Agendas and Minutes

City Council (View All)

Regular Meeting

Tuesday, May 15, 2007

May 15, 2007
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.
Councilor Hardesty, Navickas, Hartzell, Jackson, Silbiger and Chapman were present.
Mayor Morrison announced there are vacancies on a number of City commissions.
The minutes of the Executive Session meeting and Regular Council meeting of May 1, 2007 were approved as presented. In regards to the Regular Meeting minutes, Councilor Hardesty clarified she also was in favor of the Imperatrice Property proposal.
Mayor's Proclamation of National Emergency Medical Services Week was read aloud and members of the City's Fire & Rescue staff were recognized.
1. Minutes of Boards, Commissions, and Committees.
2. Approval of Public Contract for Legal Consultant Services Relating to the Mt. Ashland Association Ski Area Expansion.
Councilor Jackson requested Item #2 be pulled for discussion.

Councilor Jackson/Silbiger m/s to approve Consent Agenda Item #1 . Voice Vote: all AYES. Motion passed.

Councilor Jackson noted that Mt. Ashland Association had withdrawn from the mediation efforts with the City, and clarified this item is on the agenda in order to give the City Administrator the authority to spend the money necessary to cover the City's legal services.

Suzanne Frey/1042 Oak Knoll Drive/Commented on time management and fiscal responsibility and stated this is relevant to this issue. She noted Mt. Ashland Association may have withdrawn from mediation because of the expense, and questioned why the City was using taxpayer money for this purpose. Ms. Frey stated that if this issue goes onto further litigation, it could cost the City hundreds of thousands of dollars and questioned why the City wants to continue to fight against this valuable community resource. She commented on the benefits of the ski area and stated it costs the City nothing and the expansion would endanger nothing.

Alan DeBoer/2260 Morada Lane/Requested that the Council vote "no" on the proposed contract and that they needed to stop the legal issues with Ski Ashland. Mr. DeBoer noted the budget issues the City is currently facing and asked that the Council not waste legal fees on opposing the ski area expansion. He commented that the ski area is a resource and helps the City immensely in the winter and suggested the Council let the Mt. Ashland Association Board and the Forest Service be responsible for their duties, and let the City get back to what it should be doing.

Councilor Hartzell/Hardesty m/s to approve Consent Agenda Item #2. DISCUSSION: Mayor Morrison noted the Council Communication states the amount for services is not to exceed $75,000; however, he could not find where this cap is listed in the contract itself. Administrative Services Director Lee Tuneberg clarified the cap was included in the engagement letter, but the contract can be amended to include this figure as well. Mayor Morrison voiced his preference for this to be included in the contract itself and Mr. Tuneberg confirmed that this would be done. Roll Call Vote: Councilor Navickas, Jackson, Hartzell, Hardesty, Silbiger and Chapman, YES .Motion passed.

1. Public Hearing of Adoption of a Resolution Levying Special Benefit Assessments for the Nevada Street Local Improvement District No. 85 and Adoption of Findings.
City Engineer Jim Olson explained there are three actions that need to be completed; however, it is not necessary that they all be completed this evening. The first action is the public hearing, the second is the approval of the resolution, and the third is the adoption of the findings. Mr. Olson clarified the resolution accepts the assessment rate and allows the City Recorder to begin the collection process and noted the findings are intended to reflect everything that has happened in regards to this process.

Mayor Morrison called the public hearing to order at 7:22 p.m. He explained the process for participating in the hearing and stated any written challenges would be addressed after the Council declares conflict of interest and ex parte contact.

Abstentions, Conflicts, Ex parte Contacts
Councilor Chapman reported no conflicts or ex parte contact and stated anything that has happened in the past have already been disclosed in the record.

Councilor Silbiger stated he has no ex parte contact to report, but noted that prior to his being on the Council, Mr. Bullock presented the conflict of interest issue to him. He added that he has driven down Nevada Street since the completion of the improvements. Councilor Silbiger stated he has not prejudged the application, is not prejudiced or biased from prior contacts, and will make a decision based solely on the application of the relevant criteria and the standards to the facts and evidence in the record for this proceeding.

