MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
April 4, 2000
Civic Center Council Chambers, 1175 E. Main Street
PLEDGE OF ALLEGIANCE
Mayor Shaw called the meeting to order at 7:00 p.m., Civic Center Council Chambers.
Councilors Laws, Reid, Hanson, Wheeldon and Fine were present. Councilor Hauck was absent.
APPROVAL OF MINUTES
The minutes of the regular meeting of March 21, 2000 were approved as presented.
SPECIAL PRESENTATIONS & AWARDS
1. Mayor's Proclamation of April 9 - 15, 2000 as "Volunteer Recognition Week."
Mayor Shaw read the proclamation and reminded citizens of the City Open House on April 13th in the Hillah Temple.
2. Mayor's Proclamation of April 2 - 8, 2000 as "Arbor Week in Ashland."
Mayor Shaw read the proclamation in its entirety.
3. Mayor's Announcement of "Tree of the Year" for the year 2000.
Conservation Commission chairperson Rich Whitall and staff liaison Robbin Pearce introduced Mike Melton from the Oregon Department of Forestry. Melton recognized the City of Ashland for its past 15 years of participation in "TreeCity, USA" and presented the city with a plaque, banner and flag.
Pearce shared with council the "stuffing of the ballot box" method that was utilized by an elementary classroom. It was explained that one of the nominees for "Tree of the Year" is a tree that is slated for removal due to the library expansion project. Whitall explained that a proposed tree protection ordinance is being drafted.
Mayor Shaw explained that female Gingko trees are somewhat rare due to their nuisance qualities. She suggested that this is an opportunity to celebrate the tree and announced that the Gingko tree, located outside the city library, is the Tree of the Year. Shaw gave brief background information on the Gingko tree.
Charles Ryberg/373 Vista St./Spoke in favor of removing the Gingko tree as the tree presents serious health hazards as the fruits contain the same toxin found in poison oak which can trigger severe asthma attacks, in addition to the offensive odor of the fruits.
Carlos Reichenshammer/600 Emigrant Cr. Rd./President of the Homebuilders Association of Jackson County, spoke regarding removal of trees and offered to move the tree at his own expense in order to save the tree. He recognized that there is no guarantee that the tree would survive, but stated that he would like the opportunity to try.
Shaw explained that in the early stages of the library project it was reported by a professional arborist that the expense to move and preserve the tree was prohibitive due to the need for lengthy pruning of the root ball. Suggested that the minimum cost would be $50,000 plus a three year delay.
Fine stated that this was a win-win situation. Shaw noted that this would mean that the wood couldn't cure for milling on site to be part of the reception desk.
Wheeldon asked if there has been a second opinion. Shaw explained that certified arborists have been contacted, as they would have experience and credentials to move a tree this large. Stated that if there is no cost and no risk to the taxpayers, she would not be opposed to this offer.
Reid clarified that the intent to replace the tree would be with a male tree, to avoid health risks for those with asthma. Stated she had no problem with moving this tree.
Dennis Donahue/54 Gresham St./Neighboring property owner, noted that he suffers from asthma and has never had a problem with this tree. Voiced concern with the number of other trees and shrubbery that are scheduled to be removed along the alley due to the library expansion, and with the loss of parking spaces.
Shaw explained that the amount of parking spaces that are in the library plan are exactly the number of spaces that the voters voted on with the bond measure. Discussed the history of the trees at this site. Noted that a request has been made to ODOT to place parking on Siskiyou, as that is how it was historically situated.
Jim Lewis/640 A St./Spoke in favor of preserving the Gingko tree, suggesting that it deserves more. Stated that there may be more negatives to the plan than just this tree and that the tree deserves to survive.
Barbara Ryberg/373 Vista St./Spoke as president of Friends of the Ashland Public Library, and noted the percentage of voters that supported the library expansion plan in the November election. She read from the voters pamphlet the wording that was used in the bond measure. She stated that the public had to be aware that trees would need to be sacrificed due to the library expansion and that this discussion did take place during the public forums. Ryberg also explained that the Gingko tree is damaged according to an examination by a professional arborist, and would require three years of root pruning to prepare it for relocation. She noted her personal embarrassment that a group would attempt an absurd end-run around the wishes of the voters of Ashland.
