MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
October 3, 2000, 7:00 p.m.
Civic Center Council Chambers, 1175 E. Main Street
PLEDGE OF ALLEGIANCE
Mayor Shaw called the meeting to order at 7:00 p.m. in the Civic Council Chambers.
Councilors Reid, Hauck, Hanson, Wheeldon and Fine were present, Councilor Laws was absent.
APPROVAL OF MINUTES
The minutes of the Regular Council Meeting of September 19, 2000, were approved with amendment to page 1, under Public Forum, to reflect the following change under Bob Taber testimony; "Shaw stated council did not make this decision that voters did in a 62% overwhelming approval."
SPECIAL PRESENTATIONS & AWARDS
1. Mayor read Proclamation of National Fire Prevention Week .
2. Mayor read Proclamation of Breast Cancer Awareness Month.
3. Mayor read Proclamation of National Domestic Violence Awareness Month.
1. Minutes of Boards, Commissions and Committees.
2. Liquor License Application from Dennis Godfrey dba Ashland Springs Hotel.
3. Confirmation of judge pro tem appointment.
Reid requested item #3 be pulled from the Consent Agenda to allow for discussion.
Councilors Hauck/Reid m/s to approve Consent Agenda items #1 & #2. Voice Vote: all AYES. Motion passed.
It was noted that City Attorney Paul Nolte would be performing the wedding ceremony of his daughter.
Councilors Reid/Hauck m/s to approve Consent Agenda #3. Voice Vote: all AYES. Motion passed.
1. Public Hearing on Appeal of Planning Action 2000-074, a request for a site review for the construction of a new theater and a conditional use permit to allow the fly tower to exceed 40 feet in height. Project is located on Hargadine Street and east of South Pioneer Street, including the construction of a parking structure. (Appellant: Swales/Lang, Applicant: Oregon Shakespeare Festival) (PUBLIC HEARING CONTINUED TO OCTOBER 17 AT 7:00 P.M.)
PUBLIC FORUM (None)
UNFINISHED BUSINESS (None)
NEW AND MISCELLANEOUS BUSINESS
1. Council Meeting Look Ahead.
Reid reminded the public, who might have questions regarding the upcoming Bonneville Power Administration (BPA) Wholesale Power contract scheduled for the next council meeting, that questions should be directed to staff before the meeting. It was noted that BPA intends to have all contracts in place by October 31, 2000.
2. Adoption of Social and Human Services Element of Strategic Plan.
Hauck reported that the committee had considered all the suggestions presented at the August 15, 2000, council meeting, and incorporating the changes into the Plan presented to the council for approval. He explained how and when the plan would be implemented as part of the Strategic Plan process and noted that the language had been changed to make it more aspirational. He stated that the plan is another way of providing a list of resources to staff, council, and committees.
Scoles explained that if the council adopts the Social and Human Services element, it would be incorporated into the annual City strategic planning
Councilors Hauck/Wheeldon m/s to approve adoption of Social and Human Services Element of Strategic Plan. Voice Vote: all AYES. Motion passed.
3. Motion to dismiss Appeal regarding Oregon Shakespeare Festival Performing Arts Theater and Parking Structure.; Shaw announced the Public Hearing process to hear arguments on the motion to dismiss appeal regarding OSF and parking structure.
Councilors Reid and Wheeldon stated that they each had contact with a local business owner. Both conversations included discussion and questioning on whether it was better to allow the appeal, or to make a decision before hearing the entire appeal process.
Councilor Fine stated that he had attended a planning conference and overhead discussion regarding the present hearing and the appellant’s failure to speak on the approval criteria. He stated that none of the information he overheard influenced his decision.
PUBLIC HEARING OPEN: 7:23 p.m.
John Hassen, Attorney for OSF, distributed a memorandum in support of a Motion to Dismiss. Hassen stated that the appeal filed by the appellants is irrelevant in this proceeding as they failed to state the reasons for the appeal when they filed their challenge to the motion to dismiss. As the grounds were not filed, OSF was not given the opportunity to prepare for rebuttal. He stated that he had conducted research at the State level, and found the case of Johns v. City of Lincoln City, which was decided in 1997.
