MINUTES FOR THE REGULAR MEETING
October 19, 2010
CALL TO ORDER
Mayor Stromberg called the meeting to order at 7:00 p.m.
Councilor Voisin, Navickas, Lemhouse, Silbiger and Chapman were present. Councilor
Vacancies on the Planning Commission, Public Arts Commission, Housing Commission, Tree Commission, and upcoming vacancies on Budget Committee were announced. The deadline for the annual Budget Committee applications is November 5, 2010.
SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?
The minutes of the Study Session of October 4, 2010 and Regular Meeting of October 5, 2010 were approved as presented.
SPECIAL PRESENTATIONS & AWARDS
The Mayor's Proclamation of October 24, 2010 as United Nations Day was read aloud.
1. Does Council wish to confirm the Mayor's appointment of Thomas Beam to the Conservation Commission with a term to expire April 30, 2012?
2. Will Council accept a Connect Oregon III construction grant to cover the City required 5% match for the Airport Improvement Project-Runway (AIP) Rehabilitation and Precision Approach Path Indicator (PAPI) light installation for the amount of $92,900?
3. Will Council approve an Airport ground lease with Brim Aviation for the storage of aviation related equipment?
4. Does Council wish to enter into an Intergovernmental Agreement to participate in the
5. Does Council have any questions regarding the results of sale of Full Faith & Credit bonds per resolution 2010-11 to refinance the Department of Environmental Quality loan originally used to help pay the costs of the Wastewater Treatment Plant project?
Councilor Navickas/Chapman m/s to approve Consent Agenda items. Voice Vote: all AYES. Motion passed.
PUBLIC HEARINGS (None)
Dennis Cluff/270 Dead Indian Memorial Road/Spoke regarding the high monthly cost for City sewer service outside of city limits and asked for assistance.
Colin Swales/143 8th Street/Commented on the title of an upcoming workshop “Pedestrian Places,” October 27, 2010 at the Ashland Middle School Commons. He explained the title was a contradiction in terms because the workshop would actually address rewriting City Land Use code to allow higher density development at three specific intersections.
1. Does the City Council wish to affirm, reverse, modify or remand back to the Planning Commission the decision to approve a wireless communication facility installation on the Ashland Street Cinema building at 1644 Ashland Street?
Mayor introduced special Legal Counsel Pamela Beery to the Council. He went on to note the Public Hearing was closed and no further testimony would be allowed nor would additional materials be provided.
ABSTENTIONS, CONFLICTS, EX PARTE CONTACTS
Councilor Chapman declared no ex parte contacts or conflicts of interest. He responded to the bias challenge explaining he seldom used a cell phone and AT&T was not his carrier.
Councilor Silbiger had nothing further to declare from the last meeting.
Councilor Lemhouse disclosed he went to the pizza parlor behind the location. He explained AT&T was his personal carrier and one of his duties with the Medford Police Department was to review cell phone contracts for the Police Department and that contract recently changed from AT&T to Sprint.
Councilor Navickas disclosed he had several encounters with citizens who tried to discuss the issue. He was clear this was a judicial decision that he could not receive outside information on. It was difficult at times but he had not received any information that would bias his decision.
Councilor Voisin declared no contacts or change and did not use AT&T as her cell phone provider.
Mayor Stromberg had no ex parte contacts or conflicts of interest to report. He used AT&T as his cell phone carrier but did not think it would influence him deciding on this situation.
Counsel Pamela Beery clarified the bias challenge on cell phone carriers and had the Council and Mayor confirm they could make an impartial and unbiased decision based on the record and the presentations and not on any bias or personal pre-judgment. Consensus affirmed they could remain impartial and unbiased.
COUNCIL DELIBERATION CONT’D.
Mayor Stromberg explained under the State of
Ms. Beery clarified the Telecommunications Act provision governing wireless communications facility (WCFs) sites and explained congress pre-empted local authority to review any concerns dealing with health or environmental effects of the facility as long as it was licensed, FCC approved and operated within those minimum standards. Council did have zoning authority but could not regulate based on health concerns.
