MINUTES FOR THE REGULAR MEETING

ASHLAND CITY COUNCIL

September 22, 2009

Council Chambers

1175 E. Main Street

CALL TO ORDER

Mayor Stromberg called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers.

ROLL CALL

Councilor Voisin, Navickas, Lemhouse, Jackson, Silbiger and Chapman were present.

MAYOR’S ANNOUNCEMENTS

Mayor Stromberg gave an update on the 1/186^th Infantry Battalion of the 41^st Brigade Combat Team of the Oregon National Guard (1/186). All Oregon soldiers were in their battle rhythm, performing their jobs with a sense of routine and everything was running smooth.  However, there were rumors their deployment will be extended.  He went on to note changes to the agenda.   

SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?

The minutes of the Regular Council meeting of September 8, 2009 were approved as presented.

SPECIAL PRESENTATIONS & AWARDS

Presentation on 40th Anniversary Sister City Visit with photos by Graham Lewis.

Mayor's Proclamation of October 4 - 11 as National Fire Prevention Week was read aloud.

CONSENT AGENDA

1.   Does the Council accept the Minutes of Boards, Commissions, and Committees?

2.   Will the Council, acting as the Local Contract Review Board, consent to enter into two public contracts for Towing and Storage Services?

3.   Does the Council wish to confirm the Mayor's appointment of Steve Hauck to the Transportation Commission with a term ending April 30, 2010?

4.   Will Council approve and authorize the Mayor to sign Amendment #5 to the Clean Water State Revolving Fund Loan No. R11750 reducing the required reserve from $1,751,369 to $875,490?

Councilor Jackson requested that Consent Agenda item #4 be pulled.

Councilor Silbiger/Chapman m/s to approve Consent Agenda items #1 through #3. Voice Vote:  all AYES.

Councilor Jackson noted and thanked staff for their work on reducing the reserves requirement that in turn will simplify the budget. 

Councilor Jackson/Lemhouse m/s to approve Consent Agenda #4.  Voice Vote:  all AYES.

PUBLIC HEARINGS

1.   Will the Council approve a resolution adopting police special service fees, and repealing the police special service fees section of resolution 94-23?

Police Chief Terry Holderness explained how the purchase of a digital fingerprinting system, the addition of  taxi driver license fees and other technological changes in the Police Department have prompted a review and increase in fees.

Public Hearing Open:  7:32 p.m.

Public Hearing Closed:  7:32 p.m.

Councilor Chapman/Voisin m/s to approve Resolution #2009-25.  Roll Call Vote: Navickas, Chapman, Silbiger, Jackson, Lemhouse and Voisin, YES.  Motion passed.

2.   Does the Council want to raise electric rates by 4% to cover increased operational expenses and higher wholesale power costs from BPA?

Director of Electric Utilities Dick Wanderscheid explained that Bonneville Power Administration (BPA) raised wholesale power rates by 7.5% and based on actual loads, their rate model estimates that the City’s annual power bill will increase by $380,000 per year for the next two federal fiscal years.  The extra costs for the current fiscal year will be $287,000.  Passing a 4%, electric rate increase would generate an additional $300,000 and reduce the fund by approximately $288,000 falling short $94,000 of the target.  Staff analyzed the numbers and recommended a 4% increase effective November 1, 2009 for all electric rates in an attempt to balance the fund while keeping the impact to Ashland citizens and businesses minimal.

Public Hearing Open:  7:35 p.m.

Public Hearing Closed: 7:35 p.m.

Staff responded to an inquiry regarding the substation purchase.   The substation would be expensive to purchase but a good investment over time.  It would cost approximately $2million with an 8-year pay back at $240,000 annually in delivery fees.  BPA will conduct an economic analysis to determine whether it is financially feasible.   

Councilor Voisin/Silbiger m/s to approve Resolution #2009-26.  DISCUSSION:  Councilor Navickas thought the 10% charge was outside the market rate the City would normally charge a private utility, 7% was more appropriate.  He suggested a 3.5% increase and removing the deficit from the franchise fee.  The rate increase was regressive, burdened the ratepayers and should be on the property tax instead.  Councilor Silbiger commented that in order to meet the budget, the increase should be 5% and at 4%, there was no room in the general fund to make up the difference.  Councilor Chapman was not pleased with the increase but understood it was due to BPA raising their rates.   He was willing to look at franchise fees and adjusting rates in the next budget cycle.  Councilor Lemhouse did not support the rate increase, wanted the City to stop looking at increasing revenue to accomplish goals and start looking at ways to cut expenses. 

