It was clarified that the "old bricks" will be replaced with new ones, and they will be laid on a solid surface to prevent the bricks from breaking and becoming uneven. Mr. Nicholson also clarified they are following all of the guidelines and regulations for the installation of bricks and pavement in the public right-of-way.

Comment was made encouraging OSF to consider using bricks that have a more abrasive surface as opposed to the standard wire cut bricks.

Councilor Hartzell/Navickas m/s to approve Consent Agenda Items #1-#7. Voice Vote: all AYES. Motion passed 6-0.

Public Works Director Paula Brown clarified staff has not yet written the RFP for the transit-planning consultant and noted Council could decide to place a dollar limit on that contract.

Councilor Hartzell questioned the age limitation for high school students needing bus fare assistance and noted she is also in support of middle school students using the Reduced Fare passes as well. Ms. Brown indicated staff would make the Reduced Fare passes available to these students.

Art Bullock/Expressed concern with the RVTD budget being within Public Works Department and stated this proposal shifts bus money to sidewalk money and Public Works projects. Mr. Bullock stated the City is under funding the bus line as it is, and encouraged the Council to allocate these funds only to the bus and not use it for sidewalks or studies.

Councilor Chapman/Jackson m/s to approve Consent Agenda Item #8 with the additional stipulation that the recommendation for Reduced Fare passes be rescinded. DISCUSSION: Councilor Hartzell provided an explanation of why she put forward the recommendation for Reduced Fare assistance. Ms. Brown briefly noted the staff time it would take to administer this program. Roll Call Vote: Councilor Jackson and Chapman, YES. Councilor Navickas, Hartzell, Silbiger, and Hardesty, NO. Motion fails 4-2.

Councilor Hartzell/Hardesty m/s to approve Consent Agenda Item #8. Roll Call Vote: Councilor Jackson, Navickas, Hartzell, Silbiger, Hardesty and Chapman, YES. Motion passed 6-0.

Public Hearing Open: 7:49 p.m.

Art Bullock/Voiced concern with the following three areas concerning this project: 1) the scheduling issue, 2) the shifting on the bonding to a warranty, and 3) the point system.

Public Hearing Closed: 7:53 p.m.

Mr. Wanderscheid commented on the difference between a warranty and a bond and noted one of the bidders had indicated it was not possible to find a company who would issue a 10-year bond. He clarified the City would handle this by including a monetary penalty and if the system drops below what was proposed in the warranty then the hired company would have to either repair the system, replace the system, or pay the penalty. Mr. Wanderscheid clarified a construction bond would still be required.

Councilor Jackson/Silbiger m/s to approve Resolution #2007-30 with adoption of findings. Roll Call Vote: Councilor Hartzell, Jackson, Navickas, Hardesty, Chapman and Silbiger, YES. Motion passed 6-0.

Abstentions, Conflicts, Ex Parte Contacts
Councilor Jackson indicated she has had no ex parte contact, but did participate in the Council site visit held yesterday.

Councilor Chapman indicated he has had no ex parte contact, but did participate in the Council site visit held yesterday. He also noted this property is located in his neighborhood and the husband of the appellant is his dentist.

Councilor Silbiger indicated he has had no ex parte contact, but did participate in the Council site visit held yesterday.

Councilor Navickas indicated he participated in the Council site visit held yesterday and noted he is an acquaintance of the appellant Bonnie Broderson.

Councilor Hardesty indicated she participated in the Council site visit held yesterday and is also an acquaintance of Bonnie Broderson. She stated this would not have an influence on her ability to make an impartial decision.

Councilor Hartzell indicated she has had no ex parte contact, but did participate in the Council site visit held yesterday.

Mayor Morrison indicated he has had no ex parte contact, but did participate in the Council site visit held yesterday.

City Recorder Barbara Christensen read aloud the statements pursuant to the City's Land Use Code and ORS 197.763(5).

Challenges (None)

Staff Report
Community Development Director David Stalheim presented the staff report. He noted the Planning Commission approved the applicant's request for a Physical Constraints Review Permit and stated this is a time sensitive issue and the extension period granted by the applicant expires on August 31, 2007.