In this case, the Lincoln City ordinance provided as follows: "The Notice of Appeal that is filed with the City shall indicate the interpretation that is being appealed and the basis for the appeal." In addition, the Lincoln City ordinance stated the hearing would be a de novo hearing, just as in this case with the Ashland City Council.
Hassen felt that because this was a de novo hearing, one could argue no prior notification for basis for appeal is required, as was the case in Lincoln City. He explained that the Court decided, that because there was a challenge under Oregon Statutes and Policies, which are inclusive, there is no basis for reading of the text of ORS 227.175(10)(a), precluding local requirements, and that the issues presented on appeal must be specified in advanced. The Statute confers a right to a plenary appeal, which does not mean any appeal proceeding or one that is plenary in scope may be obtained without following applicable procedures for appealing and for defining the basis for appeal. The Court went on further stating that the statute does not proscribe local legislation to require a Notice of Appeal set forth with reasonable particularity the issues the appealing party will raise at the hearing. The Court in the Lincoln City case finally decided that avoiding the exclusion of citizens from the decisional process is a recognized and fundamental aspect of Oregon’s Land-use scheme. Hassen stated that the Code clearly states that the basis for appeal is required and added that the Ashland Municipal Code Section 18.108.110.A states that appeals, "shall be initiated by a notice of appeal filed with the City Administrator." He noted that the appellant’s appeal was filed with the Planning Department, but he is willing to concede that council could decide filing with the Planning Department is sufficient for the purposes of the appeal, and is willing to allow the matter to drop. Hassen requested that the council dismiss the appeal on the basis of the second point made regarding defining the basis of appeal.
Hassen clarified for the council, that an appellant is entitled to full hearing, but if the city has an ordinance requiring specification of reasons for appeal, evidence for presentation would only be on the points raised as issues for appeal. He noted that there is nothing in the record showing that anyone had challenged the issue.
Phillip Lang/758 B Street/ Voiced his concern that he was not given the opportunity to read the memorandum handed out by the applicant, or allowed to perform research of his own based on the findings, prior to this meeting. He disagreed with the statements made by the applicant in the memorandum where the applicant had asked the council to deny the appeal on two technical reasons. Lang explained that he filed the first response to the memorandum on September 25, and the second response on October 3. As council had not received copies of this appeal, he distributed handouts and Exhibit B, which was part of his first appeal filing.
Lang explained that he was initially directed to file the appeal, by City Administrator Almquist’s executive assistant, with the Planning Department, which is in the record for 1995. Lang provided Exhibit C, with the September 25 response, which indicated that of the twelve appeals, only two were filed with the City Administrator. He stated that the basis of the appeal was referenced in his appeal, by extensive oral and written testimony, at the Planning Commission hearing on August 8. He added that the issues he raised were neither responded to nor acknowledged at Planning Commission meeting, and noted that he had asked if there any questions after his presentation, of which there were none. Lang stated that the representative for the applicant dismissed all the questions and issues by declaring them "irrelevant." Lang stated that the hearing and appeal process is quasi-judicial, and as such, extensive information is incorporated by reference, as well as materials brought forth as public record. In 1995, as directed by the City Administrator, he referenced the appeals, and again this time.
Lange explained that because figures had changed in response to the city attorney’s analysis, which differed from his, he reviewed and reconciled the numbers with the city attorney’s findings, which is summarized on page four of the handout. He stated that, of the twelve analyzed, only one showed no basis stated and that two, which indicated no basis stated, are referenced in the appeal letter. Lang continued that five state the basis and one shows the basis was not raised at the hearing, but was sited as a basis for appeal. He commented that one basis, as claimed by the city attorney, was is a "reach" by his own standards, as the appellant did not testify at the hearing. Lang concluded that consistency, quality of treatment, and fair play, calls for the council to hold the appeal hearing as requested.