1. Minutes of Boards, Commissions and Committees.
2. Confirmation of Mayor's appointment of Jacqueline Leighton to Historic Commission for a term to expire April 30, 2002.
Councilor Reid requested that the following be added to page 2 of the study session minutes of March 22, 2000: "Public Works Director Paula Brown suggested and council agreed that the data should be challenged."
Councilors Fine/Laws m/s to approve the Consent Agenda. Voice Vote: All AYES. Motion passed.
PUBLIC HEARINGS None
Eric Navickas/711 Faith Av./Distributed flyer to council from the James Montgomery study regarding the Water Resources Management Plan and Facility Study. Discussed the information found in this study, and requested that council make an official comment on the Draft Environmental Impact Statement (DEIS) and that council set up an outside meeting with stakeholders and make a public statement relative to the DEIS.
Councilors Wheeldon/Reid m/s to place this item on the agenda. Voice Vote: All AYES. Motion passed.
Councilor Reid suggested that a public forum had already occurred on this issue. Navickas requested that the city council simply meet with the players involved here and make an official statement. Shaw suggested that council had issued a statement in the previous year, and questioned whether Navickas would be opposed to any expansion at Ski Ashland. Navickas replied that the current facility is adequate and has no need for expansion. Shaw expressed her concern that the two parties are not participating in the same discussion, and suggested that until the two sides can meet for discussion with room on both sides for compromise it is a matter best suited to be decided in court.
Fine concurred that as long as the opponents to expansion take an absolutist position, there is no room for mediation.
Navickas suggested that it is completely inappropriate for the city not to comment publicly on a major development occurring within the watershed.
Laws stated his belief that Navickas' question is a legitimate one, but also recognized that the council is not in a position to answer this question. Laws expressed his disapproval of the mayor and council questioning someone who is speaking in a Public Forum.
Wheeldon clarified for Navickas that the council does not perceive that there is sufficient common ground for the council to attempt to mediate a compromise.
Hanson suggested that the DEIS is a draft, and he does not believe that anyone on the council is willing to take a public stance on a draft document.
Thomas Heumann/585 Orchard St./Spoke on behalf of the Traffic Safety Committee requesting $1,000 funding for a program called "Not MY Kid!" The funding would be for start-up costs and the presentation of forums for new drivers and their parents. He explained that the project was developed by ParentLine of Portland, and the purpose is to reduce crashes resulting from teen drivers under the influence of alcohol or their own immaturity. Noted that the first forum is scheduled for May 17.
Council liaison Laws reported that the Traffic Safety Commission unanimously supports the program and that the commission has spent the dollars they have budgeted for the current fiscal year.
Councilors Fine/Reid m/s to allocate $1000 from contingency funds for the project as described. Voice vote: All AYES. Motion passed.
Colin Swales/143 8th St./Voiced his pleasure that the council is entertaining a proposed tree protection ordinance, and suggested that the city needs to serve as an example when it comes to tree preservation. Stated that based on the Library project's landscaping plan, it is almost impossible to determine the number of trees that will be cut. Noted that these plans call for the removal of "approximately 22" trees, and questioned if voters truly understood the impact of the proposed expansion. Asked that the council direct staff to provide plans that will clearly show which trees are to be removed. Expressed his concern that there are three projects coming up with the City as applicant or co-applicant (the Library, the Fire Station, and the OSF Theater) and none of them include plans showing which trees are to be removed. Requested that the Tree Commission and the public be informed of what trees are to be removed at the pre-application stage. Suggested that the trees that are going to be removed are tagged. Noted that the Gingko tree has been in place for nearly 100 years, and that it pre-dates the library by 12 years. Emphasized that the Gingko is good health, and specimens of this species can live for 1000 years.
Shaw thanked Swales for all of his efforts to recognize and protect this tree.
Andrew Bangsberg/880 Neil Cr. Rd./Thanked the council for the opportunity they have given him in certifying his taxi service. Noted the reduction in DUI's since the service was put in place.