Mr. Stalheim explained the access point to the applicant's property has historically crossed two tax lots, and the survey indicates that a small triangular area of 3 sq. ft. of existing driveway is located on the appellant's property (tax lot 412). The driveway also crosses tax lot 411, however the owner of that property has indicated her willingness to to grant an access easement to the applicant. Mr. Stalheim noted the preliminary grading and drainage plans include moving the proposed driveway completely off of tax lot 412. Mr. Stalheim commented on the location of the utility trench in the Grandview right-of-way and stated the applicant has requested for the utility trench to continue to be located in the center of the existing driveway as originally proposed. He noted that if the Council agrees with this, Condition #6 placed by the Planning Commission will need to be amended or struck. He clarified the revised topographic survey outlining the location of the trees was not available when the Planning Commission made their decision and he does not believe the Planning Commission would have added this condition if they knew it would result in the removal of vegetation.

Mr. Stalheim noted the three potential motions listed the Council Communication.

Applicant's Presentation
Tom Giardano/Stated he is the Planning Agent for the applicant, and noted the Surveyor, Civil Engineer, Land Use Attorney, and Applicant are also present. Mr. Giordano stated it is important to look at the size and scale of this project and stated this planning action will have a very insignificant impact on the environment. He explained the proposed project is a modest single family residence and noted they wil be providing mitigation. He stated the project will not change the flood impact, they are not changing the grade of the road, and they will install a drainage ditch and a pipe which will lead into the creek tributary.

Stuart Osmus, Surveyor for the project, explained that he took a conservation approach when conducting the survey and noted that this was a difficult area to define the creekbed itself.

Mike Thornton, Engineer for the project, explained that he was responsible for preparing the plans and provided a brief description of the plans provided in the packet materials. Mr. Thornton noted the trench will be located in the existing gravel driveway until they reach the applicant's property and it will then be located in the new driveway. He noted there are existing utilities in that driveway now. He explained the proposed driveway improvements will begin where the gravel drive splits off from the the main drive and stated they are proposing to widen the driveway to 15 ft. to meet the Ashland Municipal Code requirements until they get past where the existing driveway branches off to the residence and then the driveway will narrow to 12 feet. Mr. Thornton noted it will be a gravel surface until the driveway reaches the applicant's property and then it will switch to permeable pavement. He also provided a brief explanation of the drainage improvements.

Mark Bartholomew, Attorney for the applicant, noted this project was originally approved in 2004 as a simple building permit, but that was subsequently was appealed by Ms. Broderson. He explained the voluntary remand and noted the Council is required to address the appellant's assignment of error.

Lynn McDonald, property owner, explained her history in Southern Oregon and stated she loves this neighborhood and the riparian area. She explained that she wanted to be present at this hearing to show how important this is to her and her family.

Mr. Osmus briefly clarified where the top of the creek bank is located.

Mr. Thornton clarified their goal is to construct the new road improvements at grade and are trying to not do any filling. He stated they may run into a portion of a driveway that needs to be transitioned, but they are confident that this will be acceptable for manueaverability. Mr. Thornton clarified they are well above the projected 100-year flood elevations and stated their primary concern is the environment of the riparian corridor.

Opponents and Their Representatives
Bonnie Brodersen/Stated the applicant proposes to place their driveway in the public right-of-way and noted a portion of her tax lot is located in the dirt drive. Ms. Broderson stated the Ashland Municipal Code indicates that the driveway must be 20 ft. wide, not 15 ft., and the driveway must be paved. She stated the applicant's driveway is 5 ft. short of where it must end up and if they extend the driveway 5 ft. past the makers it will destroy the native vegetation. She also claimed the markers the Council viewed during their site visit were inaccurate. Ms. Broderson stated one of the markers sits underneath the drip line of a 25" diameter tree and there is nothing about this in the applicant's plan. She also commented that use of the drive for the property located on County land was "grandfathered in" and only that property has the right to use the road.

Ms. Broderson commented on how this application differs from previous projects said to be similar and stated in both of the previous cases the right-of-ways were closed to the public, the driveways were not paved, and neither of the right-of-ways were located in a floodplain or riparian area. She stated it would be unprecedented for the City to permit construction of a private driveway in a right-of-way that is open to the public and abuts a public street. She also commented that this may be a liability issue for the City. Ms. Broderson stated the existing drive could not be constructed today due to the riparian and floodplain ordinances and commented on the issue of "fill". She also commented on the stormdrain and stated they cannot pipe stormdrain water into Wrights Creek, which is what has been proposed.

Councilor Hartzell/Jackson m/s to extend Public Hearing until 9:30 p.m. Voice Vote: all AYES. Motion passed 6-0.