Deliberation was broken into four issues:
1. Did the Planning Commission properly interpret the “feasibility” standard in 18.72.180.C.2 – Preferred Design?
Associate Planner Derek Severson read the following slide on Preferred Designs aloud:
Councilor Chapman explained the Planning Commission were clearly frustrated with the words “encourage” and “preferred ” in the code and noted it as a weak justification in their Findings. The intention of the code was to strike a balance between regulating facility placement and good service for citizens and the economy. If Council agreed with the Planning Commission’s interpretation, that it was a weak suggestion to review collocation, Council would need to look at the record to determine if the evidence was convincing. He suggested strengthening the code to “must consider.” The purpose and intent of the 18.72.180 was to establish standards that regulate placement, appearance and impact while providing residents with the ability to access and adequately utilize these services. Submittals indicate the applicant “shall” provide existing wireless sites, a collocation feasibility study, a copy of the lease and any other relevant documents that comply with design standards. Under Standards, it read all WCFs “shall” be located, designed, constructed, and maintained in the following standards. A stronger interpretation of the definition of feasibility was appropriate.
Council Navickas thought the language was very clear, stating that collocation “shall be” the preferred option and created a dichotomist key as to whether the applicant moves with collocation or not. The weakness in the word “preferred” were the various tiers of options it generated. “Shall” was the more important term. The Planning Commission clearly erred in the interpretation of the ordinance and he was disappointed to hear it stated as an aspiration. The language stated it wanted collocation and there was a tiered system if collocation was not possible as well as demands showing feasibility was not possible somewhere else, that meant a rigorous and good faith effort to look at feasibility.
Councilor Voisin thought the Planning Commission misinterpreted 18.72.180.C.2.A as aspirational and not mandatory. The introduction made clear the ordinance was looking for visual and aesthetic impacts that can be mitigated. 18.72.180.B.6 indicated the collocation feasibility study should state reasons why collocation can or cannot occur. The seriousness of collocation was clearly being built throughout the ordinance. In 18.72.180.C.2 Preferred Design, other statements gave strong support that preferred design was the preferred option. The language referring to collocation of new facilities on existing facilities shall be the preferred option was a strong statement and not an aspiration.
Councilor Lemhouse noted if the code were meant to be mandatory, it would have stated it. The code should be read and applied to an argument, not made to fit an argument.
Councilor Silbiger explained he looked at the intent when interpreting code. It was written after the 1996 Telecommunications Act and intended to give local government the powers needed to regulate in specific areas. The code was looking to mitigate visual impact and use language that prevented absolutes. However, the ordinance used “shall” and stated criteria. He was fine with the language.
Councilor Chapman responded to Councilor Lemhouse and explained Council was a unique body responsible for writing the code and interpreting the intent. Councilor Lemhouse understood but was uncomfortable with the possibility of reading too much into the interpretation to make it fit an argument and preferred to look at it purely to determine what it meant.
General Council consensus was the Planning Commission did not interpret the feasibility standard in 18.72.180.C.2 Preferred Design properly.
2. If Yes, is there substantial evidence in the record to support the decision?
3. If no, what is the proper interpretation?
Council discussed using the Land Use Board of Appeals (LUBA) definition of “feasible” as capable of being done, executed, having reasonable alternatives or affected possible realization. In Simmons vs. Marion County LUBA stated, “Interpreting a County ordinance provision requiring that no feasible alternative site in the area exists, we have stated the county cannot deem alternative sites infeasible simply because it would be difficult for the applicant to make use of those sites. Additionally, we have frequently stated that a site or project is feasible if there are reasonable solutions available for identified problems.”
Ms. Beery explained once Council had its definition of “feasible” they would look at the evidence case by case in light of what they now interpreted the code to mean. The next step was weighing the evidence against the standard. Councilor Silbiger thought the standard to make that decision was 184.108.40.206 in the Application Submittal Requirements that laid out the standard for feasibility and talked about the collocation feasibility study.
Council agreed unanimously to use LUBA’s definition of “feasible.”
4. Is there substantial evidence in the record that the application complies with feasibility standard?
Councilor Silbiger read from the Findings the June 15, 2010 Submittal B. Radio Signal Limitations that explained the Holiday Inn site did not meet a required coverage goal for the SOU campus, did not have a direct line to AT&T’s existing site and would not offload calls as required. It also noted the additional 13 feet at the proposed cinema site would provide higher coverage. This was the information that the Planning Commission used to determine that collocation was not feasible.