Elias DeChristo/247 Granite St./Provided council with an update on the emerging eco-forestry/perma-culture/community gardening programs in the city. City Siskiyou Perma-culture Resource Group, Siskiyou Tilth Regional Organic Farmers, and the Ashland Community Garden Network are working together to bring new programs to Ashland.
UNFINISHED BUSINESS None
NEW AND MISCELLANEOUS BUSINESS
1. Council meeting Look Ahead.
Item presented for information only. Freeman noted he welcomed council questions on the Look Ahead.
Wheeldon questioned if there would be a study session on the Economic Development element of the comprehensive plan. Freeman explained that he understood that the council would prefer a draft document be prepared by staff prior to this study session, and stated that with staff workloads in Community Development this was likely a 3-4 month project. Stated that he would add it as a future item.
Laws suggested that with the budget process, the off-site wastewater treatment issue, and the Siskiyou Boulevard jurisdictional exchange to address, it might be best to postpone this a bit. Shaw suggested that this item continue on its current course rather than stopping completely.
Reid questioned item #14 on the Look Ahead. Suggested that it might be optimistic to get together on the 18th with a presentation on this issue. Wanderscheid stated his understanding was that Risa Buck would be meeting with council on this item. Reid suggested that Buck meet with Russ Chapman, John McLaughlin and Wanderscheid prior to coming before council and stated that this probably could not realistically occur by the 18th. Suggested that this be put into "Future Items" and that a meeting of those mentioned occur within the next month.
2. A motion authorizing the City Administrator to sign the BPA/Ashland Solar Contract.
Director of Administrative Services Dick Wanderscheid explained that BPA has agreed to invest up to $100,000 in solar generation in Ashland as part of the Ashland Solar Pioneer Program. The contract provides an up-front payment for 20 years of solar output from the BPA system on the roof of the Council Chambers. Explained that Bonneville would pay a proportional share and the power generated will be metered separately and fed into their green power programs.
Wanderscheid confirmed that this up front payment represents a significant subsidy of the Ashland Solar Pioneer Program by BPA. Clarified that this will pay for Bonneville's entire 10kW system, which shouldn't cost $100,000.
Wanderscheid noted that he has copies of the contract for council to review if desired, and provided a brief background for consultant Tom Starrs who had previously made a presentation to council and who helped to draft this contract along with BPA attorneys and the City Attorney.
Councilors Reid/Wheeldon m/s to approve authorization to sign BPA/Ashland Solar Contract. Voice vote: All AYES. Motion passed.
3. Legal Alternatives to DEQ Requirements for Water Quality Standards.
City Attorney Paul Nolte presented alternatives to the council for challenging the water quality standards issue. Suggested that the only judicial challenge that could be done directly would be to appeal the rule to the court of appeals, and the only reason the court would rule in favor of the city would be if the city showed that DEQ had exceeded its authority or that the rule somehow violates the US or Oregon constitutions. Stated that in his opinion, there was little likelihood that the city could show either of these, and a direct judicial appeal would not succeed. Clarified that it would take some time for this to be resolved in court, and that the DEQ could impose fines for being in violation of the DEQ's rule during that time.
Noted that the city could also attempt an administrative challenge by petitioning DEQ to amend the rule. Emphasized that this would need to be done scientifically, and that the city would have to show that a different methodology would be in compliance with the Clean Water Act. Emphasized that this option would require DEQ's cooperation, and that there would be no option to appeal their decision to a court. Also stated that the city could request that the NPDES permit and the mutual agreement and order (MAO) be amended, and this decision would be able to be appealed under judicial review. Again stated that the city would need to show that there is a way to meet the requirement under federal and state laws for clean water.
Emphasized that the city should not violate the permit as a way to challenge the rule as penalties are stiff and willful violation subjects the city to criminal penalties. Noted that these penalties could be in the form of individual fines or criminal penalties to the councilors. Suggested that the same precaution applies to violating the MAO, although the fines here would be limited to those set forth in the MAO itself.
