Mayor Stromberg called the Public Hearing to order at 7:53 p.m. for Planning Action No. 2009-00784 Annexation and Zoning Map change from Jackson County Rural Residential-5 to City of Ashland E-1 (Employment) and withdrawal from Jackson County Rural Fire Protection District 5 for approximately 1.02-acre parcel located at 615 Washington Street.  (Ron Rezek and Modern Fan) 

ABSENTIONS, CONFLICTS, EX PARTE CONTACTS

Councilor Navickas noted his attendance at the Land Use Hearing during the Planning Commission meeting and declared that it would not influence his decisions during the Public Hearing.  Councilor Chapman and Voisin noted site visits on separate occasions. 

CHALLENGES  - None

STAFF REPORT

Community Development Director Bill Molnar shared information on the three areas within Ashland’s Urban Growth Boundary (UGB) and explained that staff anticipated the majority of employment growth to occur over the next 20-50 years.  He described prior annexations and the current proposed annexation. Associate Planner Derek Severson provided a presentation that included:

• Annexation and Zoning Map Change (Site Review & Tree Removal)
• Aerial Photo
• Vicinity Map
• Proposal
• Initial Site Plan
• Proposed Elevations
• Existing MF1 Building
• Landscape Plan
• Parking
• Revised Site Plan
• Street Improvements
• Adjacent Wetland

Staff clarified that a portion of the right-of-way may go through the wetland area west of Washington Street and that current access to Washington Street was through Ashland Street.

Staff further explained that the applicants were asked to provide a revised landscaping plan that addressed the drainage issue and an arborist report regarding the trees located within the drainage corridor.  The applicant would pay for the street improvements prior to the City issuing a building permit for the next phase under Condition 5-B.  Another condition required the applicant to sign a Local Improvement District (LID) for a future signal light installation at the intersection of Ashland Street and Washington Street.  Street improvements were normally a requirement of an annexation and in this circumstance there was potential to design a green street.

APPLICANT’S PRESENTATION

Ron Rezek/709 Washington Street/Explained he was the founder and majority owner of The Modern Fan Company and provided history and information on the twelve years the business has operated.  The Modern Fan Company is an internationally based, design, assembly and distribution company with eleven employees. Because of the long lead-time for fans, the company needs additional warehouse space to store their product.  The customer base includes individual purchases, hotels and corporations. 

Mr. Rezek explained the reason the company was based in Ashland stemmed from his family having a one hundred year heritage in the Rogue Valley and his decision to raise his children in the area. 

OPPONENTS AND THEIR REPRESENTATIVES  - None

THOSE WISHING TO PROVIDE TESTIMONY - None

REBUTTAL BY APPLICANT - None

PUBLIC HEARING CLOSED: 8:20 p.m.

REQUESTS TO SUBMIT FINAL WRITTEN ARGUMENT – None - Record was officially closed.

ADVICE FROM LEGAL COUNSEL AND STAFF  

Mr. Severson summarized the request to approve the annexation of a 1.02-acre parcel at 615 Washington Street annexation, zone change and a withdrawal from Fire District 5.  This would annex the parcel at E-1 from the existing Jackson County RR-5.

City Attorney Richard Appicello explained this was a tentative oral decision for Council, findings and an ordinance would be brought back at a later City Council meeting.

COUNCIL DELIBERATION AND DECISION

Councilor Navickas/Chapman m/s to approve request for Annexation and withdrawal from Jackson County Rural Fire Protection District 5 of an approximately 1.02 parcel located at 615 Washington Street.  DISCUSSION: Councilor Navickas thought the application met the criteria of an annexation for Land Use but the decision was more subjective due to the “may annex” clause in the ordinance.  The company was the type of business the City needed to promote in the community.  Council Lemhouse agreed having a business like The Modern Fan Company benefited Ashland.  Councilor Jackson was supportive and interested in looking at the long-term circulation for that area in the Transportation System Plan.  Roll Call Vote: Councilor Voisin, Navickas, Lemhouse, Jackson, Silbiger and Chapman, YES. Motion passed.

