Agendas and Minutes

City Council (View All)

Regular Meeting

Minutes
Tuesday, December 15, 2009

 MINUTES FOR THE REGULAR MEETING

ASHLAND CITY COUNCIL

December 15, 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 provided statistics on how children with family deployed in the Infantry Battalion of the 41st Brigade Combat Team of the Oregon National Guard (1/186) were handling the separation and readjustment and noted that it was particularly hard for the girls in the families dealing with relatives returning home.

 

He explained that an agenda item regarding the Ashland Forest Resiliency (AFR) update had been added to end of the agenda.

 

SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS?

The minutes of the Study Session of November 30, 2009, Executive Session of December 1, 2009 and Regular Council of December 1, 2009 were approved as presented.

 

SPECIAL PRESENTATIONS & AWARDS

Mayor Stromberg read a speech from Human Resource Assistant Sonja Ackerman noting highlights of Director of Electric Utilities Dick Wanderscheid’s life and acknowledging his 30 years of service to the City and presented him with a retirement plaque.  Mr. Wanderscheid made a brief speech expressing his appreciation working with the City.

 

Mayor Stromberg announced vacancies on the Tree Commission, Conservation Commission, Housing Commission, Forest Lands Commission and Planning Commission.  

 

CONSENT AGENDA  

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

2.   Does Council wish to approve a Liquor License Application from Robert Dreiszus dba Beau Club/Geppetto's at 347 E Main Street?

3.   Does Council wish to approve a Liquor License Application from Jeremy Vidalo dba Loft "American Brasserie & Bar" at 18 Calle Guanajuato?

4.   Will Council approve an exemption to the Ashland Sign Code as requested by the Oregon Shakespeare Festival to install a banner across the Pioneer Street right-of-way between February and October of 2010 in celebration of the 75th anniversary of the festival?

 

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

 

PUBLIC HEARINGS

1.      Will Council adopt a resolution amending Table "B" of Resolution 2009-18 Miscellaneous Fees for Service Where Necessary?

Public Works Director Mike Faught and Associate Engineer Pieter Smeenk provided the staff report on the proposed fee resolution and a presentation that included the following:

 

 

Will the Council adopt a Resolution Amending Table “B” of Resolution 2009-18 Miscellaneous Fees to add fees for the following:

·         Sidewalk Dining

·         Functional Items

·         Newspaper Racks

·         Right-of-Way Closures

Background

·         July 21, 2009 Council adoption of Ordinances 2990 and 2989

·         October 20, 2009 Council adopted of Resolution 2009-29

Proposed Fees

·         Sidewalk Dining (min 50 sq ft):  $4.00 per square foot

·         Functional Items:  $58.00 per occurrence

·         Publication Box:  $25.00 per occurrence

Sidewalk and Parking ROW fees

·         Sidewalk ROW Closure > 72 hrs:  $58.00 per occurrence

·         Sidewalk ROW Closure < 72 hrs:  $15.00 per occurrence

·         Parking Space ROW Closure > 72 hrs:  $58.00 per occurrence

·         Parking Space ROW Closure < 72 hrs:  $15.00 per occurrence 

 

Mr. Smeenk explained a lottery would initially determine sections for the publications in the newspaper racks then rotate positions quarterly. 

 

Public Hearing Open: 7:25 p.m.

Public Hearing Closed: 7:25 p.m.

 

Councilor Silbiger/Chapman m/s to approve Resolution #2009-37.  Roll Call Vote: Councilor Voisin, Navickas, Lemhouse, Jackson, Silbiger and Chapman, YES. Motion passed.

 

PUBLIC FORUM

Julie Norman/596 Helman Street/Spoke on how the Park Commissioner’s Goal on the evaluation of pesticide use.  Topics raised in the discussion of this Goal included the impact of pesticide run-off into the creeks and soils and the most widely used toxic pesticide.  She commented on new statewide law mandating schools reduce or eliminate pesticide use.  Round Up is the most commonly used pesticide, considered less toxic and manufactured in the U.S. and China. She went on to explain working conditions and lack of environmental safety controls in China.

 

Angie Thusius/897 Beach Street/Spoke for herself and on behalf of “Grandmothers in Green” and thought Council should include the reduction or elimination of pesticides in their Statement of Values under Public Safety or Environment.  The state law reducing and eliminating pesticide use in schools was due to several schools cost effectively decreasing pesticide usage up to 90%.  She noted additional items the Park Commission was working on as how other cities reduced pesticide usage and standards changing “proof of harm,” to “proof of no harm” to ensure manufacturers guaranteed zero level of harm in the chemicals they sell.