Reid noted that Nolte had provided a history of fines from the DEQ, noting that they have been in the $100-300/day range. Nolte emphasized that the amount of the fine could vary depending on whether good faith efforts were being made to comply with DEQ rules.
Reid noted that the Public Works Director had indicated that challenging the data would be appropriate. Nolte agreed that a petition to amend the rule would be the best alternative to challenging the data. Nolte explained that he used the data that DEQ has relied upon to reach his opinion, and stated that there is not sufficient scientific evidence to challenge their data in his opinion. Reid feels that the city may have the Oregon Department of Fish and Wildlife (ODFW) on its side. Suggested that we use another state agency's goals to benefit the city's position.
Nolte emphasized that in order to challenge the rule, the city would have to provide scientific proof that the data DEQ is using is incorrect.
Laws stated that the best approach is not a legal challenge, but rather to get DEQ to run their process again based on five years of consistently gathered data. Suggested that the city hire someone to run the new data through DEQ's old model to see if there is any room for discussion.
Brown explained that the question here is how to get the DEQ to look at new data. Suggested that there does need to be some questioning of the phosphate standard, but that it may be somewhat time consuming to get the parties involved together for discussion on this matter. Stated that she does not know if DEQ will allow more time for this to occur. Brown stated that she will try to get further information to the council by the 18th of April relative to challenging the DEQ's data.
Laws clarified that if it were possible to show DEQ that .08 is too low, it will make it easier for the city to pursue other options. Using data on more current phosphate levels for modeling could change the level requirements arrived at by their model.
Shaw voiced her recollection of the prior meeting with the DEQ regarding phosphate levels. Voiced her concern that DEQ would require data from above the agricultural run-off sources in order to consider changing their standards. Emphasized that none of the data gathered over the past five years has been above the agricultural run-off.
Freeman reminded the council that in initial conversations with local DEQ staff, it was indicated that the RVCOG data was insufficient and that DEQ would require an 18 month testing process. Noted that they had suggested that it would cost hundreds of thousands of dollars to conduct these tests.
Nolte clarified that the city does not have a remedy if the DEQ is unwilling to change their rules. Emphasized that he has not discussed this with DEQ, but he believes that they will want data from the city if they are going to consider changing rules.
Nolte clarified that the Tualatin basin has spent close to $1 million in a lawsuit with DEQ challenging the imposition of phosphate standards on storm water run-off, and the result has been that the methodology for measurement has been changed.
Reid suggested taking new plant standards to DEQ as these differ from what was being put into the creek during their previous modeling. Stated that the city should look at the NMFS ruling, the Endangered Species/Salmon Act, and the ODFW goals. Emphasized her belief that the city could have some state support from ODFW for putting water back into the creek, as having water in the creek is the ODFW's highest goal. Suggested that changing the phosphate standard might well prove to be better for fish in the long run.
Fine feels that it is not practical to think that DEQ will allow the city to challenge their standards at this stage in the process. Suggested that proceeding as has been discussed is acceptable, but stated that Brown needs to focus her efforts on finding the best alternative for handling the effluent while meeting the current DEQ requirements.
Reid feels that it is important to spend taxpayer monies on the best solution to the community over the long term, even if that is counter to what DEQ is asking for at this point. Suggested that spending staff time to meet the current standard may be the wrong thing to do.
Shaw explained that she has spoken with ODFW, which wants more water in the creeks during the time that the irrigation systems are shut down. Emphasized that the issue for ODFW is the time that TID is turned off. Reid stated that the removal of orchards from agricultural production in Jackson County creates concerns even during the irrigation season.
Laws noted he could still approve of a spray irrigation option if the health concerns were adequately addressed, and stated that he feels that the BCVSA option is still open because the city has water rights behind Emigrant Dam to use during low flow periods.
Brown explained that the time frame involved here is two months. Read from the DEQ letter, which called for meeting Bear Creek TMDL's prior to summer of 2002. Agreed that presenting DEQ with the RVCOG data is the first step in looking at phosphates in general, but emphasized that this does not appear to be a solution within the two month deadline. Stated that she can take that step, and speak to DEQ, and provide additional information on the phosphorous issue to council on April 18th. Noted that she would also look at the background for the TMDL development to provide a better understanding of the modeling. Emphasized that DEQ is looking at source and background phosphorous levels.