PUBLIC FORUM

Colin Swales/143 8^th Street/Spoke on secrecy in government.  He requested documents the City Attorney had produced on the nudity ban for an Executive Session is made public and invited the Council to make a motion in favor of that request later in the meeting.  He went on to suggest that the City post or make public specific information regarding Executive Sessions similar to the School Board.

UNFINISHED BUSINESS

1.   Should the Council approve Second Reading of an ordinance titled, "An Ordinance Amending Ashland Municipal Code 10.44.012 and 10.44.020, Relating to Public Nudity and Penalties?

Council and staff discussed whether or not the Council was in deliberation with the issue and if they should allow public testimony. 

Councilor Voisin/Navickas m/s to suspend the rules and allow citizens to speak on this ordinance.  

DISCUSSION: Councilor Jackson noted this was the fifth meeting on the subject, which council was in deliberation, and was hesitant to allow further public input.  Councilor Navickas stated this was an issue of public concern and they had the responsibility to listen to public input.  Councilor Lemhouse felt that council should continue deliberation in order to move forward.  Councilor Voisin stated the ordinance had changed significantly and wanted to hear public input regarding the changes.  Councilor Jackson commented she would support the motion if the speakers followed the Mayor’s request not to repeat information shared at prior meetings.  Councilor Chapman wanted to hear input on what the public thought of the current text.  Roll Call Vote: Councilor Navickas, Jackson, Voisin, YES; Councilor Silbiger, Chapman and Lemhouse NO; Mayor Stromberg, YES. Motion passed 4-3.

City Attorney Richard Appicello read the short text for 10.44.012 and 10.44.020 Penalties aloud.

Will Storm/3607 Hwy 66/Explained he was a Fine Arts artist represented by Ignition Gallery and shared previous employment and magazine cover accomplishments.  Earlier that day he had been painting two nude female pieces of art and commented there is nothing as stunning or beautiful as a human being. 

Emily Hobbs/Sophia Larive/5310 Hwy 66/Stated she was 10 years old and had witnessed naked men and women near her school.  She shared reactions from the younger kids who had come to her regarding the incidents. It made them all feel uncomfortable.  She felt a 200-foot ban from schools was too visible and wanted the distance increased. She thought it was fine to be nude in designated areas but not near schools and wanted to ban nudity around schools. 

Ms. Larive added classmates in her class thought it is wrong for individuals to be naked around their school campus.  

Jack Hobbs/5310 Hwy 66/Spoke on behalf of several middle school students who were comfortable with nudity just not in public places around people and children who did not want to be exposed to nudity.  He thought there should be a ban around schools; public places like the YMCA and shopping centers, other areas were fine. 

Karen Hobbs/5310 Hwy 66/Explained children need clearly defined boundaries to feel safe.  As a teacher, she has a mandated duty to report child abuse.   She questioned what the difference was between a nudist exercising his or her rights being nude within a school zone and a person displaying themselves for gratification in the eyes of a child.  She encouraged Council to adopt a common sense approach with a school district wide ban.  Putting children’s safety first would never be regretted later.   

Juli Di Chiro/635 Weller Lane/Introduced herself as the Superintendent of Ashland Schools and reiterated her support of a citywide nudity ban.  She explained this was a student safety issue and did not want schoolchildren to discriminate between naked people who were harmless versus those who intend harm.  She encouraged Council to support a citywide ban instead of a 200-foot school zone area because that did not provide a safe walking home environment for children.  Additionally the Police Department needed an ordinance that was easy to enforce.  The community has a responsibility to protect children and Ms. DiChiro looked forward to a partnership with the City Council in putting forth an ordinance that helped children feel safe.