   

Tom Marr/955 N Mountain Avenue/Stated that his profession was Forestry and Forest Health.  He addressed the City goals pertaining to water and suggested clarifying one goal to read, “Protect and enhance the native, domestic water supply.”  He explained some of the benefits from protecting and enhancing the water supply and encouraged the City to adopt a pesticide free goal.

 

UNFINISHED BUSINESS

1.   Will Council approve second reading of ordinances amending the Ashland Land Use Ordinance (ALUO) to include Chapter 18.63 Water Resources Protection Zones and make related amendments of the ALUO and Comprehensive Plan regarding the protection of wetlands, streams and riparian corridors, and approve the findings of fact to accompany the amendments?

Mayor Stromberg explained that the public hearing on this item was closed and public testimony would not be taken.  Councilor Silbiger declared a potential conflict of interest regarding a class exemption but thought he could make an unbiased decision regarding the topic. 

 

Community Development Director Bill Molnar and Planning Manager Maria Harris presented the staff report.  Ms. Harris reviewed the changes and the outstanding item regarding Exempting the Replacement of Non-residential Nonconforming Structures.  Current text limited the exemption to Historic Districts only.  The potential revision would expand the exemption citywide and would affect eight buildings.

 

Staff clarified that the exemption would allow replacing a structure under any circumstances as long as it was in the same footprint area.  Replacing a structure under Limited Activity was a Type 1 Planning Action, required Administrative review, an application fee of $917, a land use notice of all the properties within 200 feet and possibly a public hearing through the Planning Commission.  Redevelopment would not be subject to special approval if building occurred outside the protection zone and would require a Water Resource Protection Zone Reduction if it were.  Historic buildings in the downtown area would not be exempt from a Historic Commission review of the reconstruction, only from the Water Protection Zone ordinance.  If a new non-residential building was developed, it would trigger a site review and the City would evaluate the exterior.

 

Councilor Jackson/Lemhouse m/s revises exempting 18.63.060.3(d) Replacement of Nonconforming Structures in Non-Residential Zoning Districts as proposed in the Council Communication.

DISCUSSION: Councilor Jackson commented a larger lot interested in redeveloping would require an extensive planning application with the opportunity to restore the riparian areas and still have the ability to replace the building.  Councilor Lemhouse understood the significance of the historic buildings downtown but thought the citywide exemption was a fair compromise.  Councilor Navickas did not see a strong reason for the exemption and noted there were other avenues to replace buildings that exist within variances in the code.  Councilor Silbiger thought any structure downtown or other wise impacted should look at ways to remove themselves as much as possible from the riparian zone.  It was a matter of fairness to property owners and tenants on how the regulation is applied.  Mayor Stromberg questioned how having the owner build outside the riparian area applied to the downtown Historic District.  Councilor Navickas responded downtown properties already met the criteria for a variance if they could not build on the site without affecting the riparian area.  Councilor Jackson added any rebuilding of a structure in the riparian area was most likely in a flood plain and not exempt from that, this was a case of finding the right balance. Councilor Navickas opposed the motion because it contradicted the intent of the riparian ordinance.  Roll Call Vote: Councilor Lemhouse and Silbiger, YES; Councilor Chapman, Navickas, Jackson and Voisin, NO. Motion failed 4-2.

 

City Attorney Richard Appicello read the ordinance title aloud and noted typographical corrections to the map.

 

Councilor Jackson/Navickas m/s to approve Ordinance #2999 amending the Comprehensive Plan with maps and other attachments.  Roll Call Vote: Councilor Lemhouse, Silbiger, Chapman, Navickas, Jackson and Voisin, YES. Motion passed.

 

Mr. Appicello read changes to the ordinance that included adding language to the sentence: “Fences limited to open wire, electric and similar fence that will not collect debris or obstruct flood waters,” adding, “but not including wire mesh or chain link fencing…” to  18.63.060(B) 3 Fences and 18.63.060 (C) 2 Fences.

Another change was 18.63.070(B) 3 Public Facility Paving and Reconstruction:  “Paving and reconstruction of public parking areas and walkways if additional surface area in the Stream Bank Protection Zone is not disturbed, the public facilities are deemed necessary to maintain a functional system and upon finding that no other reasonable alternate location outside the Water Resource Protection Zone exit.”  Mr. Appicello noted a typographical error then read the ordinance title aloud.

