Agendas and Minutes

City Council (View All)

Regular Meeting

Tuesday, November 07, 2006

November 7, 2006
Civic Center Council Chambers
1175 E. Main Street

Mayor Morrison called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers.
Councilors Hardesty, Amarotico, Hartzell, Jackson, Silbiger and Chapman were present.
Mayor Morrison announced there are volunteer positions available on the Tree Commission and Bicycle & Pedestrian Commission. Applications are also being accepted for terms on the Citizen's Budget Committee beginning in January.  
The minutes of the Executive Session Meeting of October 17, 2006 were approved as presented.

The minutes of the Regular Council Meeting of October 17, 2006 were approved with the following amendments: 1) Page 4, Chris Hearn represents the co-appellant and the applicant Sage Development LLC, and 2) Page 5, Ambuja Rosen's testimony should read "cats and dogs" rather than "an animal".

Councilor Hartzell clarified her comment listed on Page 2 of the minutes should have read, "Councilor Hartzell commented that it doesn't seem that the mechanism is there to appraise the level of demand created for yards and pools."

1. Minutes of Boards, Commissions, and Committees.
2. Annual Ambulance License Renewal.
3. Confirmation of Appointment of David Stalheim as the Community Development Director.
4. Request for Approval of Easement for I.O.O.F Building.
5. Request for Approval of Easement for Public Trail Purposes.
6. Liquor License Application for Azteca Mexican Restaurant.
7. Telecommunications Franchise Agreement with Sprint.
Councilor Hartzell requested Item #3 be pulled in order to acknowledge the new Community Development Director David Stalheim.

Councilor Hartzell/Chapman m/s to approve Consent Agenda Items #1, #2, #4, #5, #6, and #7. Voice Vote: all AYES. Motion passed.

Mayor Morrison explained the process used for selecting the Community Development Director. He noted the site visit that was done and commented on Mr. Stalheim's qualifications. City Administrator Martha Bennett noted Mr. Stalheim would begin working for the City on January 2, 2007.

Councilor Jackson/Chapman m/s to approve Consent Agenda Item #3. Voice Vote: all AYES. Motion passed.

1. Continuation of an Appeal of Planning Action 2006-00078 - Request for an Outline Plan approval under the Performance Standards Option Chapter 18.88 for an 18-unit single-family residential subdivision for the property located at 247 Otis St. An Exception to the Street Standards is requested to allow curbside sidewalk in sections of the Otis and Randy Street frontages to preserve trees, wetlands and the residence at 247 Otis St.
Mayor Morrison called the Continued Public Hearing to order at 7:21 p.m. and read aloud the procedure for Land Use Hearings.

Exparte Contact
Councilor Silbiger stated that one of the appellants, Art Bullock, spoke to him on an unrelated matter.

Councilor Jackson stated she has visited the area.

Assistant City Attorney Richard Appicello clarified this is a Continued Public Hearing and it is not necessary to re-state the potential conflict of interest cited at the previous hearing.

Art Bullock/Voiced his understanding that officials are required to make a public declaration at each session or meeting where the issue is addressed.

Mr. Appicello advised the Council in order to avoid a challenge on this issue it would be best to have any conflicts of interest restated.

Councilor Amarotico stated he has a potential conflict of interest. His brother lives across the street from the site, however this would not affect his ability to make an unbiased decision.

Art Bullock/Stated that Councilor Amarotico has an actual conflict of interest.

Mr. Appicello stated there is no actual conflict of interest that he can determine.

Opponents and Their Representatives (cont.)
Devian Aguirre/Cyndi Dion/Lila Appleberry/Kindler Stout/Art Bullock/Mr. Bullock requested the record be kept open in order to submit a petition asking the developer to pay part of the costs for the Laurel Street Local Improvement District (LID).

Ms. Aguirre clarified there is a condition that requires the water rights be split between the homeowner's association and the owner of Lot 18. Upon approval of the project, they will quantify the amount of water that is required for the pool and guarantee that this amount is insured for the perpetuity of the livelihood of the pool. She stated the balance of the water would likely be used to enhance the wetlands and create a natural-like feature with historical significance on that portion of the property. She added in the event of a sale of the land and the pool, the pertinent water rights would be attached to the property and the first right of refusal would go to the homeowners association.

