MINUTES FOR THE REGULAR MEETING

ASHLAND CITY COUNCIL

August 3, 2010

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 and Silbiger were present. Councilor Chapman was absent.

MAYOR’S ANNOUNCEMENTS

Mayor Stromberg announced vacancies on the Planning Commission, Public Arts Commission, Housing Commission and Tree Commission.

SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?

The minutes of the Study Session of July 19, 2010, Joint Meeting with Ashland Hospital Board of July 20, 2010 and Regular Meeting of July 20, 2010 were approved as presented.

SPECIAL PRESENTATIONS & AWARDS

Proclamations of August 6, 2010 as Hiroshima Day and August 9, 2010 as Nagasaki Day were read aloud.

CONSENT AGENDA

1.   Will Council approve the minutes of Boards, Commissions, and Committees?

2.   Does the Council wish to confirm the Mayor's appointment of Thomas Myers to the Tree Commission with a term to expire April 30, 2013?

3.   Will Council accept the quarterly report at presented?

Councilor Jackson/Lemhouse m/s to approve Consent Agenda items. Voice Vote: all AYES. Motion passed.

PUBLIC HEARINGS

1.      Will Council approve First Reading of an ordinance titled, "An Ordinance Establishing Fees and Charges for Municipal Court Administration" and move the ordinance on to Second Reading? Will Council approve a resolution titled, "A Resolution establishing fees for the administration of the Ashland Municipal Court" after the public hearing?

City Attorney Richard Appicello presented the staff report that included a proposed ordinance and resolution.  He clarified the proposed fee schedule, how it related to the State imposed surcharge and requested Council to consider the following staff recommendations:  

• Make fees consistent with the State surcharge currently in effect
• Add a $100 Bench Probation Surcharge
• Retain the $25 Probation Violation Charge
• Do not include an additional $100 Diversion Petition surcharge to DUII and Marijuana diversion programs
• Increase the expunction application filing fee to match the State surcharge of $250

Mr. Appicello went on to address the following concerns and suggestions made by the Municipal Court Judge:

·         The proposed $60 fee for Diversion or Deferred Sentence was cost recovery for City Attorney’s office not necessarily the Court.

During this process, the City Attorney acts as the supervisor similar to the Judge for Bench Probation cases.  The $60 fee covers administrative costs to defer the case or keep it off the individual’s record.

·         Cost recovery for City Attorney’s office for Civil Compromise costs. 

The Prosecutor and Defense Attorney perform the majority of the work involved with Civil Compromise cases. State statute indicates upon the victim’s satisfaction and payment of cost and expenses incurred the Judge can dismiss the charge.  Cost and expenses can include Court appointed Attorney’s fees and the cost of prosecution.  The proposed fee set a dollar amount so there was a clear amount to be paid.

• Establishing Bench and Jury Trial fees and giving the Judge more authority to waive the fees. 
  The City was proposing a $100 reimbursement fee when a defendant requests a Jury Trial and loses. A similar fee would apply to Bench Trials as well.  The fine for a defendant who failed to appear would be $150 for a Jury Trial and $90 for a Bench Trial.
• The Judge’s request for more discretion to waive the $25 Installment Payment fee.
  Staff included an additional proposal in the ordinance for this request. 
• The Judge’s suggestion for a $25 fee for second continuance requests. 
  Staff could add this to the ordinance as a footnote.  
• City Administrator questioned retaining the $5 Court Appointed Counsel Application fee. 
  This amount is bundled in Court-Appointed Attorney costs. 

 Mr. Appicello explained the Municipal Court was not a “court of record” and proceedings were not recorded.  The proposed ordinance would request the Municipal Court to keep written records of decisions made when fees were waived or determined.  

Municipal Court Judge Pam Burkholder Turner clarified the information submitted by the Court Clerk in a 2008 email regarding current Court Fees should not be considered because it was inaccurate.

Judge Turner read a written statement submitted to the record of her concerns the proposed ordinance and resolution would affect the Ashland Municipal Courts ability to retain flexibility and judicial discretion.  There were 126 Municipal Courts in Oregon that did not require written findings to justify decisions regarding local fees.  The practical application of providing written findings would increase the duties of the Court, staff and operational costs.  She noted the $45 and $35 surcharge fees incurred October 1, 2009 to July 31, 2010 generated $69,172 for the City treasury.  That amount would increase with Bench Probation fees.  The Court had not used any of this revenue.  The City Council can redirect revenue from the Court to support other departments.  If Council approved the ordinance, Judge Turner requested all the references to “shall” and “shall not” be replaced with “may.” She urged Council not make Ashland Municipal Court the only court in the State with mandated local fees and written findings each time it reduced or waived a fee. 