Councilor Voisin thought the time to deal with lowering the electric rates, review the franchise fees and the electric users tax was is in the next budget cycle.  The rate increase was part of the budget and necessary.  Councilor Jackson supported the increase noting this was an outside increased cost agreeing there were issues regarding the long-term distribution of fees and collections.  Councilor Navickas added the City was looking at a 6% increase in 2011 to meet conservation goals and avoid Tier 2 power, adjustments made now prepared for the future.

Roll Call Vote: Councilor Voisin, Jackson, Chapman and Silbiger, YES; Councilor Lemhouse and Navickas, NO. Motion passed 4-2.

NEW AND MISCELLANEOUS BUSINESS

1.   What type of Tier 2 power resources does the City want to purchase from BPA under the new 20-year Regional Dialogue contract?

Director of Electric Utilities Dick Wanderscheid provided the staff report and explained there were two rate plan choices for Tier 2 power, the Short Term Rate Plan and the Load Growth Rate Plan.  This decision would not have a fiscal impact on Tier 2 pricing because the load was well below the average mega watt (aMW) and would remain low in 2014. 

Staff recommended the Short Term rate plan for Tier 2 power from 2011–2014.  It would allow time for a rate evaluation, three years of pricing for the Short Term and Load Growth Rate Plans would be available as well as potential vintage rates.  Rates for Short Term and Load Growth Rate Plans are currently unknown. For Short Term Rate Plan prices, Bonneville Power Administration (BPA) will purchase power daily or monthly, Load Growth Rate Plan will be a mixture of short term 2-3 years contracts and Vintage rates will be tied to contract or resource.  BPA may offer a wind vintage rate, to meet renewable portfolio standards. In May 2009, BPA estimated Short Term delivered costs at $54 per MW hour; Load Growth delivered costs at $60 a MW hour and Vintage rates at approximately $117 a MW hour.   

If the City grew outside the Tier 1 allocation, it would pay a load shaping charge for kilowatt-hours larger than Tier 1.  The City would purchase one average MW of flat block power every year at a Tier 2 rate, but at very a small amount.  Load forecasts done by staff and BPA indicate the City will not dip into Tier 2 rates for a while. Currently the Tier 2 Short Term rate is the lowest.  

Councilor Chapman/Navickas m/s to accept the Electric Department’s recommendation to choose to serve the City’s Tier 2 power load with the Short Term Rate Plan.  DISCUSSION:  Councilor Chapman thought it was a clear choice given that rates are unknown for the long-term plan.  Roll Call Vote: Councilor Jackson, Voisin, Chapman, Navickas, Silbiger and Lemhouse, YES.  Motion passed.

PUBLIC HEARINGS cont’d.

3.   Will the Council approve increases to the Street Fund, Transportation and Storm Drainage utility fees effective November 1, 2009?

Administrative Services Director Lee Tuneberg presented the staff report and recommended a 3% increase in both utilities that will have a combined financial impact of 35cents per month on the single-family residents’ fees.  Both utilities are struggling.  Council could increase the Storm Drain fees because that utility was barely breaking even.  Deferring the increase would create a larger financial impact the following year.

Staff explained that stimulus money offset future capital needs but not City dollars, most of the stimulus dollars in water and wastewater would come through as 0% loans.

Public Hearing Open:  8:03 p.m.

Public Hearing Closed:  8:03 p.m.

Councilor Jackson/Silbiger m/s to approve Resolution #2009-27 to increase the Street Fund Utility fees.  DISCUSSION:  Councilor Chapman suggested moving the percentage allocated for Transportation utility to the Storm Drain utility.  Councilor Jackson thought it was better to have smaller increases than a large one in the future.   Roll Call Vote: Councilor Silbiger, Navickas, Jackson, YES; Councilor Chapman, Voisin and Lemhouse, NO.  Mayor Stromberg broke the tie with a YES.  Motion passed 4-3.

Councilor Silbiger/Chapman m/s to approve Resolution #2009-28 to increase the Transportation and Storm Drain Utility fees.  DISCUSSION:  Councilor Silbiger noted the Storm Drain fund had a negative balance of almost $1million, passing the increase would make a slight improvement to the balance. 

Roll Call Vote: Councilor Navickas, Jackson, Silbiger and Chapman, YES; Councilor Lemhouse and Voisin, NO.  Motion passed 4-2.

4.   Will the Council approve conveyance of deeds to implement the provisions of the IGA with the Housing Authority of Jackson County?

