HomeMy WebLinkAbout2000-1003.REG.MIN MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
October 3, 2000, 7:00 p.m.
Civic Center Council Chambers, 1175 E. Main Street
PLEDGE OF ALLEGIANCE
Mayor Shaw called the meeting to order at 7:00 p.m. in the Civic Council Chambers.
ROLL CALL
Councilors Reid, Hanck, Hanson, Wbeeldon and Fine were present, Councilor Laws was absent.
APPROVAL OF MINUTES
The minutes of tbe Regular Council Meeting of September 19, 2000, were approved with amendment to page 1, under
Public Forum, to reflect the following change under Bob Tuber testimony; "Shaw stated council did not make this
decision that voters did in a 62% overwhelming approval."
SPECIAL PRESENTATIONS ~
1. Mayor read Proclamation of National Fire Prevention Week.
2. Mayor read Proclamation of Breast Cancer Awareness Month.
3. Mayor read Proeinmation of National Domestic Vioienee Awareness Month.
CONSENT AGENDA
1. Minutes of Boards, Commissions and Committees.
2. Liquor Lieease Applieatinn from Dennis Godfrey dba Ashland Springs Hotel.
Confirmation of judge pro tern appointment.
Reid requested item #3 be pulled from the Consent Agenda to allow for discussion.
Councilors Hauek/Reid m/s to approve Consent Agenda items #1 & g2. Voice Vote: all AYES. Motion passed.
It was noted that City Attorney Paul Nolte would be performing the wedding ceremony of his daughter.
Councilors Reid/Hauck m/s to approve Consent Agenda #3. Voice Vote: all AYES. Motion passed.
PUBLIC HEARINGS
1. Public Hearing on Appeal of Planning Action 2000-074, a request for n site review for the construction
of n new theater and a conditional use permit to allow the fly tower to exceed 40 feet in height. Project
is located on Hargadine Street and east of South Pioneer Street, including the eonstroetion of a parking
struetuee. (Appellant: Swales/Lung, Applicant: Oregon Shakespeare Festiva0 (PUBLIC HEARING
CONTINUED TO OCTOBER 17 AT 7:00 P.M.)
PUBLIC FORUM (None)
UNFINISHIH~ BUSINESS ('None)
NEW AND MISCELLANEOUS BUSINESS
1. Conncil Meeting Look Ahead.
Reid reminded the public, who might have questions regarding the upcoming Bonneville Power Administration (BPA)
Wholesale Power contract scheduled for the next council meeting, that questions should be directed to staff be fore the
meeting. It was noted that BPA intends to have all c0n~acts in place by October 31, 2000.
2. Adoption of Social and Human Services Element of Strategic Plan.
Hauck reported that the commiUee had considered all the suggestions presented at the August 15, 2000, council meeting,
and incorporating the changes into the Plan presented to the council for approval. He explained how and when the plan
would be implemented as part of the Strategic Plan process and noted that the language had been changed to make it
more aspirational. He stated that the plan is another way of providing a list of resources to staff, council, and
committees.
Scoles explained that if the council adopts the Social and Human Services element, it would be incorporated into the
annual City s~rategic planning
Councilors Hnuek/Wheeldon m/s to approve adoption of Social and Human Services Element of Strategic Plan.
Voice Vote: all AVES. Motion passed.
City Council Meeting Oc~ber 3, 2000 Page 1 of 5
3. Motion to dismiss Appeal regarding Oregon ShakespeareFestivalPer formingArts Theater and Parking
Structure.
Shaw announced the Public Hearing process to hear arguments on the motion to dismiss appeal regarding OSF and
parking structure.
EXPARTE CONTACT:
Councilors Reid and Wheeldon stated that they each had contact with a local business owner. Both conversations
included discussion and questioning on whether it was better to allow the appeal, or to make a decision before hearing
the entire appeal process;
Councilor Fine stated that he had attended a planning conference and overhead discussion regarding the present hearing
and the appellant's failure to speak on the approval criteria. He stated that none of the information he overheard
influenced his decision.
PUBLIC HEARING OPEN: 7:23 p.m.