Judge Turner clarified the only written record kept for violations was what the defendant plead guilty to, the sentence, fines, fees, payment plan if applicable and information that applied to the case. This documentation was not considered a finding.  Mr. Appicello agreed and added findings were notes supported by the evidence heard and should include the law, pertinent relevant facts and the conclusion.  Judge Turner reiterated the burden producing written findings would put on the Court and did not think it was not necessary for Municipal Courts to document waived administrative fees.  She confirmed a computer program contained fees but needed further information on the system and would provide that to Council later.  She explained Judges under Oregon law could set and impose court fees.  Council has the authority to set and direct fees under City Charter but it is outside of common practice.  Typically, the Judge would go to Council and request a resolution for fees as needed.  She supported the City establishing similar fees when the State removed the surcharges.

Public Hearing Open: 8:14 p.m.

Public Hearing Closed: 8:14 p.m.

Councilor Navickas/Voisin m/s to reject the proposed ordinance and resolution. DISCUSSION: Councilor Navickas was discouraged how the ordinance and resolution were initiated.  It should come from the Judge with fees she was comfortable with that allowed her the maximum discretion.  Councilor Voisin supported the motion based on the fact 126 Municipal Courts did not require written findings on waived fees.  Passing the resolution would change the Court significantly.  Councilor Silbiger explained the lack of clarity regarding having a fee schedule spoke to the need to have one.  Even the Judge had requested an additional fee for second continuances.  He commented on removing discretion and noted not having a fee schedule could work in a negative way and remove the balance of power.  The ordinance and resolution needed work but there was no reason to reject a fee schedule.  Councilor Jackson was not prepared to reject all the effort put into the proposed ordinance and resolution.  There was a need for consistency, clarity and transparency in what people can expect when they receive a citation under the Municipal Code.  Councilor Lemhouse did not think it was wise to reject it entirely or accept it fully.  The Judge has authority to impose fines, but if it is not recorded, it lacks transparency.  Councilor Navickas supported established fees but did not think it was the role of the City or Council to manage the Judge.  He thought the Judge should come back to Council within six months with an alternative ordinance.  Roll Call Vote: Councilor Voisin and Navickas, YES; Councilor Silbiger, Jackson and Lemhouse, NO. Motion failed 2-3.

Mr. Appicello clarified absent State law all Court fees, Municipal Court practices and operations were subject to City ordinances.  City Charter states Council has the authority to establish fees and charges as deemed appropriate and can regulate the Court.  Establishing fees or charges require public comment and none of the fees and charges the Court currently used has had opportunity for public comment.  One of the reasons for creating the ordinance and resolution was to receive public comment.  There was also nothing stated in Oregon law that allowed a Judge to adopt a fee or charge for any purpose.  However, there were specific statutes where the Judge could charge to recover costs. 

Staff expressed further concern the Municipal Court was currently charging fees not documented or adopted by resolution that lacked legal authority.  

Council discussed approving the ordinance with changes and addressing discretion at this meeting then have the Judge review the proposed fee schedules and make recommendations later.  Staff cautioned Council on replacing “shall” and “shall not” with “may” because some fees should not allow discretion.  Council stressed the importance of having something in writing regarding local fees.  Opposing comments noted findings or written statements on decisions have to be legally defensible, require substantial paperwork and other Municipal Courts did not require written findings.  Comments supporting written documentation noted the need for transparency over-rode the burden of paperwork. Staff clarified the language requesting written findings were taken from the State statute.   

Councilor Voisin/Lemhouse m/s to direct staff to identify areas giving the Judge discretion and provide a description of criteria in order to waive fees.  Roll Call Vote: Councilor Silbiger, Jackson and Lemhouse, YES; Councilor Voisin and Navickas, NO.  Motion passed 3-2.

PUBLIC FORUM

Michael Dawkins/646 E Main Street/Spoke regarding deer issues and noted in two years Ashland will vote on an Ashland Deer Management Plan and Commission.  In the past, there were no problems because deer were considered food and could be shot if they were on private property.  He felt deer had been sentimentalized by the community and there were two perspectives, one seeing deer as food and the other dealing with them as if they were not. 

UNFINISHED BUSINESS - None     

NEW AND MISCELLANEOUS BUSINESS - None

ORDINANCES, RESOLUTIONS AND CONTRACTS

1.   Will Council approve Second Reading of an ordinance amending Chapter 1.08 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud.