Colin Swales/461 Allison Street/Stated that the request for appeal is complete, as the two-page detailing of the grounds for appeal, was referenced.
Nolte clarified for the council that the appeal never raised the issues of either qualifying or complying with the ordinance. He explained that the council may make a motion to allow appellants to cure any defects by submitting an appeal complying with requirements, if the council finds that this is a procedural rather than a jurisdictional defect. Nolte further explained that it is within the council’s discretion to determine if the criteria have been met and that the burden to prove the criteria has been met, falls on the applicant.
Nolte clarified that the staff person in the Planning Department is a recipient and does not analyze applications for correctness, but if requested by appellants will explain the requirements. He did not feel that it is the responsibility of the Planning staff to advise applicants as to whether or not they have complied with the law. Nolte also clarified, that if the council does not grant the motion, it would not constitute a final decision that could be appealed to LUBA. He explained that the appeal would first come to the council and then the applicant would wait until a decision was made on the merits of the appeal before it could be taken to LUBA.
Fine noted that the City of Ashland ordinance is less specific and allows more flexibility of interpretation in comparison to the Lincoln City ordinance. He felt that where the City of Ashland ordinance states, "Failure to pay the Appeal Fee at the time the appeal is filed is a jurisdictional defect," makes any other defects non-jurisdictional. Because of this, he sees the defect as procedural, not jurisdictional. He stated that because this is a de novo hearing, which allows the appellant to voice all concerns, the applicant is forewarned and can prepare. Fine felt that there was no substantial prejudice that might be done to the applicant, if the council should deny the motion and allow the appeal to go forward. He further indicated that he would like the appellants to make a more precise memorandum, identifying the points they plan to speak on, and to provide a copy to Mr. Hassen at least five days before the hearing.
Nolte supported Fine’s interpretation and explained that the council must decide if the defect is procedural or jurisdictional. He requested that an additional requirement be made, that the appeal be filed in a timely manner, as this is not identified specifically in the ordinance as a jurisdictional defect. Nolte explained that if the council should identify this as a procedural defect, it would mean that the time for filing the appeal never runs out, and no one would know when the decision is final. Nolte recommended that the council determine the defect to be jurisdictional.
The council discussed the manner in which the speakers should be allowed to voice their thoughts and Shaw read the names of those who had signed up to give public testimony. Wheeldon noted, and the council agreed, that the speakers should talk only on the motion to dismiss and not on the appeal.
Marilyn Briggs/590 Glenview Drive/Stated that the procedure for filing the appeal was not made clear to the appellant and urged the council to adopt the wording of the ordinance so that future appeals are turned into the city attorney. She suggested that two to three working days be allowed for verification of requirements, notification to the applicant on findings, and time allowed to make corrections. Briggs requested that the council find this to be a procedural defect rather than a jurisdictional defect.
Bob Taber/97 Scenic/Urged the council to not dismiss the appeal, by allowing the appeal to continue, as it opens the subject to additional public input. He felt that the City and the project would benefit, as he felt that the design is not the best that could be developed, and that the applicant could benefit by hearing all of the public comments.
Bill Street/180 Mead/Stated that the contact he has had with City staff has been wonderful and urged the council to maintain the rapport between the City and its citizens. He felt that the applicants have the right to appeal and that the council has nothing to lose, and everything to gain, by hearing the appellants out.
Paul Mensch/He did not agree with the request to deny the request to dismiss, and noted that he had easily found the information for filing an appeal on the City website. He explained that the ordinance states that, "the notice shall include the specific grounds for which the decision should be reversed or modified" and it is clear that this was not done. He urged the council to deny the appeal.
John Freedom/Noted his past experiences on appeal processes and stated that he did not have trouble filing. But, he felt that not all citizens have the same level of understanding when applying for appeals. He questioned if a procedure could be put in place that would ensure that an applicant’s appeal would be reviewed for accuracy before the check is cashed. Freedom declined the opportunity to take "sides" and concluded by urging the council to review the procedure for applying for an appeal.
