MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
November 1, 2005
Civic Center Council Chambers
1175 E. Main Street
CALL TO ORDER
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.
APPROVAL OF MINUTES
The minutes of the Study Session of October 13, 2005, Executive Session of October 18, 2005 and Regular Council Meeting of October 18, 2005 were approved as presented.
SPECIAL PRESENTATIONS & AWARDS
Police Chief Mike Bianca reported on the activities of October 31, 2005. He stated that several tickets were written for various offenses and only four individuals were arrested. Overall, it was a very good evening. It was noted that the restrooms were locked and people resorted to using Lithia Park. Mr. Bianca stated that the department would take this into consideration when preparing for next year.
1. Minutes of Boards, Commissions, and Committees
2. Liquor License Application for Ashland Mobil
3. City Administrator Contract
The City Administrator Contract was pulled from the Agenda.
Councilor Jackson/Amarotico m/s to approve Consent Agenda items #1 and #2. Voice Vote: all AYES. Motion passed.
PUBLIC HEARINGS (None)
Colin Swales/461 Allison Street/Stated that two planning actions will be before the Planning Commission for reconsideration next week and requested discussion regarding the procedure for reconsidering.
Councilor Hartzell/Silbiger m/s to place item on the Agenda for discussion. Voice Vote: all AYES. Motion passed.
Bruce Albert/1411 Ponderosa Drive/Spoke regarding panhandling in the downtown area and shared his experience with individuals who requested money from him. Mr. Albert requested Council action on this problem before it escalates into something more serious.
It was suggested that Mr. Albert speak to Police Chief Bianca to learn more about what the Police Department is doing to enforce restriction of panhandling.
Police Chief Bianca was called forward to share the Police Department's assessment on this issue. Mr. Bianca reported that the department had received several complaints about this in the past few months and explained that the City does not have an ordinance that prohibits panhandling. He stated that there are issues as to whether this type of ordinance would be a violation of the First Amendment, however noted that there is a City resolution that addresses this issue. Mr. Bianca noted that some serious situations have arisen in the past, and added that the police were ready to respond to these types of issues.
UNFINISHED BUSINESS (None)
NEW AND MISCELLANEOUS BUSINESS
1. Approval of Amendment No. 2 to Congestion Mitigation and Air Quality (CMAQ) Agreement No. 21139; Ashland Street Paving Project.
City Engineer Jim Olson presented the staff report and explained that the modification of the current CMAQ agreement would delete the construction of Walnut Street from the project scope. It was found that improving Walnut Street to Federal Highway Administration Standards would be extremely difficult, highly disruptive and would exceed one million dollars; therefore Staff is recommending that the agreement be limited to the improvement of 'C' and Eureka Streets.
Mr. Olson noted that the City's obligation of funds would be reached through System Development Charges and stated that grant options would be considered. He also commented that the City has a project underway to replace the sanitary sewer on Walnut, after which Staff will concentrate on improving Walnut Street.
City Attorney Mike Franell advised Councilor Hartzell that she may have a potential conflict, however she may vote on this matter if she feels she could remain impartial. Councilor Hartzell requested permission to abstain from voting.
Councilor Chapman/Amarotico m/s to allow Councilor Hartzell to abstain from voting. Voice Vote: all AYES.
Councilor Chapman/Jackson m/s to approve Amendment No. 2 to the CMAQ Agreement No. 21139. Voice Vote: all AYES. Councilor Hartzell abstained. Motion passed.
2. Quarterly Financial Report: July - September 2005.
Finance Director Lee Tuneberg presented a brief staff report on the financial position of the City relating to cash and investments and budgetary revenues and expenditures. A Financial Narrative, Summary of Cash and Investments as of September 30, Combined Statement of Financial Position City Wide, Schedule of Revenues by Fund and Schedule of Budgetary Compliance were provided to the Council for their review.
Mr. Tuneberg explained that a project for radio repeater towers was budgeted for last year but was not completed; he added that this is being presented to the Council as a resolution to transfer appropriations within the 2005-06 budget.
A request for additional information on revenues was made by Mayor Morrison.
Councilor Jackson/Hartzell m/s to approve the Quarterly Financial Report. Voice Vote: all AYES. Motion passed.