Councilor Voisin/Lemhouse m/s to approve Ordinance #3022.  DISCUSSION:  Councilor Navickas would not support the ordinance because it removed the Judge’s discretion by not allowing her to raise a fine, only lower it.  He described cases of ordinances routinely violated by individuals who were comfortable paying the penalty amount established and having authority to raise their fine would actually be a deterrent.  The Judge should have discretion to raise fines.  Roll Call Vote: Councilor Silbiger, Voisin, Lemhouse and Jackson, YES; Councilor Navickas, NO. Motion passed 4-1.

2.   Will Council approve Second Reading of an Ordinance amending Chapter 4 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud.

Councilor Lemhouse/Jackson m/s to approve Ordinance #3023. Roll Call Vote: Councilor Voisin, Lemhouse, Silbiger, Jackson and Navickas, YES. Motion passed.

3.   Will Council approve Second Reading of an ordinance amending Chapter 6 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud.

Councilor Jackson/Voisin m/s to approve Ordinance #3024. Roll Call Vote: Councilor Jackson, Lemhouse, Navickas, Voisin and Silbiger, YES. Motion passed.

4.   Will Council approve Second Reading of an ordinance amending Chapter 9 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud and noted changes to Section 2, 9.08.020 Dangerous Animals last sentence was changed to read: “Dangerous animals is a Class I violation.”  In Section 6, 9.16.020 Vicious Dogs – Control Required last sentence was changed to read: “Vicious Dogs – Control Required is a Class I violation.”

Councilor Jackson/Lemhouse m/s to approve Ordinance #3025. Roll Call Vote: Councilor Voisin, Jackson, Silbiger, Navickas and Lemhouse, YES. Motion passed.

5.   Will Council approve Second Reading of an ordinance amending Chapter 10 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud and noted changes to Section 16, 10.68.330 Camping Prohibited last sentence was changed to read: “Prohibited Camping is a Class IV violation.”

In Section 8, 10.46.020 Camping Prohibited last sentence was changed to read:  “Camping prohibited is a Class IV violation.”

Councilor Lemhouse/Jackson m/s to approve Ordinance #3026. Roll Call Vote: Councilor Lemhouse, Silbiger, Jackson, Voisin and Navickas, YES. Motion passed.

6.   Will Council approve Second Reading of an ordinance amending Chapter 11 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud.

Councilor Jackson/Lemhouse m/s to approve Ordinance #3027.  Roll Call Vote: Councilor Navickas, Voisin, Lemhouse, Jackson and Silbiger, YES. Motion passed.

7.   Will Council approve Second Reading of an ordinance amending Chapter 13 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud.

Councilor Silbiger/Voisin m/s to approve Ordinance #3028.  Roll Call Vote: Councilor Silbiger, Voisin, Jackson, Navickas and Lemhouse, YES. Motion passed.

8.   Will Council approve Second Reading of an ordinance amending Chapter 14 to add provisions concerning the classification of offenses?

City Attorney Richard Appicello read the ordinance title aloud.

Councilor Navickas/Lemhouse m/s to approve Ordinance #3029.  Roll Call Vote: Councilor Lemhouse, Silbiger, Voisin, Jackson and Navickas, YES. Motion passed.

9.   Will Council approve First Reading of an ordinance titled, "An Ordinance Creating Chapter 11.34 Relating to Storage of Personal and Recreational Vehicles and Amending AMC 11.24.020" and move the ordinance on to Second Reading?

City Attorney Richard Appicello read the ordinance title aloud and noted the following changes: “oversized vehicle” replaced “recreational vehicle,” a cross reference was updated; Class B violation changed to Class II violation and language was added that addressed using personal vehicles for storage.  Changing truck routes would involve a Public Hearing.

Councilor Lemhouse/Jackson m/s to approve first reading of the ordinance and place on agenda for second reading for August 17, 2010. Roll Call Vote: Councilor Silbiger, Voisin, Navickas, Jackson and Lemhouse, YES. Motion passed.

Staff clarified the truck route language struck from the ordinance was outdated and not enforceable because the law it referred to was repealed in 1980’s.  It was suggested the Transportation Commission review the truck route data and provide input. 

Councilor Voisin/Lemhouse m/s to ask Transportation Commission to review truck route for the City.

Voice Vote: all AYES. Motion passed.

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS

1.   Does Council wish staff to develop a formal legal opinion about whether the City Council can regulate the use of pesticides in parks?

Councilor Voisin requested clarification regarding the relationship between the Parks Commission and Council.  She wanted the City Attorney to provide written information whether Council had authority to ban pesticide that excluded individual citizens and if the Parks Commission would be responsible for upholding that decision.   