Hassen stated that there was substantial public input at the Planning Commission before a decision in this matter was made. He does not believe that staff should be burdened with the responsibility of determining if applications for appeals meet all requirements. He suggested, that should the council decide to deny the appeal, that they also consider refunding the application fee.
Reid questioned how the situation would be handled if it were reversed, such as a large nonprofit organization requiring an individual to continue with possibly expensive litigation, as this could set a precedent for future cases. She felt that it was important to put things on a level the playing field, and noted that all parties have the obligation to fill forms out as required by City ordinance.
Hauck felt that the appellants made a good-faith effort and that they made a procedural error because they did not follow the ordinance exactly. He also agreed with Fine that because it is a de novo hearing, the procedural error does not substantially harm the applicant, as they need to come prepared for any eventuality. Hauck felt that in the future, it should be made clearer to people applying for appeals, that they need to include the required statements as written in the ordinance.
Reid voiced her concern that the council may be biasing the decision based on the players, and that the perception is a large company against two individuals in the community. She questioned if the roles were reversed and the individuals were being forced to continue with possibly costly delays that opinions may be swayed in the other direction.
Hauck disagreed with Reid, and did not feel that this is the case. He stated that the expectation of a case would be based on how previous cases were processed, and to find that what was submitted was not sufficient, is simply procedural in nature.
Wheeldon commented, that if the situation were reversed, the council would not be caught with a lack of clarity and noted that this is a large project, which will have a large impact on the community.
Councilors Fine/Hauck m/s to dismiss the appeal on the grounds that while there is a defect, it is procedural not jurisdictional; to direct appellants to deliver by October 9, 2000, a better Statement of Grounds for Appeal both to the City Administrator and Mr. Hassen’s office; to direct staff to prepare a draft order explaining why the council is denying the motion to dismiss; and to invite staff to further refine the ordinance. Roll Call Vote. Wheeldon, Fine, Hauck, Hanson YES, Reid No. Motion passed.
4. ADA Compliance Review Settlement Agreement with the U.S. Department of Justice.
Nolte explained that the disability rights section of the US Department of Justice surveyed the City’s facilities in February 2000 for compliance with the American’s of Disabilities Act. The survey was part of a nationwide program to survey cities, counties, and states to see how the act was being applied. He noted that approximately $180,000 has been spent, and an excess of $100,000 is still needed to fulfill all the requirements.
Councilors Fine/Reid m/s to approve the settlement agreement and authorize the mayor to sign the agreement on behalf of the city. Voice Vote: all AYES. Motion passed.
5. Consideration of street cut request on Sherman Street to replace a collapsed sewer line.
Councilors Hanson/Fine m/s to approve staff recommendation on allowing a street cut on Sherman Street. Roll Call Vote. Hanson, Reid, Wheeldon, Hauck, Fine YES. Motion passed
Request for Approval of a City Water Service connection to property at the end of Tucker Street (39-1E-05BD Tax Lot 2200) outside City Limits, but within the Urban Growth Boundary.
Councilors Fine/Hanson m/s to approve staff recommendation to deny request for city water connection. Roll Call Vote. Wheeldon, Reid, Hauck, Hanson, Fine YES. Motion passed.
ORDINANCES, RESOLUTIONS AND CONTRACTS
1. Second reading by title only of "An Ordinance amending Section 14.08.030.C of the Ashland Municipal Code by removing the requirement for proximity to an existing sewer main before dwelling outside City Limits may be connected to City Sewer."
Councilors Hauck/Hanson m/s to approve Ordinance #2861. Roll Call Vote: Hanson, Fine, Wheeldon, Reid, Hauck YES. Motion passed.
2. Approval of Intergovernmental Agreement with the Ashland School District for School Activities Levy.
Councilors Fine/Wheeldon m/s to approve Intergovernmental Agreement. Roll Call Vote: Hauck, Wheeldon, Fine, Reid, Hanson YES. Motion passed.
OTHER BUSINESS FROM COUNCIL MEMBERS (none)
The meeting was adjourned at 8:55 p.m.
Barbara Christensen, City Recorder/Treasurer