tradition of fireworks and the need to find ways to change and replace that tradition.  Councilor Chapman was concerned the motion was narrowly directed.  Councilor Navickas clarified the motion would be based on the fire hazard level, if it was high; fireworks would be banned, if low, fireworks would be permitted, or an option of the two combined.  City Administrator Martha Bennett explained staff would bring back three options consisting of a total ban, a permit process and a combination.  Councilor Jackson supported a ban above Siskiyou Boulevard with a permit process and was fine tying it the fire hazard.  Roll Call Vote:  Councilor Chapman, Navickas, Silbiger, Jackson and Lemhouse, YES; Councilor Voisin, NO. Motion passed 5-1.

 

4.      Discussion on Nudity Ban

Mayor Stromberg explained why he had changed his original vote and put the nudity ban on the agenda.

City Administrator Martha Bennett presented the proposed map of the city depicting schools, parks and buffer categories.  Council and staff would create a process for organized events, protests and parades using permits or stating in the ordinance that it would not apply to those events. 

 

Paul Huard/201 S Mountain Avenue/Explained he was a parent and a teacher at Ashland High School.  He had no objections to law abiding adults being nude in the privacy of their residence or at places designated for social or recreational nudity.  He questioned the appropriateness of an individual who chose to be nude in public within the environs of a school; this was an issue of appropriateness and safety.  Schools are safe havens for young people who have been abused or molested, and individuals who know they can expose themselves in public near a school could traumatize children.  There was a moral responsibility here and common sense would not allow an unknown individual in a state of nudity near schoolchildren.  Their motivation and character are unknown.  He encouraged Council to draft an ordinance that respects the need to protect children and do the right thing for the community.

 

Karen Hobbs/3510 Hwy 66 #1/Commented on her disgust and the reactions of the children who witnessed the individual who had appeared purposely nude within a school zone.  This was not about this person’s choices; it was about his lack of discretion in where he made those choices.  She stressed the need to protect children and did not believe allowing nudity in school zones promoted education.  She referenced Ashland Schools “be safe, be responsible and be respectful,” and did not see that in the naked man’s behavior.  Ms. Hobbs thanked the Mayor for bringing it back to the table, and urged Council to send a message that put children’s safety and mental well-being first.

 

Juli DiChiro/635 Weller Lane/Addressed Council as the Superintendent of Ashland Public Schools and encouraged Council to adopt an ordinance that prohibits nudity citywide.  Two reasons for having a citywide ban were student safety and the ease of enforcement.  A 200-foot buffer would not protect students and they are more at risk the farther they are from the school when walking home.  A child confronted with a nude adult as he or she is walking home does not have the ability to determine if that adult has harmful intentions.  This puts students in a position to make judgments about potentially dangerous situations without the sophistication to do so.  Society routinely protects minor children at a higher level than adults because children do not possess the capacity to adequately assess potential danger and respond appropriately.  The school district provides age appropriate lessons on child abuse and must be able to tell children that if they are approached by an unknown nude adult they should see that situation as potentially dangerous and report it.  She urged Council not to place children in the situation of having to determine intent and instead provide an absolute standard against which they can measure their safety.  A citywide ban on nudity would make enforcement easier and send a clear message to visitors coming specifically to walk around nude that Ashland treasures and protects its children.

 

Colin Swales/143 8th Street/Read from the Oregon Constitution and noted laws prohibiting public nudity were unconstitutional.  In response to the public outcry regarding this issue, he proposed the following ordinance language:  “9.08.195 Public Nudity: It is unlawful for any person to fail to cover his or her genitalia from public view while in any public place within the City.  This provision is not intended to abrogate, or in any way limit, any person’s right to exercise that person’s protected free expression as provided under the Oregon Constitution.  Such a failure to cover the genitalia is subject to a Penalty under AMC 9.09.250.”

 

Mr. Swales clarified nuisances are considered infractions.  He did not believe public nudity should be criminalized unless there was a sexual content to it and that was already covered by Ashland Municipal Code (AMC) 1.04.010.

 

Derek Volkart/206 main Street, Talent/Explained he was the Chair of the Southern Oregon American Civil Liberties Union (ACLU).  He suggested Council ask Chief Holderness if there was an epidemic of nudity in Ashland and whether the Chief felt he had adequate tools for enforcement of a person exposing themselves to children.  He did not think the City would accomplish what they intended through a citywide ban and did not support one.

 

Ralph Temple/150 Wright Creek/Introduced himself and spoke on behalf of the Southern Oregon Chapter of the ACLU.  Restricting nudity around schools due to one individual was not a healthy reaction.  He understood it required discipline and not getting excited when something unusual happens.  He shared a proposed solution from the ACLU based on state laws that make it a crime for someone to expose themselves with the purposes of lust.  Regarding the man from Minnesota, this individual did not mind that children saw him but it is difficult to determine whether he was targeting children.  The solution would entail police approaching a person nude in a school zone, inform them that children can see them and if they are targeting children with their nudity, they are subject to arrest.  This action would protect children from deliberately being targeted and eliminate the need for a ban on nudity around schools.