Mr. Bullock noted the specific water feature has not been established, however the feature will need to be approved at final plan.

Ms. Aguirre stated she would not be opposed to the Council requiring participation in the Laurel Street LID.

Mr. Bullock stated there is no City policy that would require the developer to participate in the Laurel LID and requested a policy be developed so this aspect can be addressed at final plan.

Staff Response
Interim Community Development Director Bill Molnar and Senior Planner Maria Harris addressed the Council. Mr. Molnar clarified there is a section of the Ashland Municipal Code that provides the approval authority the right to consider a condition that would require participation in a local improvement district. There is also a section that discusses the ability of an individual to remonstrate from such a local improvement district. Mr. Molnar noted there has been some discussion by the Planning Commission on whether these sections conflict and it has been suggested that at some point in the near future this be further evaluated. He stated there have been no recent changes to the policy and there has not been any direction to staff that they change this policy. City Attorney Mike Franell clarified this particular code provision is located in AMC 13.20.050(c). Councilor Silbiger noted that the effect of such a remonstrance would only postpone the action of forming a local improvement district for a period of six months. Mr. Franell stated that this is correct.

Mr. Molnar explained this application needs to improve all of the streets within the subdivision to City street standards, as well as the frontage on Randy and Otis. He commented on the Planning Commission's decision for the sidewalk along Randy Street be extended down to the intersection of Laurel and Randy as an offsite improvement. He stated the Applicant has agreed as a condition of outline that at final plan, the City's Engineering Department would reevaluate and determine if there are any other additional offsite mitigation measures that may be necessary; or the Applicant would consent to participate in a local improvement district proportionate to the impact of the development. He clarified at this point, staff has not yet concluded that there is a need for any additional improvements.

Ms. Harris clarified the surrounding streets are improved to City standards; they are paved and have curbs/gutters, however some are missing sidewalks. She stated the application as the Planning Commission approved it was to install sidewalks on the full Otis Street frontage and the full Randy Street frontage and the piece from the property's boundary near Laurel Street to the corner of Randy and Laurel. There was no condition added to the Planning Commissions approval that required the subdivision to sign in favor of a local improvement district. Mr. Harris clarified none of the lots have frontage on Laurel.

Mr. Molnar stated that in the past for local improvement districts similar to Laurel, the Council has created district boundaries beyond just the properties that have frontage because it is a collector street. He stated it would be up to the Council to include this property in a local improvement district. Mr. Molnar noted that the Applicant has agreed to the imposition of an additional condition for their participation in the local improvement district at a future date based on their proportion of impact to the area.

Councilor Hartzell questioned if it was standard for a tree that is not planned for removal to be tagged as a significant natural feature. Assistant City Attorney Richard Appicello clarified this would provide an additional level of protection to the Tree Protection Ordinance. He also clarified the designation of "significant and natural features" requires them to be placed in a common area or open space and dedicated to an association where they will be preserved.

Ms. Harris clarified the last sentence of Condition #33. She stated if at some point in the future Lot 18 were divided and the pool goes away, the homeowners association would have a means to capture the water rights. She also clarified the pool was not deemed "significant" by the Planning Commission, however the water itself was.

Councilor Hartzell questioned if there are wetlands located on Lot 18 that would need to be sustained by this water and asked if transferring the water (in the event Lot 18 was partitioned) could put those wetlands in jeopardy. Mr. Molnar stated clarifying language could be added to the condition to address Councilor Hartzell's concern.

Art Bullock/Requested an opportunity to rebut the new information presented. He stated the information that the developer and city staff have come to an agreement on a new condition is new information. He stated the Appellants have not been provided adequate time to respond to this and it is opposite to what they and the Planning Commission requested, which is that Council set a policy on how developers participate in nearby LIDs. He stated this new condition was reached by the developer and the Legal Department "off line" and is not included in the planning record.

Cyndi Dion/Clarified the reason the appellants asked that the pool be made a significant feature is because there are springs located at the bottom of the pool.

Devian Aguirre/Agreed that the water is a significant natural feature, but stated the pool is not in good condition and is not functioning. She stated they want to protect the water, but do not know that the pool will continue. She noted this is an outline plan and they presented as much information as they could.