Councilor Voisin read from a May 19, 2010 letter regarding collocation issues from AT&T consultants that read collocation on the Holiday Inn Express could work purely from a radio frequency (RF) perspective. However, the Holiday Inn required AT&T to place their equipment in an inaccessible closet located above the drive through area where guests are dropped off. The only way to access the equipment was using ladders. Because of the proposed dangerous location for the equipment AT&T rejected the Holiday Inn as a potential location for this site. Councilor Voisin did not see in the feasibility study why it was dangerous or other alternatives within the site.
Councilor Chapman thought the feasibility study should have explained the gap in service or quality that the provider wanted to remedy, why existing sites would not work well enough and why the new site would. The evidence was weak, contradictory and fluid. The record did not address the specific problems the applicant was trying to solve.
Councilor Navickas agreed there was not enough effort to show that collocation was not possible and did not see enough evidence to prove otherwise.
Councilor Lemhouse looked at it from the judicial perspective, was there enough evidence for a reasonable person to say there was enough. Applying LUBA’s definition of feasibility to the evidence provided showed the evidence was not strong enough.
General Council consensus was the evidence did not meet the burden of proof under the definition of feasibility.
1. Is there substantial evidence in the record to support the Commission’s decision that the application complies with 18.104.050.C (“no greater adverse material effect”)?
Council consensus there was substantial evidence in the record to support the Planning Commission’s decision that the application complied with 18.104.050.C.
1. Is there substantial evidence in the record that the application complies with the requirements in 18.72.180.B.6 for the Applicant to submit a collocation study and a copy of the lease?
Ms. Beery clarified the appeal challenge, “Was the application insufficient because it did not contain a collocation study or a copy of the lease?” The Planning Commission found the submittal requirement not part of the approval criterion and she concurred with that finding. It was typical for an applicant to supply pieces of information over time. Since it was not an approval criterion, the application would not be denied because an item in the checklist for the application was missed. If Council wanted that to be a standard, it needed to be stated in the code.
Councilor Silbiger noted that since an application had to have those items to be deemed complete the fact it was moved forward through the Planning Commission suggested the defect was not the applicant’s fault because the Planning staff deemed it complete. Councilor Chapman could not find enough evidence to overturn the Planning Commissions decision but thought there were some complications with the decision.
Council consensus agreed with the Planning Commission that the application complied with the requirements in 18.72.180.B.6 regarding submitting a collocation study and a copy of the lease.
1. Is there substantial evidence in the record that the application complies with the variance criteria in 18.72.090?
Council consensus agreed there was substantial evidence in the record that the application complied with the variance criteria.
Ms. Beery explained the Council could make a motion to grant the appeal for Issue 1 and overturn the Planning Commissions decision for two reasons. One, the Planning Commission erred in interpreting the feasibility standard as an aspirational standard and Council wanted a standard more in line with what LUBA had articulated in other cases. The second was based on that feasibility interpretation there was not substantial evidence in the record provided by the applicant in support of their application to meet that standard.
Councilor Navickas/Chapman m/s to grant the appeal and reverse the decision of the Planning Commission and direct staff to draft Findings stating that the Planning Commission erred in its interpretation of the feasibility Standard in 18.72.180 C.2, and that there is not substantial evidence in the record to support the decision and the applicant fails to apply with the feasibility standard, and there is substantial evidence in the record to uphold the Planning Commission’s decision on the remaining three grounds for the appeal.
DISCUSSION: Councilor Navickas thought the law was very clear in its wording and was interpretable. It stated collocation shall be the preferred alternative and if the applicant was unable to collocate, they needed to show that other options were not feasible. He was confident in Council’s interpretation. Councilor Silbiger agreed with the preferred design standard but disagreed with the study standard in the motion and read the following from the code: “Collocation feasibility study that adequately indicates collocation efforts were made and states the reasons collocation can or cannot occur.” The applicant provided a collocation feasibility study that may have not indicated adequately but adequately indicated collocation efforts were made. It may not be a good standard, or what people wanted, but it was the standard the City set for itself.