 

Councilor Voisin/Jackson m/s to approve Ordinance #3000 adding new Chapter 18.63 with changes as read and corrections.   DISCUSSION:  Councilor Navickas complimented the Council on the work done and the spirit of compromise demonstrated as they worked through the issues.  Council Lemhouse agreed and would vote in favor of the overall changes but was disappointed the citywide exemption was not accepted.  Roll Call Vote: Councilor Lemhouse, Silbiger, Navickas, Jackson and Voisin, YES; Councilor Chapman, NO. Motion passed 5-1.

 

Mr. Appicello read the third ordinance title aloud and noted typographical errors in the codification section.

 

Councilor Navickas/Lemhouse m/s to approve Ordinance #2998 adopt ordinance amending Chapter 18.62 and 18.108 with changes as read and corrections.  Roll Call Vote: Councilor Lemhouse, Silbiger, Chapman, Navickas, Jackson and Voisin, YES. Motion passed.

 

Councilor Jackson/Navickas m/s to approve Findings of Fact & Conclusions of law for all three ordinances. Roll Call Vote: Councilor Lemhouse, Silbiger, Navickas, Jackson and Voisin, YES; Councilor Chapman, NO. Motion passed. 5-1.

 

NEW AND MISCELLANEOUS BUSINESS

1.   Shall the Mayor and Council approve appointments for three positions open on the Citizen Budget Committee with one term ending December 31, 2011 and two terms ending December 31, 2012?

Mayor Stromberg explained the ballot process and Council shared the criteria they used for selecting members and expressed appreciation for the applicant’s expertise.

 

Councilor Silbiger/Navickas m/s to appoint Dee Anne Everson to the Citizen Budget Committee with term ending December 31, 2012. Voice Vote: all AYES. Motion passed.

 

Councilor Silbiger/Chapman m/s to appoint David Runkel with term ending December 31, 2012 and Keith Baldwin with a term ending December 31, 2011. Voice Vote: all AYES. Motion passed.

 

2.   Does Council have feedback on Staff's Stage 1 Water Curtailment debriefing and will Council approve Staff's request to amend the current water curtailment ordinance to address issues identified during curtailment in 2009?

Public Works Director Mike Faught, Associate Engineer Pieter Smeenk and Water Conservationist Robbin Pearce presented the staff report that included the following overview and recommendations for the future:

·         Water Demand Exceeds Water Supply

·         Progress Report

·         Curtailment Termination

·         Reeder Reservoir Drawdown Graph

·         What Went Well

·         What Went Poorly

·         Operational and Financial Impacts

·         Recommended Plan of Action

·         When to add Talent Irrigation Ditch (TID) Water

·         Staff’s Recommended Strategy

·         Develop Water Curtailment and Use of TID Water SOPP’s

·         Reduce WTP Overtime When Using TID Water

·         TID System Upgrades and Automation

·         Amend Water Curtailment Code

·         Section 14.06.010A Exhibits

·         Section 14.06.090

 

Ms. Pearce explained Water Budgeting was based on impermeable surface, efficient irrigation and type of plant material that could adjust water amounts to accommodate vegetable gardens that require more water. This was an issue during the water curtailment because property owners were only allotted water amounts to that suit landscapes and not vegetable gardens.         

 

Ron Roth/6950 Old 99 South/Supported using TID water as part of augmenting the existing water supply.  TID water came from Howard Prairie Lake with an elevation over 5,000 feet and to his knowledge has not had algae problems where Lost Creek Lake elevation at 1800 feet has issues with algae blooms.  Using Howard Prairie water would be as expensive as purchasing from the Medford Water Commission but was higher quality.   He strongly encouraged Council to move forward using TID to supplement existing water needs. 

 

Michael Church/2669 Takelma Way/Introduced himself as the president of the Clay Creek Gardens Home Association and explained the issues of having two water meters that should be considered one meter.  He described the half acre of grass, three quarter mile planter strip containing 200 trees and a community garden on the property and asked Council to consider these areas when planning future water curtailments.

 

Melanie Mindlin/1248 Calypso Court/Explained she lives in Ashland co-housing and expressed concern with the way communication was handled regarding water conservation. She strongly supported water allocation being based on the amount of land needing irrigation as well as urban agriculture.   

 

City Administrator Martha Bennett clarified the City did four weeks of press requesting voluntary curtailment prior to declaring water curtailment using major media and the City website. 

 

Council and staff discussed how the Master Plan of the Water Supply System would provide direction for water efficiency, possibly using tiered curtailments, the need for better communication regarding curtailments and changes to the TID open canal if the City used it as a water source.  