Mr. Appicello clarified there were no private meetings between staff and the applicants and stated he is permitted to make recommendations to Council on the language.

Kerry Kencairn/Clarified the water that comes from the well and the water irrigation rights on the property are two separate things. She stated the water irrigation rights go with the land and can be sold or transferred. In regards to the well, she stated there is more water going to the pool than is needed and it frequently overflows into the storm drain. She explained the well does not feed the large wetland area and there is no way to get the well water to this wetland.

Chris Hearn/Stated he contacted the City's Legal Department regarding possible criteria and options in advance of tonight's meeting in order to get an idea of what the Applicant might accept and trying to reach consensus. Mr. Hearn stated the pool and the metal building it is housed in are not naturals feature, but are man-made; however the pool is fed by geothermal spring water, which clearly is a natural feature.

Ms. Aguirre noted the Department of State Lands is the ultimate arbitrator of what will be deemed a wetland and what is considered a viable natural feature in relation to state law. She stated they have agreed that the water itself and where it flows is a significant existing feature, but she stated the structure and the pool itself are in very poor condition. She added the current owner of Lot 18 intends to keep this property in her family in perpetuity and there are no plans to alter it; however if this lot were altered it would have to come before the Planning Commission and at that time additional protections could be put in place. She also clarified originally they were opposed, but are now willing to accept Lot 18 as part of the homeowners association.

It was noted that written and verbal requests were received from Art Bullock to leave the record open for seven days.

Public Hearing Closed: 8:35 p.m.

Mayor Morrison read the procedure for submitting further information into the record.

Ms. Aguirre agreed to leave the record open until November 15, 2006 at 5 p.m.

Councilor Jackson/Hartzell m/s to close the public hearing, but keep the record open for written submittals until November 15, 2006 at 5 p.m. Voice Vote: all AYES. Motion Passed.

Ms. Aguirre stated they would like to submit final written argument. Staff clarified the Applicant needs to be given seven days to submit the final written argument and that deliberations on the appeal could be held at the December 5, 2006 City Council Meeting.

Councilor Hartzell/Chapman m/s continue this appeal to the December 5, 2006 Council Meeting with November 22, 2006 at 5 p.m. being the deadline for the Applicant to submit final written argument. Voice Vote: all AYES. Motion passed.

Philip Lang/758 B Street/Recommended that an ethics provision be included in the City Charter and noted the history of him bringing this request forward. He commented on the ethics violation of Council members accepting Oregon Shakespeare Festival tickets and stated he has filed a complaint with the State Government Standards and Practices Commission for a violation of Section 244.020.

Ambuja Rosen/Spoke regarding her proposed tethering ordinance and noted there is a provision in the ordinance that requires an animal's water source to be either free flowing or in a receptacle that is weighted and/or secured to prevent tipping. Ms. Rosen asked that the Council approve this provision when the tethering ordinance is brought before them.

1. First Reading by title only of an Ordinance Titled "An Ordinance Amending Chapter 2.52 of the Ashland Municipal Code Relating to Rules of Procedure for Personal Service Contracts."
City Attorney Mike Franell stated there are two provisions that deal with public contracting in the Ashland Municipal Code. Goods and services, and public improvement contracts are addressed in Section 2.50, and personal service contracts are addressed in Section 2.52. He explained staff brought forward an ordinance amending Section 2.50 in July, and Council approved the first reading. Staff is recommending the Council amend Section 2.52 as well and have been holding off on bringing back the first ordinance for the second reading until they have had a chance to address this. Mr. Franell stated the proposed ordinance amending AMC 2.52 would: 1) simplify it and make it more in compliance with the current model rules of the State, and 2) increase the amount of personal services contracts that have to come before the Council for approval from $25,000 to $75,000. He stated this change would make it consistent with with the goods and services contracts and public improvement contracts. He clarified that for contracts within this cost range staff would have to obtain quotes and the decision would be made by the department head.

Councilor Hartzell asked what the compelling need was to apply this change to personal service contracts. Mr. Franell noted that recently the City Council has not been getting through all of the items on their meeting agendas. He commented that all of these contracts are included in the budget process and the Council has the opportunity to review them at budget time. He stated they are trying to streamline the process of getting work accomplished and stated Council could adjust the $75,000 amount down if they are uncomfortable with this figure.