Councilor Voisin/Navickas m/s to instruct staff to write a brief statement about the authority between the Parks Commission and City Council regarding pesticides. DISCUSSION: Councilor Jackson explained during goal setting Council chose not to take on the pesticide issue, commented on the separation of respective elective bodies and was not in favor of the motion at this time.  Councilor Navickas did not think a legal opinion was necessary Council clearly had authority over pesticides.  Councilor Silbiger reiterated the City Charter stated that the Parks Commission had control and management over Parks, unless the Council decided to impose, there was no need for legal advice.  Councilor Lemhouse noted Council had just spent two hours discussing separation of power between the Court and the City and to reverse that for the Parks Commission was inconsistent.   The Parks Commission had the right to make the decision they made and it was not up to Council to approve or ratify unless there was a change to the code.  Councilor Voisin responded that goals set by Council were based on urgency and the basic Council Value of citizens’ well-being.  The Environmental Protection Agency (EPA) recently published information on the serious health risks linked to pesticides and she wanted to know where the authority regarding use of pesticides was between the City and the Parks Commission.  Councilor Navickas thought there were actions the City could take without overstepping the Parks Commission by addressing the Public Works Departments use of pesticide.  Roll Call Vote: Councilor Silbiger, Jackson, Navickas and Lemhouse, NO; Councilor Voisin, YES. Motion failed 4-1.

ORDINANCES, RESOLUTIONS AND CONTRACTS-continued

10. Will Council approve the first reading of ordinances adopting Chapter 18.53 Croman Mill and related ordinance, Ashland Comprehensive Plan, and Comprehensive Plan and Zoning Map amendments?

Abstentions, Conflicts, Exparte Contact

Councilor Silbiger declared a conflict of interest and requested Council to recuse him from the discussion.

Councilor Jackson/Lemhouse m/s to recuse Councilor Silbiger due to conflict of interest. Voice Vote: all AYES. Motion passed.

Councilor Silbiger left the meeting at 9:38 p.m.

The remaining Council and Mayor had no other conflicts of interest or Exparte contacts to declare.

Councilor Jackson explained staff’s proposal to Chapter 18.53.040 Use Regulations (B) Special Permitted Uses that would allow 15% of the gross floor area of the building for collective special permitted uses such as ancillary purposes. 

Councilor Jackson/Lemhouse m/s to direct staff to modify Chapter 18.53.040 Use Regulations (B) Special Permitted Uses with staff’s suggestion of 15% for Special Permitted Uses.  DISCUSSION:  Councilor Navickas commented the Planning Commission went through significant deliberation regarding Special Permitted Uses and decided to limit them.  He agreed with the Planning Commissions decision but would compromise and support the motion.  Roll Call Vote: Councilor Voisin, Jackson, Lemhouse and Navickas, YES. Motion passed.

Councilor Jackson noted the Dimensional Standards Table for Height in Chapter 18.53.050 Dimensional Regulations and wanted to remove the height bonus incentive.  Using LEED Standards was a disincentive for an area targeted for high-density employment.  Applicants having to demonstrate job density by making an additional investment of a more complex regulatory program would be a deterrent for builders.  There were alternative ways of meeting energy and water efficiency not yet explored. 

Councilor Jackson/Lemhouse m/s to delete the Height Bonus Incentive from the Site Design Standards and Chapter 18.53.050 related to LEED. DISCUSSION: Councilor Navickas explained one of the controversial issues regarding the Croman Mill project was the City not mandating enough green requirements. The height limit was also controversial.  He did not think it was a disincentive and would not support the motion.  Councilor Jackson thought meeting LEED Standards would be easy but it would not achieve higher water and energy efficiency. Applying the incentive to a part of town the City wanted to see developed was a disincentive.  Councilor Lemhouse commented being energy and water efficient was financially sound and most businesses would build that way without an incentive.  He stressed the need to create an environment that provided employment and economic development and did not want to stunt that effort with green standards.  Councilor Navickas responded removing the incentive for five-story building was a deal breaker.  Mayor Stromberg was not enthusiastic about LEED Standards but supported them as an incentive and added there had been erosion on requirements regarding the project from the start.

Roll Call Vote:  Councilor Voisin and Navickas, NO; Councilor Jackson and Lemhouse, YES. Mayor Stromberg broke the tie with a NO vote. Motion failed 2-3.

City Attorney Richard Appicello read the ordinance title aloud.  Staff clarified changes were reflected in the Council Communication and would be read at Second Reading.