Councilor Chapman thought there was enough ambiguity and that his preference was to remand it to the Planning Commission but the City was out of time and that was not possible. Granting the appeal seemed like the best choice. Alternately, it was important to have good cell service for the citizens and the economy and the applicant should reapply with a more complete application. Councilor Lemhouse explained when issues were addressed from a quasi-judicial point of view; it was based on fact and the code, not from an emotional standpoint. In a quasi-judicial role, he would interpret the code and apply the evidence to that interpretation. He understood but disagreed with Councilor Silbiger’s point adding it did not allow for interpretation of feasibility in a stricter way. He thought AT&T interpreted the code in an honest way and provided a study they thought went in line with the code. Council made a decision on what feasibility meant, applied it to the evidence and it did not pan out for AT&T.
Councilor Voisin noted code that stated the collocation study must demonstrate why collocation could not occur and Council determined that was a high standard. She found AT&T’s feasibility study inadequate and was in favor of the motion. Mayor Stromberg also disagreed with Councilor Silbiger. Council would lose the ability to have a stricter interpretation of feasibility. Roll Call Vote: Councilor Chapman, Voisin, Navickas and Lemhouse, YES; Councilor Silbiger, NO. Motion passed 4-1.
NEW AND MISCELLANEOUS BUSINESS
1. Will Council authorize the solicitation of a proposal for soil and groundwater monitoring on City owned property at 1097 'B' Street?
Engineering Services Manager Jim Olson explained the City owned property at
Mr. Olson clarified these actions required the services of an Oregon registered geologist, a licensed well driller and soil matrix supervisor as well as several DEQ licenses and permits not present on City staff.
Councilor Silbiger declared a potential conflict of interest. His family was interested in property near the location but did not think it would affect his judgment on the matter.
Staff explained consultants would bid on four specific tasks. The first was additional testing and classification of the nature and extent of contamination. The second was dependent on the extent of contamination discovered during the first step and could include further testing. The third task was the risk base closure of the project. The fourth, if required was decommissioning the monitoring wells once the project was finished. The wells would be drilled on the contaminated property and strategically placed to determine if the hydrocarbons were leaking onto to adjacent properties. The consultants would be paid for what was delivered and funds were already in the budget for the project.
Councilor Voisin/Chapman m/s to authorize the solicitation of proposals for a public works project.
Roll Call Vote: Council Voisin, Navickas, Lemhouse, Silbiger and Chapman, YES. Motion passed.
ORDINANCES, RESOLUTIONS AND CONTRACTS
1. Will Council approve Second
Councilor Voisin/Lemhouse m/s to move this item to the November 2, 2010 meeting. Councilor Voisin withdrew the motion with Councilor Lemhouse’s consent.
Councilor Voisin/Lemhouse m/s to move this item to the November 2, 2010 meeting.
Voice Vote: Councilor Voisin, Navickas, Lemhouse and Chapman, YES; Councilor Silbiger, NO. Motion passed 4-1.
2. Will Council approve First
Public Works Director Mike Faught explained the ordinance made minor changes and clarifications in order to streamline the process. Instead of authorizing the issuance of solicitation documents, the Local Contract Review Board would approve the award of all contracts requiring formal competitive solicitation or bids. The dollar value for small procurements was inserted for easy reference by staff with a $5,000 limit. The Finance Director could endorse the amount of the contract if the contract amount exceeded the amount approved on the requisition documents. Findings regarding availability of City personnel and resources would be required for Intermediate Procurements for personal services. The ordinance would clarify that all records shall be retained in accordance with
Mr. Faught explained the section referring to local preference: “The City shall endeavor to utilize local suppliers of materials and services whenever practical and feasible while seeking to obtain the lowest and best responsible bid quotation or proposal,” did not create a dramatic change from usual practices for the Public Works Department. Most of the work was done with local contractors. Engineering Services Manager Jim Olson added it depended on the size and complexity of the project as well. Standard Public Works projects require staff to take the lowest responsible bid but also require staff to advertise statewide for bids. Local was defined as in the
Mr. Faught confirmed that Council would approve the award but not the solicitation, coming to Council for approval to send out a Request for Proposal (RFP) added time to the already lengthy process and took away flexibility. The nature of the RFP did not change the outcome of the project. Requests for Council approval on seeking RFP’s did not occur prior the May 2010. The language was inadvertently changed and not intentional. RFPs were for projects already approved in the Budget and in the Capital Improvement Plan (CIP).