Philip Lang/758 B Street/Explained he had been a licensed clinical social worker in California and Oregon for 42 years and had run Crisis Intervention and Dunn House.  He clarified previous public testimony that stated Post Traumatic Stress Disorder (PTSD) was created in children by sexual abuse and those children are re-traumatized when they see naked people.  There was no evidence proving that.  PTSD requires fully formed defenses that a young child does not have.  Children also do not have the capacity for repression.  PTSD presumes a long period of repression.  The instance of PTSD among children subjected to sexual abuse is negligible and re-traumatization by seeing naked people non-existent.   Traumatizing sexual abuse occurs in homes, perpetrated by people the child knows.  There were plenty of laws dealing with people exposing themselves in public.  The notion that nudity has to be banned intentionally or unintentionally connects it improperly with implied sexual pathology or criminology.  The proposed ordinance was misguided, unnecessary and bad public policy.

Ralph Temple/150 Myer Creek Road/Noted a letter from David Fidanque the Executive Director of the Oregon American Civil Liberties Union (ACLU) that pointed out two pieces of bad advice the Council received from the City Attorney and three constitutional defects in the pending proposed ordinance.  Mr. Temple informed the Council if the proposed ordinance passes, the ACLU would most likely support a legal challenge against it.  He implored the Council not to pass an unconstitutional ordinance and spend taxpayers’ money on litigation.  It was unlikely the ACLU would challenge a 200-foot ban around school zones and suggested that instead.  He concluded by agreeing with earlier testimony on taking secret advice from the City Attorney.  That information should be out in the open where it can be analyzed and criticized by organizations like the ACLU and others.

Tim Larive/441 Taylor Street/Explained he was a lifelong progressive and was open to most.  He wanted his daughter to learn about the adult naked human body when she was an adult and not have it foisted on her by a complete stranger.  It was unfair for his daughter and for Council to allow something like that to happen.  He acknowledged the ACLU threat of a lawsuit, listed places in California and Oregon with full nudity bans, and found it unusual that Ashland has to be more progressive than other towns.  He asked Council to stand up against the threats of lawsuits and do the right thing with their vote.

Colin Swales/143 8^th/Noted three of the Councilors stated publicly and privately they wanted to repeal the existing ban on nudity.  In 2004 when the first ban passed, the Council was trying to weave a compromise that would make everyone happy.  It resulted in demonstrations of naked people against the ban. Mr. Swales read parts of an article in the Daily Tidings at that time and related it to the current situation.  He challenged the Council to repeal the existing ban.

Councilor Navickas expressed concern the ordinance had so many changes that it was not appropriate for second reading and wanted to propose something different. 

Councilor Navickas/Voisin m/s to postpone second reading indefinitely and request that staff come back with language that is specific to 200-feet around schools.  DISCUSSION:  Councilor Navickas explained creating harm in the ordinance extended jurisdiction to include private property.  Establishing a 200-foot ban around schools would be clear, concise, balance freedom of expression and make it easier for the police to enforce.  Defining nudity to include breasts and buttocks would prevent people wearing only g-strings around school zones that could be equally upsetting for parents.  It would address the concerns of the community, maintain protection and expand it to school areas.  Councilor Jackson did not support the motion.  The proposed ordinance used language major cities in Oregon used that have been in place for decades and challenged in court without success.  The “Whereas” statement on the proposed ordinance responded to existing law and had not been sued or taken to court anytime recently nor had Ashland’s current downtown ban.  Council worked on compromises to the ordinance that included reducing the penalty to a violation and excluding private property and would not regulate expressive behavior. 

Councilor Lemhouse did not think the Council should allow any group to dictate policy through threats and intimidation.   The Council sets the policy of the City and community values drive those decisions.  The Council needed to more forward so the community could do the same.

Councilor Chapman would not support the amendment explaining the similar proposed ordinance prior was defeated by a tie-breaking vote and there did not appear to be a shift since that vote. 