3. Request for Sewer Service to Property Located Outside the City Limits at 3293 Highway 66.
City Engineer Jim Olson presented the staff report on the request for sewer service. He stated that although the property is outside the City limits, it is within the City's urban growth boundary. Mr. Olson explained that this property contains a residence and septic system that was constructed in 1925, and noted that it meets all but one of the requirements for connection, which is the requirement that there be visible evidence that the system is failing. Mr. Olson stated that there are a number of factors that make this situation problematic, including: 1) the building is approximately 20 feet from Neil Creek, 2) the north quarter of the lot slopes steeply down to the creek, and 3) it is possible that if there was a leakage in the septic system, it may not be readily apparent.
Mr. Olson explained that this lot is constrained by a house, garage, studio, water well, the existing septic system and a drain field. In addition, there are water wells on adjacent properties that further constrain the use or construction of a septic system. Mr. Olson noted how this property could connect to the City's sewer system and stated that all of the construction costs would be born by the property owner. It was noted that the property owner had received approval from ODOT to use Highway 66 right of way for placement of the proposed sewer lateral. Staff recommends that Council consider approval of this application due to the possibility of contamination of Neil Creek when the system fails.
Jack Johnston/3293 Highway 66/Noted the location of his property and explained that it would be better to take care of the sewer system now before it becomes an emergency situation due to the proximity to the creek.
Council questioned how the other houses in the vicinity were being served and how many have similar dynamics that would constrain their systems. Mr. Olson reported that the other houses are on septic systems, but all of them sit further back from the creek than this property.
Council commented that the criteria for the existing septic system to be failing has not been met, and concern was expressed about setting precedence if this request is granted without meeting this requirement.
Mr. Olson spoke regarding the property's constraints and stated that even with a new building site, it would be difficult to build a new septic system on this property given the location of the wells on the adjacent properties.
Concern was expressed about extending the City's services beyond the boundaries prematurely. City Attorney Mike Franell clarified that granting this request could open the door to further pre-emptive requests.
The actual language of the ordinance was noted, which states "The applicant shall secure in writing...that the existing sewage system has failed..." and emphasis was placed on the language "has failed". Comment was made noting concerns for the environment and questioning if this request could be approved without setting precedence.
Mr. Franell explained that the language of the ordinance does not allow for a lot of discretion. He noted that the statement the applicant received from Jackson County indicates that at some point in time the system will have to be replaced, but they have not reached that point in time yet. Mr. Franell suggested that if the Council is wanting to look at sewer connections outside the City limits for the purpose of avoiding contamination, they should consider an ordinance amendment that would permit this.
Councilor Silbiger/Jackson m/s to deny the Request for Sewer Service at 3293 Highway 66 based on not meeting the requirements of the ordinance. Voice Vote: all AYES. Motion passed.
Mr. Johnston requested that the Council consider an amendment to the ordinance prior to a catastrophe happening and questioned the potential liability to the City in the case of a contamination.
ORDINANCES, RESOLUTIONS AND CONTRACTS
1. First reading by title only of an Ordinance Amending the Ashland Municipal Code Relating to Rules of Procedure for Public Contracting and Personal Service Contracts.
Delayed for future Council meeting.
2. Resolution Adopting a Supplemental Budget Establishing Appropriations within the 2005-2006 Budget.
Finance Director Lee Tuneberg presented a supplemental budget to add $190,380 in appropriations to recognize grant revenue to be received on a reimbursement basis to build three radio repeater stations.
Councilor Amarotico/Hardesty m/s to approve Resolution #2005-41. Roll Call Vote: Councilor Hartzell, Hardesty, Chapman, Silbiger and Amarotico, YES. Councilor Jackson was out of the room. Motion passed.
3. Resolution Transferring Appropriations within the 2005-2006 Budget.
Finance Director Lee Tuneberg stated that this is regarding a budget transfer of $60,726 to provide the City's match on the project to install the three radio repeater stations.
Councilor Amarotico/Hartzell m/s to approve Resolution #2005-42. Roll Call Vote: Councilor Amarotico, Silbiger, Hartzell, Hardesty and Chapman, YES. Councilor Jackson was out of the room. Motion passed.
Mr. Tuneberg commented on the Mayor's earlier request for information during the Quarterly Report presentation. He stated that he checked the budget and the difference noted in the report was due to a considerable amount of stock that was sold, which totaled over $120,000.