 

Councilor Jackson/Voisin m/s to authorize staff to begin drafting amendments to the Water Curtailment ordinance.  Roll Call Vote: Councilor Voisin, Navickas, Lemhouse, Jackson, Silbiger and Chapman, YES. Motion passed.

 

3.   Should Council approve a contract with Carollo Engineers in an amount not to exceed $363,996 to provide a Water Conservation & Reuse Study and Comprehensive Master Plan of the Water Supply System?

Associate Engineer Pieter Smeenk presented the staff report and noted a correction in the Council Communication changing the contract amount to $366,996 instead of $363,996.  The scope of the project was based on the City’s multiple water sources and options to combine them.  The grant required the City to establish a community level of service goal for system capacity, reliability and emergency supply needs and increase environmental stewardship regarding water supply.  It would also allow a study on the possible reuse of wastewater treatment effluent and updating water curtailment planning.  The Master Plan and grant fund would help with the studies as well as lifecycle cost analysis, replacement scheduling, staffing and rate analysis, financial and 50 year planning.  He provided a presentation that included the scoring process, schedule and proposed next steps.

 

Staff clarified there was not a direct penalty for missing the deadline and the grant allowed a three-month extension.  The Part I Study would look at water source opportunities where environmental impacts requiring further studies on feasibility may arise and subsequently increase costs.  Study conclusions would be available by August 2010.  

 

Councilor Jackson/Silbiger m/s to approve contract with Carollo Engineers for the Water Master Plan. Roll Call Vote: Councilor Navickas, Chapman, Silbiger, Jackson, Voisin and Lemhouse YES. Motion passed.

 

 ORDINANCES, RESOLUTIONS AND CONTRACTS

1.   Should 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?

City Attorney Richard Appicello explained changes to the ordinance included Recitals, text addressing constitutional limitations and Recitals stating the purpose was to prevent harm. Other changes restored existing language concerning private property and reduced the violation level from Class A to a Class B.  Also included was evidence indicating victims of sex abuse could suffer harm when exposed to an unexpected public nudity or other triggering mechanisms for posttraumatic stress and Recitals concerning limitations on regulating freedom of expression in the Oregon Constitution.

 

Colin Swales/143 8th Street/Wanted the Council to take action that would afford Ashland’s children the same protection as Talent, Medford and Jackson County and repeal the existing ban that attracts strange naked activists to Ashland.  He asked aggrieved citizens to challenge the Oregon Constitution through the statewide ballot initiative process and encouraged Council to repeal the ban adding media coverage has gotten out of hand.

 

Paul Huard/201 S Mountain Avenue/Explained he was a teacher at Ashland High School and appreciated the proposed ordinance.  He emphasized the issue was about protecting children and nothing else.  He did not want children having to determine the intent of an individual who was publicly nude.  Ashland would not lose its unique qualities if there were a ban but would allow kids to enjoy the safety of walking to school.  Schools were safe areas and many times the only safe place for children.  He urged Council to support a ban that would allow people to have political expression and be non-conforming but protect children. 

 

Deltra Ferguson, Ph.D./345 Maple Street/Coordinator for the Women’s Resource Center of Southern Oregon University/Read a letter from Diane Potratz, Director of the Student Health and Wellness Center on behalf of victims of sexual abuse.  The letter addressed how sexual abuse and posttraumatic stress disorder (PTSD) correlated and how PTSD works.  Involuntary exposure to nudity could trigger past sexual abuse.  Children and teen victims of sexual abuse have no capacity for self-protection and cannot rationalize or explain feelings they experience when exposed to triggers such as nudity and human genitalia.  It was Ms. Potratz’ personal opinion that a community’s strength and character was not measured by the loudest or strongest on freedom of speech but how it attends to its most vulnerable.  The letter encouraged Council to consider the community’s responsibility to protect the most vulnerable, children and youth victims of sexual abuse.

 

Cate Hartzell/892 Garden Way/Shared insights from a recent meeting of the Oregon American Civil Liberties Union and state board of directors on the dynamic nature of constitutions and noted it was the citizens’ task to protect the constitutions. Citizens needed to exercise caution when government starts to limit the rights constitutions guarantee.  She appreciated the intention to protect children from unwanted exposure and understood the desire to control what happens in the public arena.  Statistics show 10% of child sexual abuse is done by strangers and the remaining 90% by family members or someone the child knows.