Councilor Hardesty stated she had spoken with her late husband Jack Hardesty and Art Bullock in the past about this. She stated she has not prejudged the application, is not prejudiced or biased from prior contacts, and will make a decision based solely on the application of the relevant criteria and the standards to the facts and evidence in the record for this proceeding.

Councilor Hartzell indicated she performed a site visit a few weeks ago to view the completed improvements. She noted she had previously declared on the record prior contact with Mr. Bullocks and a group of the neighbors early on in the process regarding the design of the project and the conflict of interest issue. She added she had also met with Mr. Bullock, Mrs. Knox, and prior City Administrator Gino Grimaldi about the conflict of interest issue. Councilor Hartzell stated she does not believe anything she learned from that process would prejudge her decision and stated the assessment itself was not discussed.

Councilor Jackson noted that she has participated in all of the previous public hearings and attended one or two of the neighborhood meetings early on in the process. She stated she has not had any ex parte contact regarding the assessment, has not prejudged this application, is not prejudiced or biased, and will make a decision based solely on the application of the relevant criteria and the standards to the facts.

Councilor Navickas stated he is an acquaintance of Art Bullock, however he does not have any ex parte contact to report. He has not prejudiced this application, is not prejudiced or biased by prior contacts or involvement, and will make a decision based solely on the application of the relevant criteria and the standards to the facts and evidence in the record for this proceeding.

Mayor Morrison stated he has been involved in process since this issue began and stated he has not had any contact with anyone or received any materials relative to this phase in the process. He stated he has not prejudged this application, is not prejudiced or biased, and will make a decision based solely on the application of the relevant criteria and the standards to the facts and evidence in the record.

Mayor Morrison explained any person has the right to rebut the substance of the evidence or information disclosed during the normal time allowed for testimony. He asked the City Recorder if any challenges had been received and it was reported that challenges had been submitted by Art Bullock pertaining to Mayor Morrison, Councilor Jackson, Councilor Chapman and Councilor Hartzell. The four challenges were entered into the record and Assistant City Attorney Richard Appicello provided a summary of the challenges.

Mayor Morrison, Councilor Jackson, Councilor Chapman, and Councilor Hartzell all stated on the record that they did not prejudge the application, are not prejudiced or biased by prior contact or involvement, and would make a decision based solely on the application of the relevant criteria and standards to the facts and evidence in the record of this proceeding.

Staff Report
City Engineer Jim Olson explained the purpose of the public hearing is to hear objections to the assessments and noted that staff had not received any written objections or requests for adjustments to the assessment. Mr. Olson provided the background information for this project and briefly commented on the lawsuit filed by Mr. Bullock in Circuit Court.

Mr. Olson summarized the assessment scenarios as the following:

The assessment rate as specified under Resolution 2004-31 is $575.20/unit.
The maximum increase of 10% results in a rate of $632.72.
If the formula specified under Resolution 1999-09 had been strictly adhered to, the rate would have been $716.48/unit, an increase of 24.5%. 
If the assessment were to be recomputed based upon the final project cost and at the correct participate rate as specified under Resolution 1999-09, the final assessment rate would be $1,347.08/unit, an increase of 134.2%.

Those Wishing to Provide Testimony
Art Bullock/
Voiced his objection to the process and stated it is not possible to challenge ex parte contact in writing when it was disclosed just minutes ago. Mr. Bullock claimed that several councilors are personally biased against him and stated the Mayor and three of the councilors failed to disclose information received from the neighborhood meetings. He stated his prior request for copies of email correspondence went unanswered and stated that Mr. Olson was aware that the percentage Ms. Brown told him to use for the assessment was incorrect and did not disclose this to Council. Mr. Bullock commented that Ms. Brown did not properly disclose her conflict of interest and stated it is improper to proceed with this hearing until this has been remedied. Mr. Bullock submitted copies of CDs from previous Council Meetings into the record, and requested the full record from the Circuit Court case also be included in the record.

Public Hearing Closed
Mayor Morrison closed the public hearing at 7:56 p.m.