Council had concern that this process would remove transparency in terms of letting the public know what was happening. Also, that Council would not be apprised of the criteria staff was using as they set up the RFP.
Councilor Chapman addressed language in 2.50.120 Personal Service Contracts A. that read: “A personal service contract that does not exceed $35,000 may be awarded by direct appointment. Personal Services Contracts that are for contract amounts greater than $35,000 but less than $75,000 shall follow the process for Intermediate Procurements as outline above. In addition, for Intermediate Procurements, the Public Contracting Officer shall make findings the City personnel are not available to perform the services, and that the City does not have the personnel or resources to perform the services required under the proposed contract,” and thought Council should receive findings on contracts below $35,000.
Councilor Lemhouse/Silbiger m/s to approve first reading of ordinance and set the matter for second reading. DISCUSSION: Councilor Lemhouse supported the changes to the ordinance and the request for findings on contracts under $35,000. He did not agree with Council authorizing solicitations. It slowed the process and bordered micro managing. Transparency occurred when Council reviewed the RFP for approval. Councilor Voisin thought having Council in at the beginning could avoid potential errors found during the award. It was prudent for the Council and public to know what was going out for bid. She understood many awards were perfunctory and could be included in the Consent Agenda.
Councilor Chapman/Lemhouse m/s to amend motion to include directing the attorney to bring back language clarifying the intent of the Council to require findings that City personnel are not available to perform the services for contracts between $5,000 - $75,000. Voice Vote: all AYES. Motion was amended.
Continued Discussion on amended motion:
Councilor Navickas thought it was a more efficient use of staff time to have the correct RFP. There would be circumstances where Council could adjust the RFP at the beginning to ensure accuracy and that the bid was in the Council’s best interest. It was also important for transparency and knowing what was moving forward. Mayor Stromberg noted staff has taken the initiative to bring Council projects that might be sensitive.
Councilor Navickas/Voisin m/s to amend the motion and remove item C. under Section 2.50.080 and maintain the current language under C. and D. Roll Call Vote: Councilor Voisin and Navickas, YES; Councilor Lemhouse, Silbiger and Chapman, NO. Motion failed 2-3.
Roll Call Vote on amended motion: Councilor Lemhouse, Silbiger and Chapman, YES; Councilor Voisin and Navickas, NO. Motion passed 3-2.
3. Will Council approve First
Public Works Director Mike Faught explained there were times when a developer is required to install a larger capacity or public facilities to meet the demands of future development. Currently there were two methods for charging benefited owners their share of system improvements, one was System Development Charges (SDC) and the other was forming a Local Improvement District (LID). Advanced Financing was a method to pay for the project in advance and collect funds when the benefited property owner hooked into the public improvement.
Staff had reviewed the proposed language that addressed the 7%. New language compartmentalized the interest into four categories. One category addressed interest based on City issued municipal bonds. Category 2 applied when a private developer used its own funds to construct improvements. Category 3 would apply if the City financed the project from its own cash reserves. The fourth category allowed Council to modify its impact on a case-by-case basis if inequities were created through the implementation of categories 1-3.
Advanced Financing pertained to projects not on the SDC eligible project list and were a way to capture funds for the benefited share not previously captured. Developers would collect from benefited owners for 10 years after project completion with the possibility to extend to 20 years. The City could also assume the financial responsibility for building out and subsequently collect from benefited owners in the same manner. Advanced Financing was a tool that gave the City an opportunity to build infrastructure and recoup funds as people start building in the area.
City Recorder Barbara Christensen noted 13.30.050 C. Collection stated the City Recorder would place a lien on the property then file it with City lien dockets and clarified liens were actually filed with
Councilor Chapman/Lemhouse m/s to approve first reading of ordinance and set second reading for November 2, 2010. DISCUSSION: Councilor Navickas did not think it was appropriate to pass first reading on an ordinance when there were unresolved issues. The public needed the opportunity to review changes prior to second reading. Roll Call Vote: Councilor Navickas, Lemhouse, Silbiger, Chapman and Voisin, YES. Motion passed.
OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS
Meeting was adjourned at 9:35 p.m.
Barbara Christensen, City Recorder
John Stromberg, Mayor