Councilor Silbiger commented that the Council hasn't been approving contracts between $25,000 and $75,000. Mr. Franell acknowledged this correction and clarified department heads are currently approving contracts between $25,000 to $75,000; the change is to go to three competitive quotes for these contracts instead of requiring a formal RFP. He also clarified the $75,000 figure was carried over from the goods and services ordinance.

Mr. Franell clarified most Oregon cities similar in size to Ashland have adopted the Attorney General's model of public contracting rules, which state that three competitive quotes have to be obtained for contracts between $25,000 and $150,000 and a formal bidding process is required after $150,000.

Comment was made that the $75,000 seems high and questioned if staff could come back with a procedure that is not as formal as a RFP but more so than obtaining three quotes.

Adminsitrative Services & Finance Director Lee Tuneberg addressed the issue of staff time. He stated there is a significant amount of work involved with an RFP and provided an overview of the process.

Councilor Hartzell suggested reducing the $75,000 limit to $40,000 or $50,000.

Councilor Hartzell/Silbiger m/s to amend 2.52.070(b)(c)to reduce $75,000 to $50,000. DISCUSSION: Councilor Amarotico questioned what happens if staff does not get three responses. Mr. Tuneberg explained staff would evaluate the bids that were received and determine if they meet the criteria of the scope and document that. It is then up to the department head whether to accept the bid or go back out for more bids.Voice Vote: Councilor Hardesty, Amarotico, Hartzell, Silbiger, Chapman, YES. Councilor Jackson, NO. Voice Vote: all AYES.

Councilor Hartzell/Silbiger m/s to approve first reading with amendments and place on agenda for second reading. Roll Call Vote: Councilor Amarotico, Hardesty, Chapman, Silbiger, Hartzell and Jackson, YES. Motion passed.

2. First Reading of an Ordinance Titled, "An Ordinance Adding a New Section to Tittle 14, Chapter 4, Restricting the Addition of Substances to the Drinking Water."
City Administrator Martha Bennett stated at the July 18, 2006 meeting, Council formed a committee to revise a proposed ordinance that would prohibit the addition of any substance to drinking water for the intent of medicating humans. She noted that discussion was held at that time about the addition of fluoride in particular and noted this concern stemmed from the legislature's attemp in 2005 to make fluoridation mandatory. Ms. Bennett stated the committee met once and significantly edited the ordinance to make it simpler and clearer. The committee also wanted to ensure that the City could continue to treat the drinking water to comply with Federal laws and regulations. She stated that staff believes this new ordinance is clean and will not interfere with the City's existing practice of treating the water.

Councilor Hartzell noted she was apart of this committee and suggested an amendment to proposed language in 14.04.050(a) to read "It shall be unlawful and a public nuisance for any person to introduce or add any substance to the public water supply for the purpose of anything but water purification."

Councilor Chapman stated he was also on the committee and questioned why they needed to include the language "for humans". Ms. Bennett clarified this was not needed and could be removed.

Mayor Morrison questioned if it was appropriate to have both "unlawful" and "a public nuisance" in the ordinance. City Attorney Mike Franell clarified that "unlawful" allows the City to issue a citation and "public nuisance" allows the City to step in and take action.

Public Works Director Paula Brown stated she was involved with the committee and is comfortable with the proposed ordinance.

Councilor Hardesty/Chapman m/s to approve first reading and place on agenda for second reading. DISCUSSION: Comment was made questioning if a point of contention could be what constitutes medication. Council briefly discussed possible arguments that could be made.

Councilor Chapman/Hardesty m/s to amend original motion to strike "for humans" from 14.04.050(a). Voice Vote: all AYES. Motion passed.

DISCUSSION (continued): It was clarified Section (a) would read, "It shall be unlawful and a public nuisance for any person to introduce or add any substance to the public water supply for the purpose of acting as medication." Councilor Jackson voiced her concern that there has been no discussion on whether it is appropriate to fluoridate water or given notice to those who might want to participate in this discussion. Councilor Hartzell commented that this agenda item was noticed and stated there would be opportunity for further comments at the second reading. Councilor Chapman noted he had received responses from individuals who oppose this ordinance. Councilor Jackson stated this is a public health decision and the city government does not have a role in this issue. Ms. Brown clarified the City is not currently introducing anything into the water that would be considered medication.

