HomeMy WebLinkAboutBemis 1/22 - Exhibit 6
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Additional public input received from January 20
(after council meeting) until January 22 (4:30 p.m.)
regarding Appeal of Planning Action 2003-17
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From:
To:
Date:
Subject:
Paul nolte
Bill and Jane; Bryan Holley; City Council; PHiII@fosterdenman.com
1/22/044:42PM
Bemis land use hearing information
I've been asked to furnish some information to the council regarding the Bemis land use hearing.
1. What is the appropriate manner in which the council should make its decision?
Council decisions on land use matters are decided by a motion, second, discussion and vote. Because the
matter is heard "de novo", the applicants have the burden of showing that all of the relevant criteria have
been met. The appropriate motion would be to either approve or deny the application (not uphold or
reverse the planning commission). In either case, council will need to explain the basis for their support, or
lack therof, of the motion.
2. What is the process for appeal of the council decision and what are the financial consequences to the
city if this matter is appealed?
Appeals of land use decisions are filed with the Oregon Land Use Board of Appeals (LUBA). An appeal
can be filed by the applicant, appellant or any person who appeared before the council either orally or in
writing, either in favor or opposed. If the matter is appealed, the decision by the city remains in effect; it is
not stayed or postponed merely by the filing of the appeal. Even though LUBA obtains jurisdiction of the
matter upon filing the appeal, there are two methods for the decision to be revisited by the city if the city so
desires. LUBA will permit the city to reconsider its decision if all parties to the appeal agree to allow
reconsideration. The city is not required to reconsider its decision even if all the other parties desire it, but
it may agree to do so. The second method by which the decision may be revisited is through a mediation
process authorized by statute (ORS 197.860). In such case, the time for the appeal is stayed until the
parties reach an agreement or until the parties conclude that a mediated agreement is not possible.
LUBA can either affirm the decision of the council, reverse the decision or remand the decision to the
council for further findings or explanation of its decision. A reversal means that the decision of the 'COuncil
is overturned and LUBA enters an order requiring the council to approve or deny the application
(depending on what the decision by the council was). LUBA is required to reverse the council and approve
a denied application if it finds that the decision is "outside the range of discretion allowed (the council)
under its comprehensive plan and implementing ordinances" or that the action was taken "for the purpose
of avaiding the requirements" .of the 120 day rule. (ORS 197.835(10)(a)). If LUBA reverses for these
reasons it is required to award attorney fees to the applicant. (ORS 197.835(10(b)). LUBA can also
reverse a case due to ex parte contacts that have not been properly disclosed at the hearing. LUBA has
also established a rule that it shall reverse a decision when the council has exceeded its jurisdiction, made
an unconstitutional decision or where the decision is prohibited as a matter of law. (OAR 661-010-0071 )
The financial consequences to the city for an appeal to LUBA consist of the staff time and expense in
preparing the record and submitting it to LUBA. Those costs are reimbursed to the city if the decision of
the city is upheld on appeal. If the city proceeds to actively participate in the case by filing a brief and
arguing the case then there would be additional staff time and expense involved. If the city loses on
appeal, then LUBA has the authority to order the city to pay costs to the prevailing party. Those costs
include filing fees but seldom amount to more than $1,000. Neither side is required to pay attorney fees
incurred by the other side unless the position taken by a side was "without probable cause to believe the
position was well-founded . . . ." ORS 197 .830( 15)(b) or for the reasons cited in the immediate paragraph
above. LUBA has rarely awarded attorney fees in any case.
3. Is completeness of the application a factor that can be relied upon to deny an application?
The question has been raised as to what effect an incomplete application has on proceeding with a land
use action. The Ashland Land Use Ordinances (ALUO), state statute and caselaw provide the answers to
this question.
ALUO ~18.108.107 is the applicable section of the Ashland code. It provides:
A. In order to initiate a planning action, three copies of a complete application shall be
submitted to the Planning Department.
1. Complete applications shall include:
a. All of the required information for the specific action requested,
b. Written findings of fact,
c. Complete and signed application form. The application must be signed by one or
more property owners of the property for which the planning action is requested, or their authorized
agents. The application shall not be considered complete unless it is accompanied by the appropriate
application fee.