Councilor Voisin noted the ACLU has an important history in the country that she deeply respected.  She did not view the statement by ACLU as a threat but information based on their judgment and what information they have.  She supported a parent’s right to shield children from unwanted nudity but could not find evidence that public nudity triggered trauma for sexually abused children and wanted evidence.  She would support the motion because it spoke to what parents were requesting.    

Councilor Silbiger was not comfortable with some of the “Whereas” statements noting other cities did not include them in their ordinances.  It was clear after months of meetings, testimonies, research and realizing the initial school zone compromise would not work, the most reasonable solution was to follow Eugene and Portland and prohibit intentional exposure of genitalia. 

Councilor Navickas appealed to Councilor Chapman to support the alternative as it specifically addressed areas around schools and did not attack civil liberties.  Councilor Chapman responded he did not support either of the proposed ordinances.  

Mayor Stromberg did not think any of the options were perfect.  He felt that a parent had the right to decide when and how their children are exposed to naked people.  The best solution would be a 250-300 foot ban from schools and major routes to schools and provide police with a specific map they could show someone in violation and give them a warning.  Councilor Navickas proposed the alternative come back for a first reading, with draft language similar to the Mayor’s suggestion to include routes to schools. 

Councilor Jackson commented on correspondence received from the nudist communities that conveyed their belief in nude recreation and the ability to be nude in appropriate places but did not support public nudity.  Those letters were one of the reasons she was comfortable removing the private property piece.

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

Councilor Jackson/Lemhouse m/s to remove the following language from the second to the last “Whereas” statement on page 2 of the ordinance: “…and individuals desiring to engage in protected expression involving nudity are encouraged to coordinate with responsible public officials so as to avoid harm to participants and citizens alike…”  DISCUSSION:  Councilor Jackson explained the ordinance regulated conduct, not expression and the statement muddied the intention.  Councilor Navickas disagreed with the entire “Whereas” statement saying it created a contradiction and blurred the intention.

Councilor Navickas/Voisin m/s to amend the motion to remove the entire “Whereas” clause second to the last “Whereas” statement on page 2.  Roll Call Vote: Councilor Voisin, Chapman, Navickas, YES; Councilor Silbiger, Lemhouse and Jackson, NO; Mayor Stromberg, YES. Motion passed 4-3.

Police Chief Holderness explained that legally in the state of Oregon, exposing genitalia is considered conduct not expression and the Oregon Supreme Court had agreed it was conduct.  City Attorney Richard Appicello further explained the ordinance was a prohibition on conduct. 

Councilor Jackson/Lemhouse m/s to approve Ordinance #3001 as amended.

Mr. Appicello read the ordinance aloud.

Councilor Navickas/Voisin m/s amend the motion to remove the three “Whereas” clauses associated with the US Constitution, the third, fourth and fifth statements and remove as well the “Whereas” statement referring to the Federal or State Constitution under 10.44.012.  DISCUSSION:  Councilor Navickas asked Councilor Chapman for support, reiterating the ban would be a significant change to the community on what is allowed in the name of protest and expression and shared examples.  Councilor Chapman agreed on not having verbiage in the code stating it was not violating the State Constitution.  Mr. Appicello clarified the language indicated it would be applied in a case-by-case basis in a manner that did not violate the Oregon Constitution.   Roll Call Vote:  Councilor Voisin, Chapman and Navickas, YES; Councilor Silbiger, Lemhouse and Jackson, NO; Mayor Stromberg, YES.  Motion passed 4-3.

Councilor Navickas/Voisin m/s to amend motion to remove the “Whereas” clause that states:  “Whereas, victims of sexual abuse, especially children, are particularly sensitive to conduct of a sexual nature, including unexpected public nudity, and such conduct is only exacerbated if it occurs in or around areas considered ‘safe areas,’ like schools…”  DISCUSSION:  Councilor Navickas thought the statement contrived harm, there was no evidence and to codify it was inappropriate.  Councilor Lemhouse was concerned with removing the “Whereas” statements as these were used as a basis for the decision and provided clear intent so the City did not have to argue it in court and should be retained for any undo expense that may be brought on the City.  Councilor Chapman thought the ordinance was more about nuisance instead of harm.  Roll Call Vote:  Councilor Silbiger, Voisin, Chapman and Navickas, YES;  Councilor Jackson and Lemhouse, NO.  Motion passed 4-2.