APPLICANT:
John Hassen, Attorney for OSF, distributed a memorandum in support of a Motion to Dismiss. Hassen stated that the
appeal filed by the appellants is ilrelevant in this proceeding as they failed to state the reasons for the appeal when they
filed their challenge to the motion to dismiss. As the grounds were not filed, OSF was not given the opportunity to
prepare for rebuttal. He stated that he had conducted research at the State level, and found the case of Johns v. City of
Lincoln City. which was decided in 1997.
In this case, the Lincoln City ordinance provided as follows: "The Notice of Appeal that is filed with the City shall
indicate the interpretation that is being appealed and the basis for the appeal." In addition, the Lincoln City ordinance
stated the hearing would be a de novo hearing, just as in this case with the Ashland City Council.
Hasscu felt that because this was a de novo hearing, one could argue no prior notification for basis for appeal is
required, as was the case in Lincoln City. He explained that the Court decided, that because there was a challenge under
Oregon Statutes and Policies, which are inclusive, there is no basis for reading of the text of ORS 227.175(10)(a),
precluding local requirements, and that the issues presented on appeal must be specified in advanced. The Statute
confers a right to a plenary appeal, which does not mean any appeal proceeding or one that is plenary in scope may be
obtained without following applicable procedures for appealing and for defining the basis for appeal. The Court went
on further stating that the statute does not proscribe local legislation to require a Notice of Appeal set forth with
reasonable particularity the issues the appealing party willmise at the hearing. The Court in the Lincoln City case finally
decided that avoiding the exclusion of citizens from the decisional process is a recognized and fundamental aspect of
Oregon's Land-use scheme. Hassen stated that the Code clearly states that the basis for appeal is required and added
that the Ashland Municipal Code Section 18.108.110.A states that appeals, "shall be initiated by a notice of appeal filed
with the City Administrator." He noted that the appellant's appeal was filed with the Planning Department, but he is
willing to concede that council could decide filing with the Planning Department is sufficient for the purposes of the
appeal, and is willing to allow the matter to drop. Hassen requested that the council dismiss the appeal on the basis of
the second point made regarding defining the basis of appeal.
Hassen clarified for the council, that an appellant is entitled to full hearing, but if the city has an ordinance requiring
specification of reasons for appeal, evidence for presentation would only be on the points raised as issues for appeal.
He noted that there is nothing in the record showing that anyone had challenged the issue.
APPELLANT:
Phillip Lanf,/758 B Street/Voiced his concern that he was not given the opportunity to read the memorandum handed
out by the applicant, or allowed to perform research of his own based on the findings, prior to this meeting. He
disagreed with the statements made by the applicant in the memorandum where the applicant had asked the council to
deny the appeal on two technical reasons. Lang explained that he filed the first response to the memorandum on
September 25, and the second response on October 3. As council had not received copies of this appeal, he distributed
handouts and Exhibit B, which wes part of his first appeal filing.
Lang explained that he was initially directed to file the appeal, by City Administrator Almquist's executive assistant,
with the Planning Department, which is in the record for 1995. Lang provided Exhibit C, with the September 25
response, which indicated that of the twelve appeals, only two were filed with the City Administrator. He stated that
the basis of the appeal was referenced in his appeal, by extensive oral and written testimony, at the Planning
Commission hearing on August 8. He added that the issues he raised were neither responded to nor acknowledged at
City Council Meeting October 3, 2000 Page 2 of 5
Planning Commission meeting, and noted that he had asked iftbere any questions after his presentation, of which there
were none. Lang stated that the representative for the applicant dismissed all the questions and issues by declaring them
"irrelevant." Lang stated that the hearing and appeal process is quasi-judicial, and as such, extensive information is
incorporated by reference, as well as materials brought forth as public record. In 1995, as directed by the City
Administrator, he referenced the appeals, and again this time.
Lange explained that because figures had changed in response to the city attorney's analysis, which differed from his,
he reviewed and reconciled the numbers with the city attorney's findings, which is summarized on page four of the
handout. He stated that, of the twelve analyzed, only one showed no basis stated and that two, which indicated no basis
stated, are referenced in the appeal letter. Lang continued that five state the basis and one shows the basis was not raised
at the hearing, but was sited as a basis for appeal. He commented that one basis, as claimed by the city attorney, was
is a "reach" by his own standards, as the appellant did not testify at the hearing. Lang concluded that consistency,
quality of treatment, and fair play, calls for the council to hold the appeal hearing as requested.
Colin Swales/461 Allison StreetYStated that the request for appeal is complete, as the two-page detailing of the grounds
for appeal, was referenced.