2. Incomplete applications are subject to delay in accordance with ORS 227.178. The City
will inform the applicant of deficiencies within 30 days of application. The applicant then has 31 days in
which to provide a complete application. When the application is deemed complete, or at the end of the 31
day period, the City will begin the appropriate application procedure.
B. All applicants for Types I, II and III planning actions shall have completed a
pre-application conference for the project within a 6-month time period preceding the filing of the
application. This requirement may be waived by the Staff Advisor if in the Staff Advisor's opinion the
information to be gathered in a pre-application conference already exists in the final application.
ORS 227.178(2) provides:
(2) If an application for a permit, limited land use decision or zone change is incomplete, the
governing body or its designee shall notify the applicant of exactly what information is missing within 30
days of receipt of the application and allow the applicant to submit the missing information. The application
shall be deemed complete for the purpose of subsection (1) of this section upon receipt by the governing
body or its designee of the missing information. If the applicant refuses to submit the missing information,
the application shall be deemed complete for the purpose of subsection (1) of this section on the 31 st day
after the governing body first received the application.
The general rule is that absent a showing of prejudice, an incomplete application is regarded as a
harmless procedural error, and an applicant need not provide the information required by the local code.
LeRoux v. MalheurCounty, 32 Or LUBA 124, 129 (1996). If the information is needed in order to
demonstrate compliance with an applicable approval criteria, the applicant may either submit the
information or choose to move forward with the application as submitted. If the applicant chooses to move
forward without providing the needed information, then the application can be denied if the denial is based
upon failure of the applicant to meet an applicable criterion. Negative action is not taken merely because
the application is incomplete.
4) Can the planning commission make an interpretation under section 18.108.160 different that an
interpretation made by the council?
When there is "doubt regarding . . . the meaning of a word or phrase" in the land use ordinance, the
planning director has the authority to refer it to the planning commission for interpretation. The
commission has the authority to issue an interpretation which is then forwarded to the council who has the
authority to modify the commission interpretation.
This section does not give the planning commission the authority to interpret a section previously
interpreted by the council nor may the planning director refer an interpretation to the commission unless
there is "doubt" regarding the meaning of a word or phrase.
Paul Nolte
City Attorney
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City of Ashland, OR
(541) 488-5350 - PHONE
NOTE NEW FAX #AS OF JUNE 25, 2003: (541) 552-2092 - FAX
noltep@ashland.or.us
Visit the city's web site at www.8shland.or.us
Our TTY phone number is 1 (800) 735-2900
cc: Barbara christensen; Bill Molnar; Gino Grimaldi; John mclaughlin; Mike Franell;
Sharlene stephens
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CITY Of
ASHLAND
Memo
DATE:
TO:
FROM:
Through:
January 22, 2004
Mayor and City Council
Michael W Franell
Paul Nolte
RE:
Analysis of letter received from Gary C. Peterson, dated January 20, 2004, on
behalf of Ed and Tanya Bemis
After reviewing the letter and legal memorandum submitted by Gary C. Peterson on January
20,2004, on behalf of Ed and Tanya Bemis we have the following comments:
1) We agree with the assertion that ORS 227.178(3) and the holding in Holland v. City of
Cannon Beach, 154 Or App 450 (1998) require a municipality to apply the ordinances and
development standards which are in place at the time the Bemis application was filed.
ORS 227. 178. Final action on cerlain applications required within 120 days;
procedure; exceptions; refund of fees.
*****
(3) If the application was complete when first submitted or the applicant submits the
requested additional information within 180 days of the date the application was first
submitted and the city has a comprehensive plan and land use regulations
acknowledged under ORS 197.251, approval or denial of the application shall be based
upon the standards and criteria that were applicable at the time the application was first
submitted.
Based upon the record, the applicants initially submitted their application on September
12, 2003. Even though the application was not deemed complete until October 3, 2003,
approval or denial of their application is to be based upon the standards and criteria that were
applicable on the September 12th date. Therefore the provisions of the "big box "ordinance
passed in 1992 are the applicable provisions.
