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HomeMy WebLinkAbout2010-1102 Council Mtg PACKET CITY OF ASHLAND AGENDA FOR THE REGULAR MEETING ASHLAND CITY COUNCIL November 2,2010 Council Chambers 1175 E. Main Street Note: Items on the Agenda not considered due to time constraints are automatically continued to the next regularly scheduled Council meeting [AMC 2.04.030.E.] 6:00 p.m. Executive Session for Real Property Transaction pursuant to ORS 192.660(2)(e) and for Employment of a Public Officer pursuant to ORS 192.660(2)(a) 7:00 p.m. Regular Meeting I. CALL TO ORDER II. PLEDGE OF ALLEGIANCE III, ROLL CALL IV. MAYOR'S ANNOUNCEMENTS V. SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS? [5 minutes] 1. Study Session of October 18, 2010 2. Regular Meeting of October 19, 2010 VI. SPECIAL PRESENTATIONS & AWARDS 1. Presentation of retirement plaque to Rich Walsh VII. CONSENT AGENDA [5 minutes] 1. Will Council accept the Minutes of the Boards, Commissions and Committees? VIII. PUBLIC HEARINGS (Persons wishing to speak are to submit a "speaker request form" prior to the commencement of the public hearing. All hearings must conclude by 9:00 p.m., be continued to a subsequent meeting, or be extended to 9:30 p.m. by a two-thirds vote of council {AMC S2.04.050}) None. IX. PUBLIC FORUM Business from the audience not included on the agenda. (Total time allowed for Public Forum is 15 minutes. The Mayor will set time limits to enable all people wishing to speak to complete their testimony.} [15 minutes maximum] COUNCIL MEETINGS ARE BROADCAST LIVE ON CHANNEL 9 VISIT THE CITY OF ASHLAND'S WEB SITE AT WWW.ASI-lLAND.OR.LJS X. UNFINISHED BUSINESS 1. Does the City Council wish to adopt findings prepared by staff to formalize the Council's decision on the AT&T Wireless Communications Facility appeal? [10 Minutes] Please note: The public hearing on this item is closed, no further public testimony will be allowed. No additional materials will be provided for this packet. Please use the packet materials from the October 5, 2010 meeting. A complete copy of the record is on-line http://ashland.or.us/Page.asp?NavID=12984 and a hard-copy of the packet is available in the Community Development Department (51 Winbum Way). 2. Does Council have questions regarding the current status of the Lithia Springs Property lease extension including the environmental assessment work and implementation of the best management practices by the Ashland Gun Club? [10 Minutes] XI. NEW AND MISCEllANEOUS BUSINESS None. XII. ORDINANCES, RESOLUTIONS AND CONTRACTS 1. Will Council approve Second Reading of ordinance titled, "An Ordinance Relating to Noise and Heat Pumps of Mechanical Devices and Amending AMC 9.08.170, 9.08.175, and 15.04.185"? [5 Minutes] 2. Will Council approve Second Reading of an ordinance titled, "An Ordinance Relating to Public Contracting and Amending AMC 2.50.080, 2.50.090, 2.50.100, 2.50.120, and 2.50.130"? [15 Minutes] 3. Will Council approve First Reading of an ordinance titled, "An Ordinance Relating to Public Rights of Way and Amending AMC 13.02" and move the ordinance on to Second Reading? [15 Minutes] XIII. OTHER BUSINESS FROM COUNCil MEMBERS/REPORTS FROM COUNCil LIAISONS XIV. ADJOURNMENT In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Administrator's office at (541) 488-6002 (TTY phone number 1-800-735-2900). Nolification 72'hours prior to the meeting will enable Ihe City 10 make reasonable arrangements 10 ensure accessibilily to the meeting (28 CFR 35. 102-35.104 ADA Title I). COUNCIL MEETINGS ARE BROADCAST LIVE ON CHANNEL 9 VISIT THE erry OF ASHLAND'S WEB SITE AT WWW.ASHLAND.OR.US CITY COUNCIL STUDY SESSION October 18. 20 I 0 Page I of2 MINUTES FOR CITY COUNCIL STUDY SESSION Monday, October 18, 2010 Siskiyou Room, 51 Winburn Way Mayor Stromberg called the meeting to order at 5:31 p.m. in the Siskiyou Room. Councilor Silbiger, Chapman, Voisin, Navickas and Lemhouse were present. Councilor Jackson was absent. l. Look Ahead Review Item was not reviewed. 2. Does the Council concur with the following staff recommendations? Fire Chief Karns, Division Chief - Fire Marshal Margueritte Hickman, Forest Resource Specialist Chris Chambers and Firewise Communities Coordinator Ali True provided the staff report' on each of the following bulleted items: . ,Adopt an ordinance requiring the phase out of l1ammable roofs throughout the community. Chief Karns noted recent fire safety steps taken regarding weed abatement, the certified training program, Firewise and the hydrant marker program. Roofing material is restricted in the wildfire zone but not throughout the city. The ordinance would allow only Class A non-wood roofing materials for new construction and 25% or greater remodels involving a roof and institute a 10-year period to -replace all wood roofs with Class A non- wood materials. Wood roofs typically have a 20-year life expectancy. Citizens were interested in having the City provide either low-interest or no-interest loans for roof replacement. Chief Karns clarified the 25% remodel requirement did not pertain to the first 25%, was based on the square footage of roof areas and applied to reworking roofs only. Council expressed concern regarding the price of replacing roofs and enforcement. . Establish an outreach and education