Nolte clarified for the council that the appeal never raised the issues of either qualifying or complying with the
ordinance. He explained that the council may make a motion to allow appellants to cure any defects by submitting an
appeal complying with requirements, if the council finds that this is a procedural rather than a jurisdictional defect.
Nolte further explained that it is within the council's discretion to determine if the criteria have been met and that the
burden to prove the criteria has been met, falls on the applicant.
Nolte clarified that the staff person in the Planning Departmant is a recipient and does not analyze applications for
correctness, but if requasted by appellants will explain the requirements. He did not feel that it is the respunsibility of
the Planning staff to advise applicants as to whether or not they have complied with the law. Nolte also clarified, that
if the council does not grant the motion, it would not constitute a final decision that could be appealed to LUBA. He
explained that the appeal would first come to the council and then the applicant would wait until a decision was made
on the merits of the appeal before it could be taken to LUBA.
Fine noted that the City of Ashland ordinance is less specific and allows more flexibility of interpretation in comparison
to the Lincoln City ordinance. He felt that where the City of Ashland ordinance states, "Failure to pay the Appeal Fee
at the time the appeal is flied is a jurisdictional defect," makes any other defects non-jurisdiedonal. Because of this,
he sees the defect as procedural, not jurisdictional. He stated that because this is a de hove hearing, wh~ic~ allows ~e
appellant to voice all concerns, the applicant is forewarned and can prepare. Fine felt that there was,~substantml
prejudice that might be done to the applicant, if the council should deny the motion and allow the appeal to go forward.
He further indicated that he would like the appellants to make a more precise memorandum, identifying the points they
plan to speak on, and to provide a copy to Mr. Hassan at least five days before the hearing.
Nolte supported Fine's interpretation and explained that the council must decide if the defect is procedural or
jurisdictional. He requested that an additional requireinant be made, that the appeal be filed in a timely manner, as this
is not identified specifically in the ordinance as a jurisdictional defect. Nolte explained that if the council should
identify this as a procedural defect, it would mean that the time for filing the appeal never runs out, and no one would
know when the decision is f'mal. Nolte recommended that the council determine the defect to be jurisdictional.
The council discussed the manner in which the speakers should be allowed to voice their thoughts and Shaw read the
names of those who had signed up to give public testimony. Wheeldon noted, and the council agreed, that the speakers
should talk only on the motion to dismiss and not on the appeal.
M~ rilyn Brigg~/590 Glenview D rive/Stated that the procedure for filing the appeal was not made clear to the appellant
and urged the council to adopt the wording of the ordinance so that future appeals are turned into the city attorney. She
suggested that two to three working days be allowed for verification of requirements, notification to the applicant on
findings, and time allowed to make corrections. Briggs requested that the council find this to be a procedural defect
rather than a jurisdictional defect.
Bob Taber/9? SeeniedUrged the council to not dismiss the appeal, by allowing the appeal to continue, as it opens the
subject to additional public input. He felt that the City and the project would benefit, as he felt that the design is not the
best that could be developed, and that the applicant could benefit by hearing all of the public comments.
City Council Meeting October 3, 2000 Page 3 of 5
Bill Street/180 Mend/Stated that the contact he has had with City staffhas been wonderful and urged the council to
mainta'm the rapport between the City and its citizens. He felt that the applicants have the right to appeal and that the
council has nothing to lose, and everything to gain, by hearing the appellants out.
Paul Mensch/I-Ie did not agree with the request to deny the request to dismiss, and noted that he had easily found the
information for filing an appeal on the City website. He explained that the ordinance states that, "the notice shall
include the specific grounds for which the decision should be reversed or modified" and it is clear that this was not
done. He urged the council to deny the appeal.
John Freedom/Noted his past experiences on appeal processes and stated that he did not have ~rouble filing. But, he
felt that not all citizens have the same level of understanding when applying for appeals. He questioned ifa procedure
could be put in place that would ensure that an applicant's appeal would be reviewed for accuracy before the check is
cashed. Freedom declined the opportunity to take "sides" and concluded by urg'mg the council to review the procedure
for applying for an appeal.
REBUTTAL:
Hassen stated that there was substantial public input at the Planning Commission before a decision in this mat~er was
made. He does not believe that staff should be burdened with the responsibility of determining if applications for
appeals me~ all requirements. He suggested, that should the council decide to deny the appeal, that they also consider
refunding the application fee.