2) All of that being said, we do not believe that the provisions of ORS 227.178(3) or the holding
in Holland would necessarily prohibit the city council from reinterpreting the meaning of the
applicable ordinance.
LEGAL DEPARTMENT
20 East Main Street
Ashland, OR 97520
www.ashland.or.us
Tel: (541) 488-5350
Fax: (541)552-2092
TTY: 800-735-2900
Paul Nolte, City Attorney
Michael W. Franell, Assistant City Attorney
Shartene P. Stephens, Legal AssistantlClaims Mgr.
JC?di Wacenske, Legal Secretary
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In Holland the issue involves an instance where the council reinterpreted its decision as
to whether a particular standard was applicable, not as to how an applicable standard was to
be interpreted. The council first determined that the standard had been impliedly repealed and
did not apply to similar projects before and after the applicant's proposed project. However, as
to the applicant's project, the council determined that the standard had not been repealed and
therefor was applicable.
In contrast to the Holland case, here, there has not been a question that the 1992
version of Ashland land Use Ordinance (ALUO) ~ 18.72.050.C is the appli~able provision of
the code. Rather, the question that the council needs to address is what does application of
that code provision mean to the proposed project.
What the court did not decide in Holland is that the Council is precluded from
reinterpreting an ordinance when it has had a prior contradictory interpretation. Instead, the
Court noted:
We do not categorically foreclose the possibility that, as LUBA concluded, there may
be circumstances under which a city governing body may appropriately change a
previous interpretation as to whether a particular provision is an approval standard
during its proceedings on a particular application. n Holland @ 459.
lUBA, when it addressed this issue, stated:
"As a general matter, local governments may interpret their ordinances to determine
which provisions constitute approval criteria, and we accord that interpretation
significant deference. Localaovemments may also chanae existina intemretations in
the course of onaoina Droceedinas. n (Emphasis added.)
Should the council choose to reinterpret AlUO ~18.72.050.C. consistent with its
direction in the public meetings held prior to the submission of the Bemis application (that the
45,000 square feet limitation applies to the gross total floor area square footage, rather than
the footprint square footage), at least one appellate court decision has indicated, depending
upon the particular circumstances, an opportunity to comment on the proposed new
interpretation may need to be provided to the parties. However, the fact that the council and
planning commission have already held an extensive public process on this matter may suffice
to have met this requirement. This would be even more likely if the applicants participated in
the public process on the reinterpretation.
LEGAL DEPARTMENT
20 East Main Street
Ashland, OR 97520
www.ashland.or.us
Tel: (541) 488-5350
Fax: (541) 552-2092
TTY: 800-735-2900
Paul Nolte, City Attorney
Michael W. FraneU, Assistant City Attorney
Sharlene P. Stephens, Legal AssIstantlClalms Mgr.
J~I Wacenske, Legal Secretary
Julie Norman
S96 Helman
Ashland
Oregon
USA
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Ashland Mayor and City Council
Ashland, Oregon
January 18, 2004
Honorable city councilors, please resist the temptation to make a
speedy approval of the Bemis multi.story building downtown as
currently proposed. The five...story visual mass close to Ashland
Creek, as well as the building's shadow, are of great concern to me.
This proposal to replace a natural outdoor eating area, with a multi!!'
story wall, is significant to our future as a tourism...based community.
This project will effect Ashland's visual and climatic environment
on a primary street corner of tourism activity. This decision needs
time, to protect this environment from degradation.
This proposal needs to be revised and resubmitted, under current
planning department guidelines. Considering this current proposal
under old guidelines would invite controversy. This building project
should set a good precedent, not a bad one.
I would respect the City's right to choose experts among the
community to fully explore the environmental impacts of the proposed
building and then make an informed decision. I recommend that
John Fields be part of that team.
Thanks so much for your hard work,
Julie Norman
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TO THOSE CONCERNED ABOUT THE BEMIS PROJECT:
I try to respond to all messages and inquiries from Ashland citizens promptly and
individually. Unfortunately, on matters that may be appealed to the Council as land-use
decisions, our City Attorney has advised us that it is far better not to read messages or
talk about such issues individually. Under state law, land use decisions are quasi-judicial
matters and have to be done according to detailed rules to maintain as much impartiality
and fairness as possible. Although there are ways to communicate with individuals if
everything said and any conclusions you draw from such communications are fully
reported at the Appeals Hearing, our attorney says it is cleaner and wiser to avoid such
communications completely.