 

Mr. Temple confirmed the police department would confront an individual in a school zone with a warning first and clarified this was not a new policy and how the police actually dealt with the Minnesota man.  This was a way to reiterate it as policy so that those who are concerned will know that the police are there to protect the children. 

 

Ruth Alexander/2645 Butler Creek Road/Explained she was a member of the Ashland School Board but spoke as a member of the community and a parent.  Unfortunately, the situation has been set up to where people come to Ashland to walk around naked and not care about members of the community.  These individuals are not part of the community.  People have a responsibility to think about each other and as adults to think about the children.  She was undecided on a total ban but felt a 200-foot restriction around a school was ridiculous since people are walking from home to school.  She noted that sexually abused children are extremely vulnerable and it is our responsibility as healthy adults to help take care of them.

 

Monique Abbett/180 N Wightman/Statement was read aloud that explained her decision to move to Ashland. As a working mother, she wanted assurance that her child can walk home without having to fear running into a naked man along her six-block route.  A man choosing to be nude in an area where children walk to and from school exhibited dangerous and predatory behavior.  She hoped Council would agree that a community should strive to provide safeguards wherever possible for children from potential threats.  Parents need to be assured that civic authorities are working in conjunction with them to keep their children safe.

 

Councilor Navickas motion to direct staff to establish a policy with regard to nudity around schools based on initial warning towards that person. Motion died due to lack of second.

 

Councilor Chapman did not like the ordinance currently in place and thought designated areas of anti-nudity would be unmanageable.  He explained an alternate ordinance that would cover the entire City and wanted to submit it to Council for first reading.  Council consensus agreed to have the City Attorney read the proposed ordinance as first reading.

 

City Attorney read first reading of amendment to Chapter 10.44.012 and 10.44.020 aloud.  Changes included:  Section 1 AMC 10.44.012 Public Nudity:  “It is unlawful for any person to intentionally expose his or her genitalia in view of a public space.  This provision is not intended to apply to a person who is prepubescent.  Striking: “…while on public property in the C 1 D (Downtown Commercial) zone or in a public park,” and striking “…or who has taken steps to create an envelope of privacy upon their own property and the nudity occurs within that envelope.”

 

Section 2 AMC 10.44.020 Penalties:  “Any person violating any section within this chapter shall be guilty of a misdemeanor as set forth in Section 1.08.010 with the exception of Public Nudity which shall be an infraction as set forth in Section 1.08.020.”

 

Councilor Chapman/Lemhouse m/s to approve first reading of an ordinance to amend AMC Public Nudity and place on agenda for second reading and request that prior to second reading the Legal Department review this ordinance and look for correlations to parade and plaza permits.

DISCUSSION: Councilor Chapman wanted to ensure someone was intentionally violating the code by exposing himself or herself in view of a public space.  The ordinance would not impinge free speech and was punishable with an infraction instead of a misdemeanor.  Councilor Jackson thought it was a reasonable proposal and supported the motion.  Councilor Navickas commented this issue touched on how the human body is portrayed and creating moral legislation would invite the ordinance to be challenged.  He explained the history of the ban originated in prohibiting people from wearing low rider pants in the plaza that tourists found offensive and now it had grown into an issue regarding children.   

 

Councilor Jackson/Lemhouse m/s call for the question.  Roll Call Vote: Councilor Jackson, Silbiger, Lemhouse and Chapman, YES.  Councilor Voisin and Councilor Navickas, NO.

 

Roll Call Vote on main motion: Councilor Silbiger, Jackson, Voisin, Lemhouse, YES.

Councilor Navickas, NO.  Motion passed 5-1.

 

NEW AND MISCELLANEOUS BUSINESS (None)

 

ORDINANCES, RESOLUTIONS AND CONTRACTS

1.   Should the Council approve first reading of an ordinance titled, "An Ordinance Amending Ashland Municipal Code Chapter 2.04.090, 2.04.100, and 2.04.110 Relating to Council Rules"?

Delayed due to time constraints.

 

2.   Should the Council approve first reading of an ordinance providing for uniform policies and operating procedures from advisory commissions, committees and boards?

Delayed due to time constraints.

 

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS

1.   Discussion regarding AFR letter  - Delayed due to time constraints.

2.   Discussion regarding Council Seating – Delayed due to time constraints.

3.   Discussion regarding default on a Food and Beverage Tax Agreement – Delayed due to time constraints.

 

SUMMARY OF MEETING

Delayed due to time constraints.

 

ADJOURNMENT

Meeting was adjourned at 10:30 p.m.

Barbara Christensen, City Recorder
John Stromberg, Mayor  
 

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