 

Ralph Temple/150 Myer Creek Road/Explained the proposed ordinance contained constitutional vulnerabilities.  Protecting the potential harm to children abnormally vulnerable to nudity due to a history of severe sexual abuse was not a proper standard to measure the limits of public expression.  Individuals wanting to engage in political or artistic expression would have to work with officials giving them overbroad discretion that would result in discrimination between types of expression.  He suggested language stating anyone in a public place who exposes genitalia with the specific intent of being seen by children under the age of 17 years shall be guilty.

 

Mayor Stromberg read written comments from Bruce Bayard supporting the safety and security of children as well as the widest freedom of expression and explained why they were not mutually exclusive.  He encouraged Council to maintain and expand freedom of expression and find a way through existing laws that children are not targets of inappropriate behavior. 

 

The Mayor then read written comments from Ann Disalvo opposing the limits on public nudity and commenting on community perceptions. She urged the Council to abandon the ordinance and let society’s regard for public nudity return to a more neutral position and possibly allow humor to be its most powerful chastisement.

 

Mayor Stromberg thought a ban of nudity around and en route to schools was appropriate but had concerns about the invasive regulation of people’s behavior and felt motivating the ordinance through the issue of sexual abuse and trauma was a mistake and not necessary.  He suggested the following Whereas statements:

“Whereas it is generally expected in our community that schools provide a protective environment for children and that parents can be confident they have a clear understanding of the experiences their children will have at school...”

Or

“Whereas a recent experience this past fall has demonstrated that the protective capabilities of our schools do not adequately guard against exposure from outside to an individuals genitalia and possible buttocks and breasts except for nursing mothers...”

Or

“Whereas at the same time the Council desires to minimize invasive regulation of personal conduct...”   

 

Councilor Navickas thought a 200-foot ban around schools and additional pathways to schools was a compromise that would create constitutional issues.  Councilor Voisin could not support the amendment to the ordinance because the premise it protected children was false and provided examples. She would support a ban on nudity within a 200-foot radius of schools or school zones based on parents’ right to determine the education of their children about nakedness.  Councilor Lemhouse shared facts that one in four boys and one in six girls are sexually abused before the age of 18.  The State Supreme Court stated nudity in and of itself was not a form of expression.  Compromises had been made and the ordinance was similar to several cities in the State with long-standing ordinances.  Councilor Jackson believed it was about the safety of children and not an infringement of free expression.  She noted other cities had similar ordinances in place for years without issue and this ordinance would mimic the same protection. 

 

Councilor Chapman/Jackson m/s to replace in 10.44.012 Public Nudity Section: “…a public place” or “…a place visible from a public place” with “an exterior public place.”  Delete the second line 10.44.012 Public Nudity:  “This provision is not intended to apply to family changing areas…”  Replace 10.44.012 Penalties Class B violation with Class C.  DISCUSSION:  Councilor Chapman explained the ordinance would be specific to public places and not pertain to someone in their house, yard, and business or in a building. Changing the violation to a Class C reduced the fine to $180 maximum.  Councilor Lemhouse added if it was a form of political expression, it could not be limited.  Councilor Navickas clarified the City had the authority to restrict public nudity entirely including nudity associated with expression and explained the amendments would not prevent someone from being naked in front of schools.  Specific broad restrictions around schools that included expression would accomplish that intent. Councilor Jackson noted it would be more difficult to designate the 200 foot school zone ban than banning public nudity throughout the community as long as the City used the language other cities have used successfully.  Councilor Silbiger thought prohibiting public nudity around school areas would restrict half the town and most likely invite someone to challenge the ordinance.  Councilor Navickas added broadening the terms of nudity and having a ban around schools would prevent someone from finding a loophole to provoke the City again.  Councilor Voisin would not support the motion and thought it was better to go with a smaller area, expanding it would make it harder to enforce.  Roll Call Vote:  Councilor Chapman, Jackson, Lemhouse and Silbiger, YES; Councilor Voisin and Navickas, NO.  Motion passes 4-2.

 

Councilor Jackson/Silbiger m/s to continue second reading to January 5, 2010. Roll Call Vote: Councilor Chapman, Voisin, Jackson, Lemhouse and Silbiger, YES; Councilor Navickas, NO. Motion passed 5-1.

 

2.   Should 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?

Delayed due to time constraints.

 

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

Delayed due to time constraints.

 

OTHER BUSINESS FROM COUNCIL MEMBERS/REPORTS FROM COUNCIL LIAISONS

 

ADJOURNMENT

Meeting was adjourned at 10:30 p.m.

Barbara Christensen, City Recorder                               John Stromberg, Mayor 

 

 

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