program to encourage fire resistant landscaping and vegetation management Firewise Communities Coordinator Ali True eXplained Ashland was one of the highest wildfire risks in the State because of the topography, extended fire season, density and flammable vegetation. The proposed Vegetation Management model was based on a list of specific vegetation with qualities that make them more hazardous in a wildfire environment. The model would also address ornamental landscaping, erosion and slope stabilization. Modifying vegetation was critical in stopping wildfire spre;1d. Additionally, the model provided standards for the 30-foot zone around the house versus the 200-foot zone. Implementation would consist of education efforts, grant programs, a pilot chipping program and the Firewise Board. Ms. True could provide assessments of properties and help develop a plan that included maintenance for the homeowner free of charge. . Establish by ordinance a Firewise Board? Ms. True eXplained the five steps to the Firewise certification process entailed a community assessment, creating a Firewise board of citizens, dedicating a Firewise Communities day annually, investing $2.00 per capita annually in local firewise projects and submitting an annual report documenting program compliance. Participation would require 85% of homes in the urban interface be Firewise Certified or assessed as having survival defensible space. The Firewise Board would be primarily community driven through a Firewise Commission, could provide resources on a national level but no financial benefit. Firewise certification would not reduce insurance rates at this time. The commission would disseminate education efforts to several communities within the city. CITYCOUNCILSTUDYSES~ON October -/8, 2010 Page 2 of2 Staff explained Firewise required a citizen-based commission with the Fire Department participating as an invited guest. The 85% certification applied to homes in the wildfire area only. Currently that ~ea was at 30%- 40% for fire prevention and control. Firewise would concentrate on the interface and staff would promote the safety model throughout the city. Council expressed some concern on establishing another commission. The Mayor suggested establishing the board as a task force with a 2-year deadline that possibly would evolve into a commission later. Council directed staff to look at the pros and cons of having a commission or ad hoc committee. . Work with the State Fire Marshall and State Building Codes division to either require or allow local jurisdictions to require fire sprinklers in new residential construction and in residential remodels Fire Marshal Margueritte Hickman showed examples of how fire sprinkler systems mitigate the effects of fire. Residential fire sprinkler systems in new construction for a standard 2-3 bedroom home would cost $1-$1.25 ,per square foot. Custom homes with architectural features would cost $2-$3 per square foot. Apartments were estimated at 80 cents per square foot. Fire Marshal Hickman confirmed that sprinkler systems were not required in multi-family units. Homes with fire sprinkler systems can reduce the fire component of home insurance from 5%-15%. 'Councilor Chapman shared his experience of trying to install a sprinkler system into his home. Residential supply had to be one inch and that comprised of changing the supply line to his home and installing a new mete~. Even though the sprinkler system would most likely never be used, it doubled the monthly water payment. Subsequently, he chose not to install a sprinkler system. Staff explained the Oregon Fire Service was working on the cost of water purveyors for the meters. The ordinance would apply to new construction only. Staff was interested in possibly extending the ordinance to retrofit multi-family dwellings later. Oregon utilizes the International Code Council as the model code that the State adopts with amendments. In 2009, the International Residential Code implemented fire sprinkler systems for all residential buildings and the Oregon Residential Code Review under the Building Codes Division chose not to adopt that requirement. In 2011, an appendix will be adopted regarding implementation of Oregon Residential Specialty Code that will allow local jurisdictions to adopt fire sprinkler ordinances. Council had concern regarding the expense and wanted options on how to deal with costs prior to making a decision. . Work on cooperative agreements with ODOT, Union Pacific Railroad, Central Oregon and Pacific Railroad (CORP) and Jackson County on weed abatement on properties nnder their jurisdiction? Chief Karns explained the need to work with the County on weed abatement. Mayor Stromberg will contact Jackson County Commissioners after the election regarding collaborative efforts. Jackson County would most likely not adopt the Firewise program. Senate Bill 360 followed many Firewise recommendations regarding vegetation management and new construction that applied to rural property owners in Jackson County. Working withthe County would be ajoint effort. Additional comments from Council supported the ordinance for wood roofs and suggested a 15-year replacement deadline instead of 10, agreed on working with the County but noted concerns regarding the