Ms. Broderson concluded by adding that the proposed turn around does not meet the code requirements.

Ms. Broderson clarified she did not raise the point regarding the existing driveway being grandfathered in when she was before the Planning Commission. She stated the dirt road trespasses over her property and tax lot 411, but the woman who owns the property in the County has their permission to use it and stated no one else has permission to trespass over these properties.

Those Wishing to Provide Testimony
Art Bullock/Stated the planning action record shows the driveway encroaches within 20 ft. of the creek and questioned where to measure the top of the bank when there is no top. He stated given this ambiguity, it is clearly within that 20 ft. measurement. Mr. Bullock commented on the utility trench and stated it is not crossing the riparian area, it is parallel to it, and is therefore is not consistent with the Ashland Municipal Code. He stated the planning action record and the facts as presented show that the code requirements are not being met and stated the Council is being asked to exercise discretion in an area where the code does not grant discretion.

Lloyd Haines/96 N Main Street/Noted he owns the property adjacent to applicant's and stated he is in favor of the applicant's request. Mr. Haines stated the driveway will continue to be used by the person down the road and does not understand why the applicant would not be permitted to place a house on her property. He added that it would be a shame to not find a way to permit the applicant to put a house on her property.

Joseph Bova/821 Grandview Drive/Noted his property is located in the County and stated the fact that the applicant has applied for a Physical Constraints Review Permit shows their willingness to make everyone happy. Mr. Bova commented on four of the alleged assignments of error raised by Ms. Broderson. Regarding Issue #3, he stated any driveway development on Grandview would be a great improvement to the street since the City's Public Works Department refuses to maintain any of the street west of the fork that leads to the McDonald's lot. He noted the purpose of a public right-of-way is to provide public access and stated even the opponent's driveway is located in the Wrights Creek Drive right-of-way. Regarding Issue #5, Mr. Bova stated the approval was legal and noted the process that was completed in 1979. Regarding Issue #6, he stated this is not a significant riparian corridor due to its determination in 2005 as not being a fish bearing stream and noted that these are intermittent branches and do not run year round. He also noted in 1995 the County hearings officer ruled that this area is outside any designated impacted or sensitive wildlife habitat area. Lastly, Mr. Bova commented on the stormdrain issue and stated all the subdivisions to the south and east of this area dump into Wrights Creek and urged the Council to approve the application for development with the conditions cited by the Planning Commission.

Rebuttal by the Applicant
Mark Bartholomew/Clarified they have an easement from Ms. Hulse, who owns tax lot 411, but Ms. Broderson declined to do the same. He stated if she would have authorized the easement, they would not have to encroach within the 20 ft. Mr. Bartholomew commented on the appellant's claim that they are not permitted to access the property through the right-of-way and stated that anytime you build a new house the driveway cuts across the sidewalk and the curbface is in the public right-of-way. He commented on the opponent's speculation that there is some sort of grandfathered arrangement with the property sharing that fork of dirt road and that noone else can use that other than those people. He stated that this is not true, and if it were the McDonald's would be landlocked with no way to access it. He added the law would not allow for this possibility. Regarding the discharging of stormdrain into the creek, Mr. Bartholomew stated this is common practice and the opponent failed to cite why this wouldn't be allowed. He also clarified that the width requirement for the driveway where it forks off of Grandview is 20 ft. clear, and the driveway itself does not have to be 20 ft. wide.

Mike Thornton/Commented on the issue of the utilities and stated they could get closer to meeting the requirements in the municipal code by creating more impact in the corridor, but the applicant wanted to minimize the impact in the floodplain corridor lands.

Close Public Hearing: 9:24 p.m. with no requests for continuance.

Requests to submit final written argument (None)

Advice from Legal counsel and staff
Assistant City Attorney Richard Appicello clarified the Planning Commission found the storm drainage issue was not an approval criterion, however they did ask the the applicant to use some kind of dispersal system for the storm water (Condition #5).

Mr. Stalheim clarified the issues raised by the opponent including the storm water, impervious surface and turnarounds are not subject to the appeal tonight. He stated the only item subject to appeal is the issue of the Physical Constraints Permit and that criteria only.

Mr. Stalheim commented on authorizing private improvements within public right-of-ways and stated the private improvements have to be authorized and the mechanism used by the City for this is an encroachment permit. He stated the improvements would be paid privately, but are a benefit to the public.