Advice from Legal Counsel and Staff
Assistant City Attorney Richard Appicello clarified anything that happened outside of the meetings would need to be disclosed as ex parte contact. He added if Council received any additional materials a declaration of the substance of those materials also needs to be incorporated into the record.

Mr. Appicello briefly commented on the outcome of the Circuit Court case and noted the Court ruled in the City's favor on almost every allegation that was made, including the allegations of Ms. Brown having a conflict on interest. He clarified the Court was satisfied by the City's findings, but he recommended that the Council postpone the adoption of the findings until the next Council Meeting so that staff can specifically address some of the allegations made regarding bias, conflict of interest, and prejudgment. Mr. Appicello also recommended the Council consider leaving the record open if they feel there is any additional ex parte contact that needs to be disclosed.

Councilor Jackson stated Mr. Bullock's request for emails was related to one of the earlier suits and clarified she had responded to his request. She added that all of the meetings she attended were public meetings and she has had no conversations with anyone regarding the assessment.

Councilor Chapman noted he had disclosed his prior participation in the neighborhood design meetings at a previous hearing, and added that he was not on the Council when these meetings occurred.

Mayor Morrison noted he also attended some of the design meetings, but did not participate.

It was noted that Mr. Bullock has the minutes from the neighborhood meetings, and was the one who wrote the minutes.

Councilor Navickas questioned Council's recourse to address the conflict of interest issue raised against Ms. Brown. Mr. Appicello clarified that this issue has already been addressed by the Court and in the findings that the Council adopted. Mayor Morrison added Ms. Brown came before Council two years ago and answered Council's question to their satisfaction, and all of this is included in the record.

Council Deliberation and Decision
Councilor Hardesty commented that the judge ruled that the City did err in its computation of the credits, however the City is not required to revise the formula. Mr. Appicello clarified this is correct and stated they could assess the increase of ten percent and utilize other City funds to pay the remainder of the project costs.

Mr. Appicello commented on his suggestion to leave the record open and clarified this is only necessary if the Council feels there is anything that was not disclosed.

Councilor Jackson stated she has nothing to add to the record and noted they could make a decision and have the findings come back for approval at the next Council Meeting.

Councilor Hartzell commented that she has some emails on her home computer, but is unsure if they are related to the assessment. She voiced her preference to leave the record open and adopt the findings at the next council meeting.

Mr. Appicello suggested if Council finds something that should have been disclosed, that they forward it to the City Recorder and staff will give notice to the interested party and give them the opportunity to rebut. He stated they do not need to leave the record open at this time unless they have something to add.

City Recorder Barbara Christensen clarified if a councilor received correspondence that was sent as a group email to the entire Council, this has already been incorporated into the record. She stated a councilor would only need to forward her an email if a person sent correspondence only to a particular councilor. Ms. Christensen also clarified all emails sent to the Council regarding the Nevada Local Improvement District have been made part of the record.

Councilor Jackson/Chapman m/s to approve Resolution #2007-17. DISCUSSION: Councilor Jackson voiced her support for moving forward and noted staff received no complaints on the assessment. Councilor Hartzell received clarification from legal on the limits of adjusting the assessment. Councilor Silbiger stated at this point he does not support changing the assessment. He noted the residents do not object and suggested they accept the resolution and move on. Roll Call Vote: Councilor Hartzell, Jackson, Navickas, Hardesty, Silbiger and Chapman, YES. Motion passed.

Councilor Hartzell/Jackson m/s to continue the adoption of Findings for Nevada Street LID #85 to the next regular City Council Meeting. DISCUSSION: Mr. Appicello suggested the Council change the effective date of the resolution to the next meetings date to correspond with the adoption of the findings. Councilor Hartzell restated motion as "advance the adoption of the findings on the Nevada Street LID as well as the adoption of the resolution associated with it to the next regular meeting." Roll Call Vote: Councilor Chapman, Silbiger, Jackson, Navickas, Hartzell and Hardesty, YES. Motion passed.