ordinance for residential sprinkler systems. Meeting adjourned at 6:45 p.m. Respectfully submitted, Dana Smith Assistant to the City Recorder ASHLAND CITY COUNCIL MEETING October 19,2010 Page I of9 MINUTES FOR THE REGULAR MEETING ASHLAND CITY COUNCIL October 19,2010 Council Chambers 1175 E. Main Street CALL TO ORDER Mayor Stromberg called the meeting to order at 7:00 p.m. ROLL CALL Councilor Voisin, Navickas, Lemhouse, Silbiger and Chapman were present. Councilor Jackson was absent. MAYOR'S ANNOUNCEMENTS Vacancies on the Planning Commission, Public Arts Commission, Housing Commission, Tree Commission, and upcoming vacancies on Budget Committee were announced. The deadline for the annual Budget Committee applications is November 5, 2010. SHOULD THE COUNCIL APPROVE THE MINUTES OF THESE MEETINGS? The minutes of the Study Session of October 4,2010 and Regular Meeting of October 5,2010 were approved as presented. SPECIAL PRESENTATIONS & AWARDS The Mayor's Proclamation of October 24,2010 as United Nations Day was read aloud. CONSENT AGENDA l. Does Council wish to confirm the Mayor's appointment of Thomas Beam to the Conservation Commission with a term to expire April 30, 2012? 2. Will Council accept a Connect Oregon ill constrnction grant to cover the City required 5% match for the Airport Improvement Project-Runway (AlP) Rehabilitation and Precision Approach Path Indicator (P API) light installation for the amount of $92,900? 3. Will Council approve an Airport ground lease with Brim Aviation for the storage of aviation related equipment? 4. Does Council wish to enter into an Intergovernmental Agreement to participate in the Southern Oregon High-Tech Crimes Task Force in order to regionalize investigations related to high-tech internet crimes? 5. Does Council have any questions regarding the resnlts of sale of Full Faith & Credit bonds per resolution 2010-11 to refinance the Department of Environmental Quality loan originally used to help pay the costs of the Wastewater Treatment Plant project? Councilor Navickas/Chapman m1s to approve Consent Agenda items. Voice Vote: all AYES. Motion passed. PUBLIC HEARINGS (None) PUBLIC FORUM Dennis Cluff/270 Dead Indian Memorial Road/Spoke regarding the high monthly cost for City sewer service outside of city limits and asked for assistance. Colin Swales/143 8'h Street/Commented on the title of an upcomi~g workshop "Pedestrian Places," October 27,2010 at the Ashland Middle School Commons. He explained the title was a contradiction in tennsbecause the workshop would actually address rewriting City Land Use code to allow higher density development at ASHLAND CITY COUNCIL MEETiNG October 19, 2010 Page 2 of9 three specific intersections. UNFINISHED BUSINESS I. ' Does the City Council wish to affirm, reverse, modify or remand back to the Planning Commission the decision to approve a wireless communication facility installation on the Ashland Street Cinema building at 1644 Ashland Street? Mayor introduced special Legal Counsel Pamela Beery to the Council. He went on to note the Public Hearing was closed and no further testimony would be allowed nor would additional materials be provided. ABSTENTIONS. CONFLICTS. EX PARTE CONTACTS Councilor Chapman declared no ex parte contacts or conflicts of interest. He responded to the bias challenge eXplaining he seldom used a cell phone and AT&T was not his carner. Councilor Silbiger had nothing further to declare from the last meeting. Councilor Lemhouse disclosed he went to the pizza parlor behind the location. He explained AT&T was his personal carner and one of his duties with the Medford Police Department was to review cell phone contracts for the Police Department and that contract recently changed from AT&T to Sprint. Councilor Navickas disclosed he had several encounters with citizens who tried to discuss the issue. He was clear this was a judicial decision that he could not receive outside information on. It was difficult at times but he had not received any information that would bias his decision. Councilor Voisin declared no contacts or change and did not use AT&T as her cell phone provider. Mayor Stromberg had no ex parte contacts or conflicts of interest to report. He used AT&T as his cell phone carner but did not think it would influence him deciding on this situation. Counsel Pamela Beery clarified the bias challenge on cell phone carners and had the Council and Mayor confirm they could make an impartial and unbiased decision based on the record and the presentations and not on any bias or personal pre-judgment. Consensus affirmed they could remain impartial and unbiased. COUNCIL DELIBERATION CONT'D. Mayor Stromberg explained under the State of Oregon Land Use laws and Federal laws that govern cell phone issues there was 120-day limit to make a decision. With the extension from the applicant, the deadline for this decision was November 2,2010. Ms. Beery clarified the Telecommunications Act provision governing wireless communications facility (WCFs) sites and explained congress pre-empted local authority to review any concerns dealing with health or environmental effects of the facility as long as it was licensed, FCC approved and operated within those minimum standards. Council did have zoning authority but could not regulate based on