Reid questioned how the situation would be handled if it were reversed, such as a large nonprofit organization requiring
an individual to continue with possibly expensive litigation, as this could set a precedent for future cases. She felt that
it was important to put things on a level the playing field, and noted that all partias have the obligation to fill forms out
as required by City ordinance.
Hanck felt that the appellants made a good-faith effort and that they made a procedural error because they did not follow
the ordinance exactly. He also agreed with Fine that because it is a de novo hearing, the procedural error docs not
substantially harm the applicant, as they need to come prepared for any eventuality. Hauck felt that in the future, it
should be made clearer to people applying for appeals, that they need to include the required statements as written in
the ordinance.
Reid voiced her concern that the council may be biasing the decision based on the players, and that the perception is
a large company against two individuals in the community. She questioned if the roles were reversed and the
individuals were being forced to continue with possibly costly delays that opinions may be sweyedin the other
direction.
Hauck disagreed with Reid, and did not feel that this is the case. He stated that the expectation of a case would be based
on how previous cases ware processed, and to f'md that what was submitted was not sufficient, is simply procedural in
nature.
Wheeldon commented, that if the situation were reversed, the council would not be caught with a lack of clarity and
noted that this is a large project, which will have a large impact on the community.
Councilor~ Fioe/Hauck m/s to dismbs the appeal on the grounds that while there is a defect, it is procedural not
jurisdictional; to direct appellants to deliver by October 9, 2000, a better Statament of Grounds for Appeal beth
to the City Administrator and Mr. Hassen's office: to dirm st~ffto prepllr~ a draft order exp¼ining why the
council is denying the motion to all*miss; and to.invite staff to further refine the ordinance. Roll Call Vote.
Whecldon, Fine, Huuek, Hanson YES, Reid No. Motion posit.
4. ADA Compliance Review Settlement Agreement with the U.S. Department of Justice.
Nolte explained that the disability rights section of the US DeparUnent of Justice surveyed the City's facilities in
February 2000 for compliance with the American's of Disabilitias Act. The survey was part of a nationwide program
to survey cities, counties, and states t~ see how the act was being applied. He noted that approximately $180,000 has
been spent, and an excess of $100,000 is still needed to fulfill all the requirements.
Councilors Fine/Reid m/s to approve the settlement agreement and authorize the mayor to sign the agreement
on behalf of the city. Voice Vote: all AYES. Motion passed.
City Council Meeting October 3, 2000 Page 4 of 5
5. Consideration of street cut request on Sherman Street to replace a collapsed sewer line.
Councilors Hanson/Fine m/s to approve staff recommendation on allowing a street cut on Sherman Street. Roll
Call Vote. Hanson, Reid, Wbeeldon, Hauck, Fine YES. Motion passed
6. Request for Approval of a City Water Service connection to property at the end of Tucker Street (39-
1E-0flBD Tax Lot 2200) outside City Limits, but within the Urban Growth Boundary.
Councilors Fine/Hanson m/s to approve staff recommendation to deny request for city water connection. Roll
Call Vote. Wheeldon, Reid, Hauck, Hanson, Fine YES. Motion passed.
ORDINANCES. RESOLUTIONS AND CONTRACTS
1. Second reading by title only of"Aa Ordinance amending Section 14.08.030.C of the Ashland Municipal
Code by removing the requirement for proximity to an existing sewer main before dwelling outside City
Limits may be connected to City Sewer."
Councilors Hauck/Hanson m/s to approve Ordinance #2861. Roll Call Vote: Hanson, Fine, Wbeeldon, Reid,
Hauck YES. Motion passed.
2. Approval of Intergovernmental Agreement with the Ashland School District for School Activities Levy.
Councilors Fine/Wheeldon m/s to approve Intergovernmental Agreement. Roll Call Vote: Hauck, Wheeldon,
Fine, Reid, Hanson YES. Motion passed.
OTHER BUSINESS FROM COUNCIL MEMBERS (none)
ADJOURNMENT
The meeting was adjourned at 8:55 p.m.
Barbara Christensen, City Recorder/Treasurer
Catherine M. Shaw, Mayor
City Council Meeting October 3, 2000 Page 5 of 5