Roll Call Vote on amended motion: Councilor Silbiger, Hardesty, Amarotico, Chapman and Hartzell, YES. Councilor Jackson, NO. Motion passed.

1. Report from Council Committee on Council Rules.
Councilor Silbiger stated the Committee on Council Rules has met twice, and have received the rules from other cities and are in the process of reviewing what was provided. He noted they have not received feedback yet from the other councilors and announced there is a meeting scheduled on November 17, 2006. Councilor Silbiger stated that the committee is looking at dividing what is municipal law and having a separate set of guidelines that are not codified.

City Administrator Martha Bennett clarified that staff is noticing the meetings so it is okay if there is a quorum of the Council present.

Councilor Hartzell shared her concerns about the procedure by which this project is being moved forward. She stated a sub-group of the Council is doing this work at a time when she cannot participate and requested that the meetings be held a time when herself and more citizens can be involved.

Councilor Jackson commented that the subcommittee was set up to refine the council rules language and noted this item would come back to the full Council. She suggested that the draft rules be posted to the City's website to solicit responses from citizens and stated that public input could be taken at a council meeting as well.

Art Bullock/Shared his concerns with the public forums. He noted he has proposed changes that would make the forums more citizen friendly and requested the Council add to their discussion what he has previously proposed. Mr. Bullock asked that the rules include a provision regarding the council meeting video tapes and protection against their destruction and commented on council errors during quasi-judicial proceedings.

Councilor Hartzell/Chapman m/s to extend meeting until 10:30 p.m. Voice Vote: all AYES. Motion passed.

Councilor Hartzell requested the subcommittee reconsider when they hold their meetings.

2. Discussion of Council List Serves.
Director of Information Technology Joe Franell stated that changes were made to the Council list serves a few months ago and there has been some frustration with how this has affected the citizen's ability to communicate with the Council. Mr. Franell submitted a memo that outlined the notes taken during a preliminary discussion on how to enable more effective communication between the members of the Council and the citizens. Mr. Franell reviewed the memo, which outlined communication paths, specific goals, and options for serving the "Citizens to the Council" and "Council to Citizens" communication paths.

Mr. Franell clarified there are two different list serves relative to the Council. The "Council Business" list serve is where the administrative communication takes place; these messages are available for viewing by the public. The "Comment to the Council" list serve is where citizens email the Council as a whole and communicate with the Council and other citizens. This list serve is open to anyone who subscribes to it. Mr. Franell clarified this list serve is un-moderated and was made subscription only to eliminate spam.

Councilor Silbiger suggested the following options instead of having the Comment to the Council be subscription based: 1) include a challenge where the user must type in a series of letters and numbers displayed on the screen, or 2) require the user to enter their email address and a message is sent to the address to make sure it is valid. He commented on the issue of councilors responding to messages and stated it is not a good idea to respond on the list serve but rather to respond directly to the individual.

City Attorney Mike Franell clarified the problem with responding on the list serve is that it can turn into a deliberation among the councilors. If councilors with different opinions are weighing in online, this can become a defacto online public meeting, which violates the open public meetings laws.

Comment was made suggesting the Council revisit the legal guidelines for how they should use email.

Mayor Morrison expressed his concern with there being too much emphasis on electronic communication and stated this fosters an exclusive dialogue among the online elite and isolates citizens who are not hooked up to the internet.

Art Bullock/Stated that requiring citizens to provide an approved address stops them from responding. He stated the list serves have been driven underground by staff and commented on his experience with his own list serves. Mr. Bullock stated that when Council sends an email that becomes a public record and this communication needs to be made in public.

Councilor Hartzell clarified her intent for bringing this issue forward and stated it was an attempt to characterize the problems that have been encountered and for Council to work together to find solutions that staff can implement.

3. Announcement by Councilor Jackson.
Councilor Jackson announced that Secretary of State Bill Bradbury would be in Ashland on December 3, 2006 to deliver a presentation of Al Gore's "An Inconvenient Truth". The presentation will be held at the Mountain Avenue Theater at Ashland High School. For further information citizens should contact Mary McClary in the Conservation Department or herself.
Meeting adjourned at 10:25 p.m.

Barbara Christensen, City Recorder
John W. Morrison, Mayor

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