2. Public Hearing to Declare Real Property on Strawberry Lane as Surplus and Authorize Sale of Lot #103.
Administrative Services Director Lee Tuneberg provided the staff report and recommended Council declare the residential property owned by the City as surplus, and authorize staff to dispose of Lot #103 to the high bid received on April 30, 2007. Mr. Tuneberg clarified the bid came in at $462,000 and noted staff would be bringing back the three remaining parcels individually.

Comment was made noting that Council had discussed using the income from the sale of these lots for affordable housing, and questioned if there is anything that specifically limits the use of the funds for this purpose. Mr. Tuneberg clarified a portion of the funds has already been dedicated to payback the General Fund for the costs associated with removing the restrictions on The Grove. In addition, it was also identified that a portion would be used to help pay for the property the City purchased for affordable housing behind the Ashlander. He noted the Council had previously identified using the remainder of the funds for affordable housing; however, the Council has the authority to change how they want to use the remainder of the proceeds.

Public Hearing Open: 8:45 p.m.

Catherine Dimino/423 Strawberry Lane/Stated when she purchased her property she had heard that these City lots would be used for a neighborhood park and noted the City's Comprehensive Plan talks of the need for parks. Ms. Dimino stated the lots are visible to many of the houses in her subdivision and recommended if they are used for residential homes that the structures adhere to the same design requirements of the subdivision. She stated some of her concerns include the character of the neighborhood, landscaping, and the requirement for a fire suppression system. She stated a lack of a fire suppression system places the other homes in the area in danger and suggested the City lots be made part of the Strawberry Meadows Subdivision.

It was clarified that many of the subdivisions external requirements were incorporated into the provisions for these lots, and there is additional land on two sides of the lots that is designated as park land. It was noted that it is the decision of the Parks and Recreation Commission as to how and when to develop the designed park land, and Ms. Dimino should check with the City's Planning Department if she is interested on which requirements were incorporated into the property.

Public Hearing Closed: 8:55 p.m.

Councilor Navickas/Jackson m/s to declare the real property on Strawberry Lane, lot #103, as surplus property and authorize the sale of lot #103 to the successful bidder with any subsequent conversion of lots #104 and #102 to come before the Council for approval prior to sale or disposal and reiterate that this money is earmarked for affordable housing. DISCUSSION: Councilor Navickas clarified his motion and stated any additional funds outside of what is owed for the Grove has been earmarked for affordablehousing. Councilor Chapman voiced his concern with the Council's previous decision to circumvent the subdivision. It was restated that interested citizens can contact the Planning Department to find out what restrictions apply to the property. Roll Call Vote: Councilor Hartzell, Jackson, Hardesty, Chapman, Silbiger and Navickas, YES. Motion passed.

3. An Appeal of Planning Action 2006-01784 - Request for a Physical Constraints Review Permit for development in the Wrights Creek Floodplain an Riparian Preservation Area to improve and widen a portion of an existing driveway, re-grade a portion of Grandview Drive and extend utilities to serve a single-family residence for the property located at 720 Grandview Drive.

Public Hearing Open: 9:01 p.m.

Councilor Hartzell/Jackson m/s to continue the Public Hearing for the appeal of Planning Action 2006-01784 to the June 19, 2007 Council Meeting. Roll Call Vote: Councilor Navickas, Jackson, Hartzell, Chapman, Silbiger and Hardesty, YES. Motion passed.

Art Bullock/Spoke regarding the text of the charter ballot measures and claimed the final text was not entered into the record in such a way to be permanent. Mr. Bullock asked the Council to state for the record the location of the official final version of the ballot measure language and asked if there is any guarantee that the text will not change henceforth.

City Recorder Barbara Christensen clarified there were some initial changes to the text of the ballot measures, but the information is posted to the City's website and there have been no further changes. She stated this information is readily available on the website and has been for some time. City Administrator Martha Bennett clarified the original posted document was the earlier version that did not include the amendments that the Council adopted. She stated as soon as staff noticed this mistake, they posted the correct version and there have been no further changes.