Councilor Navickas/Voisin m/s to amend under 10.44.012 Public Nudity to include after “…while in an exterior public place…” the following language: “…excluding designated areas where nudity is allowed by resolution…” DISCUSSION:  Councilor Navickas requested an exception to allow areas of nudity in the future.  Mr. Appicello cautioned designating an exterior public place for public nudity could create a nuisance.  Councilor Jackson thought the amendment complicated the ordinance and was not in favor of it.  Councilor Lemhouse commented the amendment was another effort to make it difficult to support in court and that Council needed to move forward with the proposed ordinance.

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

Mr. Appicello read the sections deleted from the ordinance aloud. 

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

ORDINANCES, RESOLUTIONS AND CONTRACTS

1.   Should the Council approve First Reading of an Ordinance amending Council Rules Chapter 2.04.090, 2.04.100 and 2.04.110 to add Council Rules relating to commissions and liaisons, and move the ordinance on to Second Reading”?

Councilor Voisin/Lemhouse m/s to continue reading of ordinances. Voice Vote: all AYES. Motion passed.

2.   Should the Council approve First Reading of an Ordinance providing for uniform policies and operating procedures for advisory commissions, committees and boards?

Item postponed (see motion above)

NEW AND MISCELLANEOUS BUSINESS

1.   Will the Council amend the Downtown Sidewalk Usage Map adding an additional site for one newspaper rack location in front of Louie's Bar & Grill?

Public Works Director Mike Faught gave the staff report and introduced Melissa Jensen, the owner of Louie’s Bar and Grill.  He explained there were no variances or exceptions under the criteria allowed in the ordinance, reviewed the criteria and applied it to the request for exception by Curtis Hayden, the Editor and Publisher for the Sneak Preview.  If Council decided to approve the exception, staff recommended an amendment to the Downtown Usage Map.

Councilor Lemhouse noted a potential conflict of interest but felt he could make an unbiased decision.

Melissa Jensen/41 North Main Street/Explained she was the owner of Louie’s Bar and Grill, supported relocating the publication racks and was distressed to hear it was being reconsidered.  She preferred to have all the publications racks removed from her property front. 

Colin Swales/143 8^th Street/Expressed his concern with the width of the sidewalks in the downtown area concerning the newspaper racks.  He thought publication racks should go on private property adjacent to the public right of way.

City Attorney Richard Appicello clarified if Council amended the Downtown Usage Map and created space for publication box in front of Louie’s, that space would be assigned by lot and there was no guarantee the requester would be allowed to use the box.  Mr. Faught confirmed an initial lottery determined space in the publication racks followed with a rotation process and that all the participants had agreed on the seven locations.  Publication boxes not in compliance would either be removed or moved to private property. Councilor Chapman added several businesses were asked if they wanted publication racks on their private property and a number moved inside of Bloomsbury Books.  

Councilor Chapman/Voisin m/s to deny Mr. Hayden’s request to amend the Downtown Usage Map. DISCUSSION: Councilor Chapman thought the rules were clear and customers would adapt.  Councilor Silbiger was in favor of the motion.  Councilor Navickas thought it restricted freedom of the press and limited expression and was not in favor of removing any of the newspaper boxes. Councilor Lemhouse would support the motion based on staff recommendation.  Roll Call Vote: Councilor Silbiger, Voisin, Chapman, Jackson and Lemhouse, YES; Councilor Navickas, NO. Motion passed 5-1.

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS

1.   Housing Commission

ADJOURNMENT

Meeting was adjourned at 10:24 p.m.

__________________________________                _____________________________

Barbara Christensen, City Recorder                               John Stromberg, Mayor