Councilor Jackson/Navickas m/s to approve First Reading of Chapter 18.53 as amended by Council discussion and move to Second Reading at the next meeting.  DISCUSSION: Councilor Voisin would not support the motion because the City had the Downtown Plan and the Rail Road District Plan that were more important for building diversity in the economy.  There had not been a formal commitment from Plexis Healthcare Systems who was the lead driver in the Croman Mill Site plan.  The project competed with downtown, the Rail Road District and other centers and did not address housing. 

Councilor Navickas acknowledged the project was controversial and the effort put forward to balance the plan. He agreed with Councilor Voisin regarding the Rail Road District and the downtown area but the Croman Mill property was within city limits and currently had development pressures.  The plan was a good decision and a step towards providing jobs that would affect the community for the better in the long term. Councilor Lemhouse noted the compromise that had gone into the project and although it was not perfect, thought not acting was irresponsible.  It was the duty of Council to create an economic environment where community will flourish.  Councilor Jackson commented the plan was not ideal and competed with the downtown area because the City was applying commercial design standards to a remote part of town.  However, doing nothing was not good decision-making.  A huge amount of effort and input went into the plan’s development, it was a start and housing would follow. 

Councilor Voisin responded she was being responsible in her vote by pointing out there were two other plans the City should be implementing.  Instead, the City was moving forward on a project that will take 10-15 years to develop.  This would not solve the problem the recession had created and Council should exercise a different focus.  Roll Call Vote: Councilor Voisin, NO; Councilor Jackson, Lemhouse and Navickas, YES. Motion passed 3-1.

City Attorney Richard Appicello read the ordinance title aloud. 

Councilor Jackson/Lemhouse m/s to approve First Reading of an Ordinance amending amc 18.08.190, 18.08.341, 18.08.342, 18.08.343, 18.08.845, 18.12.020, 18.61.042, 18.68.020, 18.68.050, 18.72.030, 18.72.110, 18.72.120, 18.72.140, 18.72.180, 18.84.100, 18.88.070, 18.88.080, 18.92.020, 18.96.090, 18.104.020, 18.106.030, 18.108.017 of the Ashland Municipal Code and Land Use Ordinance for consistency with new Chapter 18.53 Croman Mill and move to Second Reading at the next meeting.  DISCUSSION: Councilor Jackson clarified the ordinance brought consistency to the code to incorporate the plan.  Roll Call Vote: Councilor Voisin, NO; Councilor Jackson, Lemhouse and Navickas, YES. Motion passed 3-1.

City Attorney Richard Appicello read the ordinance title aloud. 

Councilor Jackson/Lemhouse m/s to approve First Reading of an Ordinance amending the City of Ashland Comprehensive Plan to change the land use map designation of approximately 99 acres of land within the City of Ashland Urban Growth Boundary from Industrial, Employment, Single-Family Residential and Rural Residential (Jackson County) to the newly created Croman Mill Plan Designation; amending the City of Ashland Zoning and Land Use Control Maps to rezone approximately 78 acres of land within the City Limits from M-1, E-1, and R-1-5 Districts to the newly created Croman Mill Zone; and imposing five Croman Mill Overlay Districts on the Croman mill zoned properties, including Compatible Industrial, CM-CI, Office Employment, CM-OE, Mixed Use, CM-MU, Open Space, CM-OS, Neighborhood Commercial Center, CM-NC as amended by Council and move to Second Reading at the next meeting.

Roll Call Vote: Councilor Voisin, NO; Councilor Jackson, Lemhouse and Navickas, YES. Motion passed 3-1.

Councilor Jackson/Lemhouse m/s to continue to Second Reading of Ordinance #1 amending the City of Ashland Comprehensive Plan to add a new Croman Mill District designation to Chapter 2 Inter Definitions to add the Croman Mill Plan designation of the adopted land use map legend and adopt a Croman Mill Site redevelopment plan and economic opportunities analysis as support documents to the City of Ashland Comprehensive Plan to the next meeting.

Voice Vote: all AYES. Motion passed.

Councilor Jackson/Navickas m/s to continue Ordinance #3 amending 18.72.080 (C) Site Design Standards to add a new site design and use standards for the Croman Mill District to the next meeting for Second Reading.  Voice Vote: all AYES. Motion passed.

Councilor Navickas/Lemhouse m/s to continue Ordinance #6 amending AMC Chapter 15 to create LEED Certified Building Priority to the next meeting for Second Reading.  Voice Vote: all AYES. Motion passed.

ADJOURNMENT

Meeting was adjourned at 10:06 p.m.

Barbara Christensen, City Recorder  
John Stromberg, Mayor