Laws concurred with Fine that staff should work to meet requirements within two months, and suggested that the city should hire a consultant to review the original DEQ model and to look at the RVCOG data in light of that model. Discussed whether this could be done without competitive bidding.
Brown confirmed for Reid that she will bring back information regarding the Endangered Species Act.
Reid feels that WaterWatch is a good resource relative to the NMFS ruling, and noted their suggestion of taking water from the creek and putting it back in. Suggested that she would prefer to avoid this. Also reminded the council to continue looking at electro-coagulation as an option.
Brown highlighted the issues raised in the DEQ letter, and the need for response by June 3rd. Noted a letter from Carollo Engineers regarding bacterial standards comparisons. Stated that the wetlands project consultant will have information ready by April 18th, as they are still working on a solution. Brown stated that staff will be meeting with Carollo on April 17.
Paul Kay/1234 Strawberry Ln./Spoke regarding the social aspects of this issue, and invited council to set an example by complying and collaborating with DEQ regulations. Invited council to consider an apology to DEQ rather than challenging their standards. Commented on the unkind words directed at DEQ at a previous meeting. Explained that he sees the DEQ as having a responsibility in helping the city to implement the Clean Water Act. Emphasized that the DEQ has responsibility for guidance, implementation and enforcement. Cited the Federal Water Pollution Control Act of 1972 and the Clean Water Act of 1977, which made it a natural goal to restore and maintain the chemical, physical, and biological integrity of the nation's waterways. Suggested that contesting a standard 23 years after the clean water act was passed may not be the right thing to do. Questioned the message Ashland is sending to its downstream neighbors. Noted he is working to come up with an urban component to the water quality management plan with the Bear Creek Watershed Council to work in conjunction with the agricultural and forest elements. Suggested that .08 is too high a standard, as background levels of phosphorous in the creek will be reduced. Emphasized that Bear Creek is a priority stream, and noted his proposal to use electro-coagulation as a treatment method. Noted that one vendor has offered to contribute a 250-gallon per minute machine to be certified by the State of California as an environmental technology, on the understanding that the city will purchase the machine if it is effective in phosphorous removal. Stated that it would involve a cost of about $200,000 for testing, and that he would contribute up to $10,000 for the certification by the State of California. Asked for council direction to staff if they are interested in pursuing this.
Kay stated for Fine that if the city is moving ahead with implementation of the spray irrigation plan, DEQ would be satisfied, and this would give the city time to look at the electro-coagulation option prior to construction on the spray irrigation.
Reid suggested that expert engineers who have had direct experience in this type of project contact staff directly.
Kay explained that the individuals he has in mind are interested in coming to present information, but that they would need a formal invitation to do so. He also offered to provide information to the Public Works Director for staff and council consideration.
ORDINANCES, RESOLUTIONS AND CONTRACTS
1. Reading by title only of "A Resolution Establishing Fees for Taxicab and Special Vehicle Operations and Repealing Resolution 94-35."
Councilors Fine/Hanson m/s to approve Resolution #2000-08. Discussion: Nolte clarified that the fee for inspections has been eliminated, and the inspections are not occurring. Roll call vote: Laws, Reid, Hanson, Wheeldon, and Fine, YES. Motion passed.
OTHER BUSINESS FROM COUNCIL MEMBERS
Freeman questioned how council wanted to handle the fact that the first meeting in July falls on the Fourth of July. After brief discussion, it was determined that the council would look at the agenda closer to the meeting to see if there was enough business to merit a different meeting date.
Shaw noted that she was unable to attend the transportation neighborhood meetings due to other meetings she had scheduled. Laws noted that some excellent ideas were raised at the meeting.
Shaw noted that the City Recorder will be conducting a class for those interested in running for city office on Thursday, April 13th, following the Open House, at 7:00 p.m. in the Hillah Temple.
Meeting was adjourned at 9:50 p.m.
Submitted by Barbara Christensen, City Recorder