Ambuja Rosen/Commented on the proposed tethering ordinance. Ms. Rosen stated if children were chained up at their home she would not need to speak more than once to the Council to have this stopped, but she has been campaigning for 16 months for a chaining law for animals. She questioned what is so different about dogs and other animal family members and commented on discrimination of different species. Ms. Rosen cited examples of how animals are not that different from people, and requested the Council adopt a chaining law to protect them from abuse.

1. City Attorney Recruitment.
City Administrator Martha Bennett presented an alternative selection process for the City Attorney interviews. She explained her proposal for a two-step process. The first step would include a Council panel, a lawyer panel to include citizens and other individuals in the legal aspect, and a citizen/volunteer panel. She stated following the first step, two or three finalists would be selected to proceed to the second round of interviews, which would include a moderated discussion broadcast on RVTV, an informal opportunity to meet with department heads, and a second interview with the full Council. Mr. Bennett stressed that this is Council's process and they need to feel comfortable with what they do.

Ralph Temple/150 Myer Creek/Voiced his support for the process presented by the City Administrator and commented on community participation during the selection of the Police Chief.

John Stromberg/252 Ridge Road/Stated the members and representatives of the Southern Oregon Community Coalition have been communicating with Ms. Bennett and the Mayor and are very pleased with their willingness to entertain new ideas. Mr. Stromberg stated this gives the public the sense that this Council is genuinely interest in citizen participation and voiced support for the proposed process.

Art Bullock/Commented on the TV interviews and stated these are important to assess how a candidate speaks on camera and communicates to the Council and the public. Mr. Bullock encouraged the Council to consider a two hour televised interview and requested they include three candidates in this part of the process.

Council voiced their support for the process outlined by the City Administrator. Ms. Bennett clarified herself and the Mayor are in the process of preparing a list of candidates to participate on the panels and they will be submitting this information to the Council once it is established. She noted the City always receives more offers from individuals wanting to participate than they can accommodate, and noted the need to keep the panel size manageable.

1. Update on Solar Project/Permission to Proceed.
Electric Director Dick Wanderscheid provided the background information for the Solar Project and stated the three purposes of the project are to: 1) increase community's awareness of the role of solar energy in meeting the community's future energy needs, 2) allow Ashland citizens and businesses that have limited solar access or limited financial resources to invest in a solar electric system, and 3) overcome several hurdles to widespread adoption of solar electricity systems.

Mr. Wanderscheid stated the City is at a major decision point and stated staff needs to know whether the Council wants to move forward, and if so, there are three areas where staff requires clarification: 1) Does the City want to limit the amount of equity shares that one citizen or business can purchase, 2) Does the City want to subsidize this project or should purchasers pay the entire costs, and 3) Should the City become a default purchaser of equity from a citizen or business that wants to sell its equity. In regards to Question #1, Mr. Wanderscheid explained staff is recommending the City initially limit the amount of equity shares. In regards to Question #2, Mr. Wanderscheid presented four scenarios and recommended the Council proceed with Scenario #1, which is to have the energy credit based on 10cents/kWh for 10 years, 15cents for 10 years, and an upfront solar rebate of $123,000. And in regards to Question #3, Mr. Wanderscheid recommended the City not assume the role of backup purchaser of equity shares, at least initially.

Mr. Wanderscheid explained that staff would like to have a portion of the new system constructed by late summer, and noted that the City has already received two bids, however neither met the minimum criteria. He suggested that the problem with the lack of bids in number and quality is the timeline they laid out and that it was bid as a construction project. Mr. Wanderscheid proposed that they get an exemption from competitive bidding and use a point system to award; and stated this could come back to Council in June.

Mr. Wanderscheid commented on a few of the hurdles associated with this project. He noted that the CREB bonds were suppose to take the place of the Federal Energy Tax Credit, however none of the banks will give the City a 0% interest rate and this is coming in at 1.2% to 1.6%. He stated that while the federal government envisioned that this would be at 0%, the banks are telling the City differently. Mr. Wanderscheid also clarified that if an individual can afford to place a 2kW system in their home on their own, it is a better investment for the individual to do that than to buy into the City's system.