This does not make me particularly happy since trying to share your information
at a public hearing or written message for the whole Council that is forwarded through
the Planning Division is difficult for many. However, to maintain the integrity of the
process, I am following our attorney's advice.
Please feel free to contact me directly on any other type of issue facing the city in
the future.
Sincerely,
Don Laws, City Councilor
From: <JandreauM@aol.com>
To: <Awdb@aol.com>, <donlaws@mind.net>, <cate@mind.net>, <jmorrison@rvcog.org>,
<Cehearn@aol.com>, <katejackson@opendoor.com>
Date: 1/20/04 3:19PM
Subject: Reject Bemis Big Box Projectl
Please reject the proposed 80,000 sq. foot Bemis project slated for the City
of Ashland. I am a native-born Ashlander, and strongly protest this type of
structure in our beautiful small city.
Ashland is unique; we don't need to transform it into another "Walmart"-type
landscape. Tourists don't visit Ashland for another mall. People don't move
to Ashland to live in a "typical city." We are special. Please, please keep
it that way. Please don't follow in the footsteps of a former Ashland mayor
who destroyed much of the beauty of Ashland (I was born here--I remember the
lost landmarks that could have been restored and added to the treasure that is
Ashland's particular signature).
Please be remembered for maintaining the Ashland that is world-famous.
Bigger is definitely not better.
Thank you so much for your thoughtful consideration in this matter.
Marie M. Jandreau
1837 Ashland Mine Road
Ashland. OR 97520
(541) 261-2970
P .S. I was born in 1946-same year as Lithia Motors and Omars. A lot has
improved in Ashland since that time. But improvement should reflect more than
financial expediency. Be brave.
From:
To:
Date:
Subject:
Mary Jo Owens <mjrowens@yahoo.com>
<awdb@aol.com>
1/20/04 10:31 AM
Please turn down the Bemis Projectl.
We hope you will seriously. look at the impact the
proposed Bemis project will have on Ashland's downtown
area, not only the aesthetics, but traffic and
parking. If the plans hadn't been rushed through, the
45,000 sq. ft. limitation would have been in effect.
Please turn down this project.
Sincerely,
Mary J~ and LeRoy Owens
667 Park St.
Ashland
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From:
To:
Date:
Subject:
"jed" <jed@quest5.com>
<awdb@aol.com>
1/19/04 8:54PM
Bemis Project
Hi Alan,
Hope all is well with you and Becky. Celia and I just returned from 10
days in Maui. We had a very relaxing time and only one day of severe,
but warm weather. We had winds of 52 mph and high surf which caused more
problems for Kaanapali resorts.
I was hoping to attend the council meeting Tuesday night and speak in
favor of the Bemis project. However, because of my tight travel schedule
(I am leaving for a business meeting in London on Weds. morning), I am
chairing a meeting for the Rogue Valley Medical Center Rebuild at the
time the council is meeting. Here is what I would say if I were able to
attend the meeting:
The Bemis project is good for our city as it will cover an area that is
an unsightly parking lot that distracts from the beautiful cabaret
theater and Oregon Shakespeare Theater and City of Ashland Parking
Garage. The Bemis project will enhance the neighborhood and is
definitely in character for our downtown area.
It is a shame that a few malcontents have appealed this project to the
council after it was approved my the Planning Dept. These malcontents
who oppose the project are Ashland "takers", not "givers". You don't see
their names in charitable giving projects. I hope you are able to put in
a positive word for me on this great project.
Regards, Jed
Jed D. Meese
88 Granite Street
Ashland, OR 97520
, '"
~ ; r 'r' r
1/21/2004
12.25 pm
Small town
When I grew up the town I was raised in was relatively small.
1 High school
1 Jr. high school
5 Grade schools
<200 students in my graduating class
Approximately 13000 population
A Coast to Coast, a Western Auto, a sporting goods store, J.C. Penneys, The auto
dealerships were downtown, so was Rusty's market and Hanby's market. The usual
small town stufI
But now that I look back, after living in several other towns, what really made this town
different were the people and the sense of community that these people had.