4. Resolution Requesting that the Oregon Shakespeare Festival Not Pursue Terminating its membership Non-Profit Status, and Remain a Membership, Non-Profit Organization.
Philip Lang/758 B Street/Presented his request for the Council to consider a resolution that requests the Oregon Shakespeare Festival (OSF) retain its membership, non-profit status. Mr. Lang commented on the membership's right to have a say in the governance of OSF through nominating and electing its Board of Directors and bringing forward important issues affecting the organization. He stated that OSF management and board wants to eliminate this membership participation. Mr. Lang stated that OSF was built as an inclusive membership organization and must be maintained this way. He stated that the people must not be disenfranchised and encouraged the Council to pass the proposed resolution.
The possibility of drafting a letter versus a resolution was questioned. Mr. Lang stated that he would prefer a resolution, but what was important is that they take a stand.
Jed Meese/88 Granite Street/Spoke in favor of the proposed change by OSF and shared his experience as a past board member. Mr. Meese stated that the change in voting membership was good for the City and urged the Council not to support the proposed resolution.
Nancy Tait/1861 Ashland Mine Road/Spoke as President of the Board for OSF. Ms. Tait explained that Mr. Lang had requested a list of all of the festival members names and addresses (over 19,000) and stated that this was a concern to the board because a number of its members had requested that their information not be shared. She stated that because they are a voting membership, Oregon Law required them to provide the list; however if they switch to a non-voting membership, they will no longer be required to share this information. Ms. Tait noted three key points to support this change: 1) there are over 19,000 members, 87% of which do not reside in the Rogue Valley, 2) 11% of OSF members have requested that their names and addresses not be shared, and 3) less than 3% of the entire membership currently utilize their voting privileges. She noted that the board is not making this decision, but are asking their members to decide.
Ms. Tait clarified that only a member can ask for and receive the entire list. She added that this is a concern because of the value of the list, and stated that once it is out, it would be easy for others to gain access to member information.
Paul Nicholson/Stated that under Oregon Law, if a member wishes to communicate with the entire membership, the organization can provide the ability for that member to do so by mailing the information for the member, which they have done in the past. Not withstanding, the member still has the right to ask for the list.
Mr. Nicholson explained that OSF has never provided the entire membership list until it was requested by Mr. Lang. Previously, they have allowed the ability for certain people, primarily connected with tourism or the arts, to mail to selected zip codes, excluding those that asked for their information to not be disclosed and excluding premier members. Mr. Nicholson explained the process of utilizing the mail house and stated that they offered to mail Mr. Lang's materials to the membership for him, but he declined. He stated that up until now, the membership list was confidential and the information from other sources was distributed to the membership though the mail house. Mr. Nicholson stated that this is a matter of a member being able to contact other members in an unwanted way and stated that this was a real fear indicated by some of the members.
Jeff Monosoff/1861 Ashland Mine Road/Noted that he is a member of the Shakespeare Festival and questioned a portion of the proposed resolution that states "the opportunity for member participation is a valuable democratic tool for member and community interaction with OSF". Mr. Monosoff stated that since not very many people vote, and most of all the people who do vote go along with the board, this change will not have an impact. He stated that the board will continue to make decisions as it always has and does not feel the Council should be considering this resolution. He noted that most of the membership non-profits in the valley are non-voting, and the City continues to support them. He questioned why they would act differently for this one organization.
Jerry Taylor/375 Alnutt Street/Stated that he is a member of the OSF Board. Mr Taylor explained that a non-voting form of membership is the norm for major professional theaters in America and noted several non-voting organizations that receive support from the City. He commented on a letter he received from OSF which stated that although he requested that his private information not be shared, according to State Law they would have to provide his information if asked. Mr. Taylor stated that 2,100 members have specifically requested that OSF not share their names and addresses and up until this week, that has never been done. By changing to a non-voting membership organization, OSF can guarantee that requests for privacy are honored. Mr. Taylor stated that there are sound business reasons why it is appropriate to ask the members if they want to continue a voting form of government and noted the work of the Board of Directors and the great care they take in their responsibilities. Mr. Taylor stated that OSF should not be singled out and noted that once this list is provided, they have no control over where this information ends up.