Mayor Morrison questioned whether the Council wants to move ahead with this, and if so what direction to take. Council listed their preferences and several councilors requested further information and discussion before a decision is made. In addition, concern was voiced with how this project would affect the utility rates of Ashland's citizens.

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

Councilor Navickas voiced his support for staff's recommendation and stated that sometimes it takes an investment on the part of the community to get a project like this going. He stated this is a good project and in this case, the minor rate increases are worth it.

Comment was made questioning if staff needed a decision right away. Mr. Wanderscheid clarified the City will have to sell the bonds by December 31, 2007, but there is not rush to have this settled in the next few weeks.

Councilor Chapman suggested structuring this to get rid of the bonds prior to the December deadline and to go to bid in the fall. He suggested a small group meet with staff to discuss this further and bring it back to the entire Council.

A subcommittee of Councilors Chapman, Jackson, and Hardesty agreed to discuss this further with staff in order to bring back a proposal for Council discussion.

1. Ethics Ordinance.
Colin Swales/461 Allison Street/Stated that this ordinance is long overdue, especially in its relation to the land use arena. Mr. Swales noted a number of planning actions have come up where these ethics problems have been occurring and reoccurring. He stated he has some reservations about the ordinance, but feels that it covers the main points and encouraged the Council to move this ahead.

John Stromberg/252 Ridge Road/Commented on the provision that prohibits a commissioner from representing a client before any City commission or the City Council. Mr. Stromberg gave an example of a situation where a commissioner who has a project before the commission recuses themselve. He stated it would be a very awkward situation for the remaining commissioners to be critical of their fellow commissioners project and stated there is pressure to let things through or to be leanent. He stated another problem is that it becomes an asset to a professional to be a member of a City commission. Mr. Stromberg encouraged the Council to not allow this practice to occur.

Art Bullock/Voiced support that the ordinance would extend the ethics provisions to the Council and appointed commissioners and also voiced his support for the prohibition regarding commissioners representing a project in front of other commissions. Mr. Bullock stated this is particularly a problem for the Council, Planning, Tree and Historic Commissions because they act as quasi-judicial bodies. He commented on a lack of trust in the community with the planning process and recommended the Council include the proposed prohibition in the ordinance.

Councilor Jackson voiced support for the proposed ordinance, but shared her concerns with the phrase that prohibits someone serving on a commission from representing a project to another commission. She commented that this may be too restrictive and does not want to damper the participation of professionals in our community any further.

Councilor Jackson left the meeting at 10:15 p.m.

Councilor Navickas voiced his support for the ordinance and the proposed prohibition. He stated this language would not stop professionals from participating on a City commission and noted the commissioner could have someone present a project on their behalf. He added that this provision would clean up the messiness that they have witnessed with the planning process.

Councilor Hartzell also voiced her support for the prohibition and stated she does not believe this will damper an individials ability to volunteer.

Councilor Hardesty noted the changes to Section H and voiced her support for the language that requires an official to apply to the Mayor for a determination if they have a question about the applicability of a code provision so long as the Council is immediately informed. Councilor Hardesty also voiced her support for the section regarding the prohibition and stated they should keep unfair advantages and potential conflict of interest to a minimum.

Councilor Silbiger stated he agrees with the prohibition, but voiced concern with how this will affect the smaller consultant firms. He also commented on the language in Section D(1) and questioned the use of the phrase "city service." City Adminstrator Martha Bennett clarified "city service" is not a volunteer public official, it is an employee. Councilor Silbiger suggested modifying the language in this section to read, "...except with reference to unpaid positions filled by appointment by the Mayor or Council."

Councilor Chapman agreed with the concern on how this will affect the smaller consultants and noted that there are a lot of partnerships in town, and just because an individual does not represent a project before their own commission, having their partner do it could have the same effect.

In regards to Councilor Hardesty's suggestion, Councilor Hartzell recommended modifying Section H to read, "... should apply to the Mayor for determination, and City Council will be informed of the inquiry."

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

Meeting adjourned at 10:30 p.m.

Barbara Christensen, City Recorder
John W. Morrison, Mayor

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