This town bad a really nice park, a plaza area, a regional theater, a municipal airport, golf
course, and it owned its own electric utility and water & wastewater treatment plant.
Amenities not usually found in a small town. This town was a small town and a very
progressive small town.
Now it is years later. The same small town but the debate is not about that progressive
small town but the appearance of a small town. Several people want to make this small
town look small. "Small town development", "quaintness", and "an image that is
important to maintain" are statements in the local paper. These are the qualities that the
people want to maintain. But nothing is said about the real small town, the town I was
raised in and now choose to devote my time to and to live in. This town is not now and
never was about buildings or about the scale of development but about people. It is the
people that make the small town. There are small towns allover the country and very
few are like Ashland. Where else can you go into a coffee shop and talk to Julius Caesar,
or talk to a city counselor in the produce aisle at the grocery store. Or stop and ask
directions in the middle of the main street, or ride your scooter up the sidewalk at the
middle school just to park by the door. Just look at the sculpture in front of the old Chevy
dealership by Starbucks; It is not of buildings but of people. People make Ashland what
it is, not buildings. People invest in the downtown here. People and relationships are
what make this town work. People don't move here for the buildings it is for the people,
the schools, the theatre, and the arts but mostly for the energy of the people of this town.
Walk into the lumber yard and they are just as likely to ask you about your love life as
kiln dried or surfaced green lumber. Just grab an ice cream cone on the plaza and walk
through the town. It doesn't matter that there are buildings close together for a whole
block or that they are 40 feet tall next to the sidewalk. It is a very pleasant feeling, but if
there were no people there it wouldn't be worth the time.
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In the no holds barred attack on the "Bemis Project "I can see the new Ashland. 1 once
bad a chat with someone about the spirit of Ashland, (this was after an ordinance change
by council between the first and second readingS), and they replied "what about the soul
of Ashland?" My answer was that Ashland no longer has a soul when things like this
happen.
There is such a fear about 45000 square foot buildings here; people don't see what is
being lost. Dick Cheney would be proud to see this much fear being generated and fear is
what is being built upon here.
Being on the planning commission, 1 was one who voted to return the big box ordinance
back to the council. The reason, regardless of what Bill Street is saying, was not to
restrict the size to 45000 square feet gross floor area because 1 felt it was too big for
Ashland, (it is part of the record that 1 don't fear 6??oo square feet and that 1 feel we
have the design talent to make it fit). But my reasons are ones that 1 am sure Bill Street
would not understand. They partly have to do with community, civility, and public
process, but mostly about living in and experiencing Ashland and not trying to make it
something it does not want to be. .
There is a lot to be lost on this planning action and it is not just a building. Ashland is
definitely changing with this appeal and it has nothing to do with the size of buildings.
This appeal is one more step in changing a unique small town into a small town facade
and towns like that are a dime a dozen.
~Pt7A.1~-/~r- n- /
,q~~"#~~
( _ Michael Morris
~ 0...
From:
To:
Date:
Subject:
Website User <WebUser@ashland.or.us>
Ann Seltzer <ann@ashland.or.us>, Steve Belsky <steveb@projecta.com>
1/20/04 6:06PM
City of Ashland Website - Feedback Form
From: Suzzi ViTaris
Email: suzziv@osfashland.org
Date: 1/20/20046:01 :13 PM
Subject: The Bemis Project
Other:
This proposed structure is WAY too big; I'm against it.
Please Respond via email...
From:
To:
Date:
Subject:
Website User <WebUser@ashland.or.us>
Ann Seltzer <ann@ashland.or.us>, Steve Belsky <steveb@projecta.com>
1/20/04 5:07PM
City of Ashland Website - Feedback Form
From: Don & Diane Adams
Email: dadams9961@aol.com
Date: 112012004 5:02:04 PM
Subject: Bemis Project behind Ashland Springs Hotel
Other:
As an Ashland builder, and my wife a respected real estate broker for 9yrs. in Jackson County, and being
Ashland homeowners for five years, We believe this project would be beneficial to the "responsible"
growth of the City of Ashland.