Councilor Jackson left the meeting at 8:53 p.m.
Ms. Tait clarified that when OSF approached Mr. Lang with their concerns about member privacy and informed him that they would be sending ballots to the members and offered to include Mr. Lang's opinion in that mailing, he declined.
Paul Copeland/462 Jennifer Street/Requested clarification of the hospital's non-profit status and their accountability to the City. Mayor Morrison clarified that the process for selecting the Hospital Board is a collaborative one that reflects both the input from the board and the input from the City Council. Mr. Copeland stated that this was an example of a non-profit that is very important to the City where the City has some influence through the appointment of the board. He stated that he is one of the members who requested his information not be shared, and stated that he did so because he did not want junk mail, not because he did not want to hear from other members about issues pertaining to OSF. Mr. Copeland expressed his support for the Council to make a statement that they care about OSF and want to continue to be involved in the organization.
Comment was made voicing opposition to the change and suggestion was made for a letter to be sent to the members which states the City's opposition. Statement was made questioning why the Council would get involved in OSF's business and it was questioned what harm this resolution could have with their relationship with OSF. Comment was made clarifying that the resolution is asking the festival to drop the whole issue, where as mailing a letter to the membership would not stop them from voting, but would provide the City's input.
Councilor Hartzell/Hardesty m/s to adopt the Resolution and request that Staff work with the Oregon Shakespeare Festival to arrange for a letter citing that resolution to be sent to the membership prior to the vote. DISCUSSION: Comment was made voicing support for expressing to the members the City's position on this issue.
Councilor Hartzell/Chapman m/s to amend the original motion to include the following language in the Resolution: "Section 1: The Ashland City Council requests the Oregon Shakespeare Festival Board not proceed with eliminating the Festival's status as a membership not profit, and if that vote goes forward, we encourage the membership to vote to retain their voting rights.". Voice vote: all AYES.
DISCUSSION CONT: It was clarified that Staff would craft the letter citing the resolution, to be sent to the membership. The issues of cost and timing were noted. Suggestion was made to amend the motion to state that Staff will work with the board and send the letter out if it is likely that it will reach the members before the vote. City Administrator Gino Grimaldi noted that the City does not have access to the membership list and questioned what Council would like Staff to do if OSF does not agree to work with Staff. It was determined that it would be difficult for the City to reach the membership and send out the letter if OSF does not cooperate.
Councilor Hartzell requested that the motion be rescinded and Councilor Chapman agreed.
Councilor Hartzell/Chapman m/s to approve the Resoluton with the language modification in Section 1 to read as stated in the previous amendment to the motion. Voice Vote: Councilor Hardesty, Chapman, Silbiger, and Hartzell, YES. Councilor Amarotico, NO. Motion passed 4-1.
5. Approval of an Engineering Services Contract for Development of the Railroad Crossing Improvement Project No. 2005-15.
City Engineer Jim Olson explained that an engineering contract has been developed, a scope of services defined, and a fee schedule negotiated with OBEC Consulting Engineers for
the development of the Railroad Crossing Improvement Project. The crossings located at East Main Street, Hersey & Laurel Streets, Glenn Street, Oak Street and Walker Avenue have been selected for the improvements. The contract with OBEC would span 3-5 years, depending on the availability of funds and the ability for the City to acquire grant assistance. OBEC has proposed a cost of $154,316 to provide the necessary services to design and develop these projects.
Mr. Olson stated that Ashland has nine crossing that the City is charged with maintaining and explained how the crossings were ranked. He clarified that this project would address the five crossings that are most in need of improvement. Mr. Olson noted that the East Main Street crossing would be improved first, followed by the Laurel/Hersey and Glenn Street crossings and finally the Oak Street and Walker Avenue crossings. He stated that there is money in the budget to support the contract in its entirety as well as the East Main Street project. He noted that the budget contains roughly $825,000 at this point and that the total project (based on preliminary estimates) would cost approximately 3.7 million. Mr. Olson stated there is grant funding available and that Staff will continue to look at these funding opportunities.
Mr. Olson clarified for Council that there will be an opportunity to consider a change in the intersection of A Street between Oak Street and First Street. He also explained that CORP's only financial obligation is the maintenance of items and stated that the City has no input into the cost of the railroad's work.