City Attorney Richard Appicello provided the staff report and explained when Council approved removing the partitioning plat there was not a Public Hearing as required by AMC 2.21.7.25.  This Public Hearing satisfied that requirement.  A total of 3.75 acres will go to the Housing Authority of Jackson County (HAJC).  It was unclear whether language was added to the IGA that would have the land return to the City if the project failed.

Public Hearing Open:  8:10 p.m.

Public Hearing Closed: 8:10 p.m.

Councilor Navickas/Voisin m/s to approve conveyance of real property to the Housing Authority of Jackson County to implement the IGA deeds.  DISCUSSION:  Councilor Lemhouse asked what the impact would be if the project failed and the City did not get the property back.  Mr. Appicello explained if language was provided in any of the documentation about the land returning to the City, he would include it in the deed.

Roll Call Vote: Councilor Navickas, Silbiger, Jackson, Lemhouse and Voisin, YES; Councilor Chapman, NO.  Motion passed 5-1.

PUBLIC FORUM

Melanie Mindlin/1248 Calypso Court/Represented the initiating group of Transition Town Ashland and provided a report on the Council Goals, Values and Vision.  She provided the history of Transition Town Ashland, shared their goals, core values and suggestions.  She invited the Council and public to attend an introduction to Transition Town’s work the first Thursday of each month at Peace House.  The Transition Town website is transitiontownashland.org. 

Jim McGinnis/629 Altamont Street/Read a quote from Dr. Martin Luther King and thought this was a unique opportunity to establish goals and visions that will effect generations and shared summaries from the report.

Ms. Mindlin explained the core value for planning for the future of Ashland was to embrace change and proactively address the issues of non-renewable energy reduction, climate change and ecological and biological constraints, and all activities associated with planning.  She recommended adding a sustainability plan to the Comprehensive Plan.  Mr. McGinnis read goals from the report and Ms. Mindlin introduced the team.

NEW AND MISCELLANEOUS BUSINESS

1.   Will Council designate a voting delegate to the annual League of Oregon Cities Conference?

City Recorder Barbara Christensen explained the annual process for designating a voting delegate and alternative to the League of Oregon Cities.

Councilor Silbiger/Chapman m/s to designate Councilor Jackson as voting delegate to League of Oregon Cities conference and Councilor Navickas as the alternate delegate.  DISCUSSION:  Councilor Voisin confirmed that the voting delegate represented all of Council.  City Administrator Martha Bennett clarified that the voting delegate would vote on statewide issues the Council rarely as a whole did not agree.  Councilor Jackson provided an example.   Voice Vote:  ALL AYES.

UNFINISHED BUSINESS

1.     Discussion on nudity ordinance.

Submitted documents listing what other cities did regarding public nudity and a summary were distributed to the public.  City Attorney Richard Appicello explained the documents were limited disclosure for purposes of public records law and not intended to be a waiver of privilege or general release of the underlined document. He went on to specify this was a policy decision for the Council to decide.  Compared to what other cities allowed and prohibited regarding public nudity the Ashland ordinance was less restrictive.  The current ordinance was defensible and the proposed amendments restricting public nudity in school areas, etc, would be legal as well.  He provided history on State law regarding nudity, noted previous cases tried in Oregon and the legal affects of nudity as a nuisance.  He suggested the Council consider changing the “…place visible from a public place…” languages in the current ordinance or striking it, decide geographic limitations or allow public nudity citywide, include mental state and determine whether it was a violation or crime.

Mr. Appicello clarified if Council wanted to make it a crime, including “criminal negligence” would be enough.  If the ordinance did not include mental state they could add “intentionally, knowingly and recklessly” to establish criminal culpability.  Statutes that contain “intentionally” regarding mental state could be more difficult to prove and typically, violations do not include mental state.

Body activism, protected expression and violation of public nudity law would be case-by-case to determine whether it violated first amendment rights.  Every case had to be decided by the facts of that case; these cases would be no different.  Public nudity is a violation and public indecency is a crime under State and City law. The City has jurisdiction of violations and crimes committed within city limits. 

Council asked if the origins of the ordinance were based on having a tool to address the youths on the plaza.  Staff will pull the minutes to determine why the ordinance was initiated.    

Derek Volkart/Talent/Introduced himself as the Chair of the Southern Oregon American Civil Liberties Union (ACLU) but was speaking as a citizen.  He expressed shock at how far the public nudity issue had gone.  He did not believe a naked man was harmful to children and thought the potential harm was the unnecessary authoritative response to non-conformists who are often targeted.  The public has no more right to tell someone to wear clothing anymore than dictating how one should dress. Public reaction was disproportionate to the situation and he cautioned not allowing big brother to get a grip on everyone’s reality.