Please Respond via email...
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From:
To:
Date:
Subject:
Kate Jackson <KateJackson@opendoor.com>
Fran Berteau <Fran@ashland.or.us>
1/20/04 5:31 PM
Fwd: Stop the Box
Fran
I cannot tell if this went to the others as well.
Kate Jackson
Begin forwarded message:
> From: Garysandye@aol.com
> Date: Tue Jan 6, 2004 11 :17:49 AM US/Pacific
> To: katejackson@opendoor.com
> Subject: Stop the Box
>
> Kate, This is to register my opposition to the construction of the
> huge building behind the Ashland Springs Hotel. Even if size weren't
> an issue enough, the disaster created in parking congestion makes this
> a very bad idea. I realize that the proposition made it in just
> before the approval of the new size ordinance and there are limits
> disapproval, but please do not make any concessions that will allow
> this project to be built. Thank you for your careful consideration of
> all the issues! Gary Moore, Ashland resident.
Kate Jackson
Ashland City Councilor
20 East Main Street
Ashland OR 97520
541-482-2612
katejackson@opendoor.com
From:
To:
Date:
Subject:
Kate Jackson <KateJackson@opendoor.com>
Fran Berteau <Fran@ashland.or.us>
1/20/045:31 PM
Fwd: REJECT BEMIS PROJECT SIZE
Fran,
another uncertain if in public record...
Kate Jackson
Begin forwarded message:
> From: GEOrell@webtv.net (Gail Orell)
> Date: Fri Jan 9, 2004 5:07:45 PM US/Pacific
> To: cehearn@aol.com
> Cc: katejackson@opendoor.com
> Subject: REJECT BEMIS PROJECT SIZE
>
> Please review the Bemis Project to insure all the historical, landscape
> and planning commission regulations have not only been examined closely
> but also met. I am a property owner in that short block of first
> street. Because of the traffic and the daily use by large commercial
> vehicles.
> I find the street too narrow. I've noticed that the limited parking
> and
> surprisingly heavy truck traffic frequently results in double parking.
> I am also concerned about the impact that the project will have on
> parking; the proposed project has potential for adding employees and
> shoppers, resulting in additional demands for parking as well as
> increased congestion.
> Gail E. Orell
> 22 South First Street
>
> Gail E. Orell
>
>
Kate Jackson
Ashland City Councilor
20 East Main Street
Ashland OR 97520
541-482-2612
katejackson@opendoor.com
j. . ,.&
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From:
To:
Date:
Subject:
<DWalper@yci.com>
<council@ashland.or.us>
1/22/04 1 0:00AM
Re: New Bemis Development - opposition
Dear Ashland City Counsel.
I would like to add my voice to those who oppose the new development.
have direct experience with Ed Bemis. and his partner
Alan Sandler. I was part owner of a restaurant/nightclub they built on
Lithia Way in 2000.
My opinion is that they are not supportive of the community at large and
would not create a living or commercial opportunity
that would benefit the City of Ashland or its residents.
My experience:
1. Their rents are among the highest in the city
2. They take an inordinate length of time to finish their projects
3. They often verbally misrepresent what they will bring to the project
4. They spend a great deal of time creating "Legal" protections to protect
their ability to charge exorbitant rents.
Ultimately. I don't believe they have the City of Ashland and/or the
residents of Ashland in high regard - only their own financial
interests.
Yours Truly.
David Walper
ro, .!
MINUTES FOR THE REGULAR MEETING
ASHLAND CITY COUNCIL
May 20, 2003
Civic Center COuncil Chambers,. 1175 E. Main Street
CALL TO ORDER
Mayor DeBoer called the meeting to order at 7:00 p.m. in the Civic Center Council
Chambers.
ROLL CALL
Council Laws, Amarotico, Hartzell, Jackson, Morrison and Hearn were present.
APPROVAL OF MINUTES
The minutes of the Regular Coundl Meeting of May 6, 2003 were approved as
presented. The Coundl Study Session minutes were corrected to readi on the last
page, last paragraph: "45,000 gross square foot area," instead of, "45,000 sq. ft.
.. footprint."
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