Colin Swales/461 Allison Street/Spoke as a citizen and a member of the Traffic Safety Commission. Mr. Swales noted that the Hersey/Laurel and Oak Street crossings are both located in National Historic Districts and stated that it would be nice to have something different and creative at these crossings. He commented on the wigwag and suggested that it be retained or incorporated into another area of the City due to its historical significance.
Councilor Silbiger/Hardesty m/s to approve Engineering Services Contract. Voice Vote: Councilor Hardesty, Hartzell, Silbiger and Amarotico, YES. Motion passed.
Mr. Olson commented on the wigwags and clarified that these are the property of the railroad. He stated that Staff would try to retain them, but they will likely need to be moved to another location. In regards to doing something different in the Historic Districts, Mr. Olson noted the areas that the approved concrete panels need to be used. He added that they could look at other materials for the areas outside of the concrete panels or could look at different types of finished surfaces.
6. Approval of Public Contract Greater than $75,000 - QWEST Internet Bandwidth
Delayed for future Council meeting.
OTHER BUSINESS FROM COUNCIL MEMBERS
1. Discussion regarding procedure for Planning Action re-consideration.
Colin Swales/461 Allison Street/Noted that there are two reconsiderations coming before the Planning Commission and commented on the differences between the Ashland Municipal Code and the Planning Commission Rules in regards to reconsideration. Mr. Swales stated that the Planning Commission Rules are fairly loose, can be easily changed, and are not made readily available to citizens or applicants. He explained that the final decision of the Planning Commission comes 15 days after the findings are adopted, therefore there is no final decision that can be reconsidered during the time between the vote and the 15 days after findings are adopted. He also claimed that the way City Staff is interpreting the Planning Commission Rules creates opportunity for unfairness. He noted that the Planning Commission Rules do not require a majority vote of the Commission to reconsider a vote; rather the Commission Chair can call a decision forward for reconsideration. Mr. Swales also commented on the lack on noticing of these reconsiderations by the Planning Commission.
City Attorney Mike Franell clarified that the Planning Commission Rules come from Roberts Rules of Order and provided an explanation of the two methods that can be used for reconsideration. In one method, the Commission Chair can call a decision forward for reconsideration if either party convinces him/her that essential facts were not brought to the attention of the Commission through no fault of the party. The other method provided by Roberts Rules of Order states if one Commission member who voted in favor of the decision moves to reconsider, and that motion is seconded, then a majority of the Planning Commission can vote to reconsider the decision if all those who voted in favor of the action are present. If any member who voted in favor of the action is absent, then it takes 2/3 of the members present to vote to reconsider the decision.
Councilor Hartzell/Hardesty m/s to extend meeting until 10:30 p.m. Voice Vote: all AYES. Motion passed.
Mr. Franell shared his belief that only one of the actions coming before the Planning Commission has sufficient reason for reconsideration and this is due to erroneous advice that was given by the City's Legal Department on an interpretation issue. In regards to the other decision, Mr. Franell stated that the Commission was fully informed and a reconsideration was not warranted.
Mr. Swales questioned the appropriateness that one of the actions is going before the Historic Commission prior to the Planning Commission's reconsideration. He expressed his concern that their input could prejudice the Planning Commission's decision and requested that discussion of this project be postponed at the Historic Commission.
Mr. Franell explained that due to the erroneous advice given by Staff, if the Planning Commission does not reconsider, the Legal Department would encourage Council to call it up for appeal. He added that there was no legal reason why the Historic Commission should not look at it.
Mr. Franell briefly commented on the noticing requirements and stated that in this instance, the notice provided to the citizens was adequate.
2. Mark Anthony Historic Property, LLC M37 Claim.
City Attorney Mike Franell provided a draft denial on the Measure 37 claim from the Mark Anthony property. He explained that a denial is being issued both on the merits on the claim and the unconstitutionality of the Measure 37 ballot initiative. If any councilors are interested in calling this up for public hearing, they have 10 days to inform the Legal Staff. If this is not called up for a public hearing, the denial decision will become final on November 15th.
Mr. Franell noted that due to a conflict of interest, the City Administrator had delegated the decision of this claim to the Legal Department.
Meeting was adjourned at 10:25 p.m.
Barbara Christensen, City Recorder
John W. Morrison, Mayor