Ralph Temple/150 Meyer Creek Road/ Spoke on behalf of the Southern Oregon Chapter of the ACLU and explained  the basics of civil liberties.  Liberty meant individuals get to be free, without the restraint of authority and government.  The culture of liberty values is the right to be different and that is why the public has to tolerate movements like the American Nazi Party and the Ku Klux Klan when they exercise their right of free speech. The ACLU lost a quarter of its support when they represented those movements but the Supreme Court unanimously voted for their right to free speech. When people encounter public nudity and do not like it, they should look the other way, liberty means tolerating the eccentrics.  The Bill of Rights was specifically written to limit what the majority could do to the dissenters, outcasts and non-conformists.  The nation’s philosophy is that liberty is so important it outweighs the public interest unless it is liable, slander, perjury or physical violence.  Sexual expression is expression and it has never held that nudity is not expression and most likely never will.  Mr. Temple cautioned Council that changing the ordinance could incur legal risks and urged Council not to expose the City to lawsuits and other ramifications that could be very expensive.

Colin Swales/143 8^th Street/Voiced his frustration and criticized the process, the lack of information in the Council packet and the precedence this agenda item had received.  He explained the ordinance was passed in 2003 as a tool for the Police Department to prohibit skinny-dipping in the park with the intention never to prosecute and was flabbergasted that Council considered making it a criminal action.  He felt it was a waste of everyone’s time. 

Councilor Lemhouse/Jackson m/s that Council direct staff to bring back an amendment to the existing ordinance making it a violation for intentionally exposing genitalia within a 1,000 feet of a school while in public or a place visible from a public place.  DISCUSSION:  Councilor Lemhouse explained he wanted to clean up some of the language in the existing ordinance in terms of a place visible from a public place.  He requested it be a violation and did not want to criminalize the act because it was not a sex offense in the criminal sense.  Adding “intentionally or knowingly” would eliminate any ambiguity.  He wanted the right to have discussions with his children regarding nudity and sexuality on his terms, not in route to school where a man or woman was intentionally exposing their genitalia within a school zone.  That took away his rights and his child’s rights.  Public nudity also underestimated the impact to survivors of sexual abuse.  The limitation was reasonable and not as restrictive as other cities.  The City was well within their rights to do this and sound if that was the decision. He affirmed that children who have suffered sexual abuse are vulnerable and sensitive to seeing a naked person in that context in a school zone and it is important not to diminish that fact.

Councilor Navickas compared restricting schools zones to Measure 9 regarding homosexuality.  The ordinance attacks individuals who are body activists or body consciousness.  Society has unhealthy views regarding body consciousness, there are eating disorders, pornography, highly sexual advertising.  It was important to protect those individuals who want to do nude activism because it made people begin to question their own understanding and conception of the human body.  Society needed to mature their conceptions of the human body in general.  He commented on public testimony earlier that referred to dress code and how the ordinance was moving towards a dress code in the community.  Ashland is a community that works to protect progressive thought, free speech and the rights of individual citizens.  He was happy to live in a town with the occasional naked person walking down the street, wanted it to continue and did not want the community to eat away at those breaks in tradition.

Councilor Jackson supported the concept in general adding the community has always had a balance between freedom, expression, tolerance, individualism and the norms of society.  Children should be able to walk to school without being confronted with something that felt threatening.  No matter what the adult standards were. This would act as increment to the ordinance in response to situations that occurred in the community.  

Councilor Lemhouse clarified the motion prohibited exposing genitalia from a public place or private place viewed from a public space within 1,000 feet of a school.  City Administrator Martha Bennett added that prior to changing the ordinance staff would provide Council with a map that would indicate the number of areas this would affect and noted it may cover the entire community.  Councilor Lemhouse reiterated this was a tool for the Police Department to notify individuals they cannot be naked with 1,000 of a school zone, non-compliance would result in a citation. 

Councilor Chapman commented that simply being naked was not harmful and certainly not criminal, if anything it was a nuisance and a violation.  He understood a good portion of the community found this behavior offensive and added he found a lot of behavior more offensive than nudity.  He did not support expanding the current ordinance into a patchwork of anti-nudity zones.  If the community as a whole took a stance on nudity, he would be more likely to support an ordinance similar to Eugene or Portland and strongly supported appealing the current ordinance.

Councilor Silbiger explained this was about community values, not politics.  The vast majority of the world has standards that prohibit walking around naked.  He was not in favor of the original ordinance and had talked with people who he thought would be opposed to restricting nudity in school zones that were actually offended it was allowed around schools. These are personal issues and Council needs to address them.  He agreed on restricting nudity in school zones but thought it would not be realistic after looking at the map.  People could challenge other city ordinances as a violation of the Oregon Constitution but it was not a violation of Federal Constitution.  Ultimately, this would be a referendum of community values. This was something the community believed should happen and he doubted the City was violating the rights of people.  Citizens could make these types of standards and he supported the motion in order to bring it forward for community discussion.