Mr. Appicello noted that AMC 18.62.075 expressly states that fill and culverting shall be permitted for streets, access, or utilities. He stated 18.62.070A(3)(b) also allows fill for the purpose of aggregate base and paving materials, and fill associated with approved public and private street and driveway construction. Therefore, driveways are expressly authorized as being allowed to be constructed in the floodplain corridor.

Mr. Stalheim clarified the intention of AMC 18.62.070M is to apply to new roadways and utility connections, not existing improvements in right-of-ways. He also clarified the paved surface will only be located on the applicant's property and not in the public right-of-way.

Mr. Stalheim clarified the newer drawings are included in the Council's record for this Planning Action and clarified the drawing on page A17 indicates where the existing utilities are located.

Council Deliberation and Decision

Councilor Jackson/Chapman m/s to approve the application for a Physical Constraints Permit substantially as in record created by the Planning Commission with additional survey materials in the Council's appeal packet and the materials submitted by the Appellant; and to change Condition #6 to read, "... the public utility trench and line shall be moved away from the top of bank of Wrights Creek as far to the north as possible without disturbing the row of trees in the right of way", and allowing for adjustments during the issuance of the encroachment permit. DISCUSSION: Councilor Jackson stated this motion provides a reasonable balance. Mr. Stalheim clarified the City does not perform site reviews for single family residences. Councilor Navickas voiced his opinion that the application fails to comply with AMC 18.62.070M.

Councilor Hartzell/Hardesty m/s to amend motion regarding Condition #6 to incorporate maintaining the 20 ft. distance from top of bank, except along the outer dripline of trees mapped. Roll Call Vote: Councilor Navickas, Hartzell and Hardesty, YES. Councilor Jackson, Chapman, and Silbiger, NO. Mayor Morrison, NO. Motion failed 3-4.

Roll Call Vote on Original Motion: Councilor Jackson, Chapman, Hardesty and Silbiger, YES. Councilor Hartzell and Navickas, NO. Motion passed 4-2.

Councilor Hartzell/Navickas m/s to extend meeting until 10:30 p.m. Voice Vote: all AYES. Motion passed 6-0.

Councilor Hartzell/Silbiger m/s for staff to send letter as presented tonight at the soonest possible opportunity.Voice Vote: all AYES. Motion passed 6-0.

Councilor Hartzell/Silbiger m/s to approve correction to the Resolution. Voice Vote: all AYES. Motion passed 6-0.

Councilor Navickas/Hartzell m/s to extend first reading of this ordinance to August 21, 2007. Roll Call Vote: Councilor Hartzell, Hardesty, Navickas, Silbiger and Jackson, YES. Councilor Chapman, NO. Motion passed 5-1.

Councilor Jackson/Hartzell m/s to extend contract with Harrang/Long for the purpose of defending the City from the Mt. Ashland Association lawsuit up to the amount of $50,000. Voice Vote: all AYES. Motion passed 6-0.

Councilor Silbiger/Chapman m/s approval of Sole Source Procurement greater than $75,000 for the Cable Modem Termination System. Voice Vote: all AYES. Motion passed 6-0.

Ms. Gray submitted additional information on the Salary Resolution to the Council and provided a brief explanation of those materials.

Councilor Jackson/Silbiger m/s to approve Resolution #2007-30. DISCUSSION: Councilor Hardesty stated the City employees are outstanding, but voiced concern with the union contracts when they push salaries that the City cannot afford. She also noted there are two groups receiving a lesser percentage increase and suggested all employees receive a 3.1% increase this year. Councilor Hartzell stated the City needs to start making changes in this area and voiced her desire to have received different options. Councilor Navickas voiced support for the resolution and stated the City saves money in the long run by attracting and hiring qualified professionals. Councilor Hartzell commented that the cost of living problems are associated to the housing in Ashland and voiced support for developing a housing assistance program for employees. Mayor Morrison voiced his support for the Resolution. Roll Call Vote: Councilor Jackson, Silbiger, Navickas, and Chapman, YES. Councilor Hardesty and Hartzell, NO. Motion passed 4-2.

Councilor Silbiger/Chapman m/s to approve Resolution #2007-31. Councilor Jackson, Navickas, Silbiger, Chapman and Hardesty, YES. Councilor Hartzell, NO. Motion passed 5-1.