Councilor Voisin did not support the amendment because one man exposing his genitalia not knowing he was in a school zone did not warrant a law. It seemed sexist because the ordinance did not include breasts and the current ordinance itself was working fine.  She supported appealing the ordinance but given public concern, thought the City should retain it.

Mayor Stromberg agreed the issue was community values and did not feel comfortable having Council determine those values on this issue.  That determination belonged to the community and there was a public process for it.  He felt there were far more sexually overt activities, dress and publications that were more threatening to children than a naked person was.  He would not vote in favor of the amendment, the community needed to go through the public process.

Councilor Jackson commented the issue was originally brought to Council and decisions were often based on the public input Council receives.  Council had heard a considerable amount of testimony the first night; research showed Ashland did not have the strictest ordinance and now Council was taking a measured approach in response.  The public deserved the opportunity to come back to Council on this issue.   

ROLL CALL VOTE:  Councilor Lemhouse, Silbiger and Jackson, YES; Councilor Navickas, Voisin, and Chapman, NO; Mayor Stromberg, NO.  Motion failed 4-3.

Councilor Silbiger/Lemhouse m/s an ordinance be prepared for the purpose of placing it on a future ballot for public referendum using the Eugene ordinance as an example.  DISCUSSION:  Councilor Silbiger agreed this was a community values decision and Council could further that discussion by putting it on the ballot.  Councilor Navickas thought the Council’s role was to find common ground and move forward issues with majority agreement.  Putting this on the ballot would divide the citizens when Council should be working to bring community together.  Mayor Stromberg explained if there was enough interest in this issue to collect the signatures needed to get it on the ballot, it was appropriate.  This was a question of balance within the community and he did not feel equipped to guess what that was.  Councilor Chapman commented he had seen many initiatives that were bad law.   He would reluctantly vote no but wanted to see something similar come forward and a repeal of the current ordinance.  ROLL CALL VOTE:  Council Lemhouse, Silbiger and Jackson, YES; Council Navickas, Voisin and Chapman, NO.  Mayor Stromberg broke the tie with a NO vote.  Motion failed 4-3.

ORDINANCES, RESOLUTIONS AND CONTRACTS

1.   Would the Council approve second reading of an ordinance to amend Ashland Municipal Code Chapter 2.41, "Voluntary Contribution and Spending Limits for Candidates for City Offices"?

City Recorder Barbara Christensen noted changes to the formula that held the postage rate to a percentage increase based on the current CPI-all urban consumer Portland index that would be the current postage rate and increased annually January 1 based on whatever the CPI was.  Another change regarded the appeal process that would have Council select the hearing officer.

City Attorney Richard Appicello read the changes to the ordinance and the title aloud.

Council and staff discussed the formula and possible changes.  Staff will research and bring back formula options for the Council. 

Councilor Jackson/Voisin m/s to continue second reading to the October 6, 2009 Council Meeting.  ROLL CALL VOTE:  Councilor Voisin, Navickas, Lemhouse, Jackson, Silbiger and Chapman, YES.  Motion passed.

Councilor Jackson/Navickas m/s to move the remaining four ordinances to the October 6, 2009 Council Meeting.  ROLL CALL VOTE:  Councilor Voisin, Navickas, Lemhouse, Jackson, Silbiger and Chapman, YES.  Motion passed.

2.   Should the Council approve second reading of an ordinance titled, "An Ordinance Amending the Uniform Administrative Appeals Process AMC Chapter 2.30 and AMC 1.04.010 Definitions,"?

Delayed due to time constraints.

3.   Should the Council approve first reading of an ordinance titled, "An Ordinance Relating to Liquor License Review and Amending AMC Chapter 6.32"?

Delayed due to time constraints.

4.   Should the Council approve first reading of an ordinance titled, "An Ordinance Relating to Chain Requirements for Commercial Vehicles"?

Delayed due to time constraints.

5.   Should the Council approve first reading of an ordinance titled, "An Ordinance Relating to Parking and Amending AMC 11.24.070"?

Delayed due to time constraints.

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS

1.   Planning Commission - Delayed due to time constraints.

SUMMARY OF MEETING

ADJOURNMENT

Meeting was adjourned at 10:30 p.m.

Barbara Christensen, City Recorder 
John Stromberg, Mayor