health concerns. Deliberation was broken into four issues: ISSUE 1 l. Did the Planning Commission properly interpret the "feasibility" standard in 18.72.180.C.2 - Preferred Design? Associate,Planner Derek Severson read the following slide on Preferred Designs aloud: Preferred Designs a. Where possible, the use of existing WCF sites for new installations shall be encouraged. Collocation of new facilities on existing facilities shall be the preferred option. b. If (a) above is not feasible, WCF shall be attached to pre-existing structures, when feasible. ASHLAND CITY COUNCIL MEETING October 19.2010 Page 3 of9 c. If (a) or (b) above are not feasible, aIternative structures shall be used with design features that conceal, camoul1age or mitigate the visual impacts created by the proposed WCF. d. If (a), (b), or (c) listed above are notfeasible, a monopole design shall be used with the attached antennas positioned in a vertical manner to lessen the visual impact compared to the antennas in a platform design. Platform designs shall be used only if it is shown that the use of aD alternate attached antenna design is ,not feasible. e. Lattice towers are prohibited as freestanding wireless communication support structures. Councilor Chapman eXplained the Planning Commission were clearly fiustrated with the words "encourage" and "preferred" in the code and noted it as a weak justification in their Findings. The intention of the code was to strike a balance between regulating facility placement and good service for citizens and the economy. If Council agreed with the Planning Commission's interpretation, that it was a weak suggestion to review collocation, Council would need to look at the record to determine if the evidence was convincing. He suggested strengthening the code to "must consider." The purpose and intent ofthe 18.72.180 was to establish standards that regulate placement, appearance and impact while providing residents with the ability to access and adequately utilize these services. Submittals indicate the applicant "shall" provide existing wireless sites, a collocation feasibility study, a copy of the lease and any other relevant documents that comply with design standards. Under Standards, it read all WCFs "shall" be located, designed, constructed, and maintained in the following standards. A stronger interpretation of the definition of feasibility was appropriate. Council Navickas thought the language was very clear, stating that collocation "shall be" the preferred option and created a dichotomist key as to whether the applicant moves with collocation or not. The weakness in the word "preferred" were the various tiers of options it generated. "Shall" was the more important term. The Planning Commission clearly erred in the interpretation of the ordinance and he was disappointed to hear it stated as an aspiration. The language stated it wanted collocation and there was a tiered system if collocation was not possible as well as demands showing feasibility was not possible somewhere else, that meant a rigorous and good faith effort to look at feasibility. Councilor Voisin thought the Planning Commission misinterpreted 18.72.180.C.2.A as aspirational and not mandatory. The introduction made clear the ordinance was looking for visual and aesthetic impacts that can be mitigated. 18.72.180.8.6 indicated the collocation feasibility study should state reasons why collocation can or cannot occur. The seriousness of collocation was clearly being built throughout the ordinance. In 18.72.180.C.2 Preferred Design, other statements gave strong support that preferred design was the preferred option. The language referring to collocation of new facilities on existing facilities shall be the preferred option was a strong statement and not an aspiration. Councilor Lemhouse noted if the code were meant to be mandatory, it would have stated it. The code should be read and applied to an argument, not made to fit an argument. Councilor Silbiger explained he looked at the intent when interpreting code. It was written after the 1996 Telecommunications Act and intended to give local government the powers needed to regulate in specific areas. The code was looking to mitigate visual impact and use language that prevented absolutes. However, the ordinance used "shall" and stated criteria. He was fine with the language. Councilor Chapman responded to Councilor Lemhouse and explained Council was a unique body responsible for writing the code and interpreting the intent. Councilor Lemhouse understood but was uncomfortable with the possibility of reading too much into the interpretation to make it fit an argument and preferred to look at it purely to determine what it meant. General Council consensus was the Planning Commission did not interpret the feasibility standard in 18.72.180.C.2 Preferred Design properly. ASHLAND CiTY COUNCIL MEETING October 19,2010 Page 4 of9 2. If Yes, is there substantial evidence in the record to support the decision? N/A 3. If no, what is the proper interpretation? Council discussed using the Land Use Board of Appeals (LUBA) definition of "feasible" as capable of being done, executed, having reasonable alternatives or affected possible realization. In Simmons vs. Marion County LUBA stated, "Interpreting a County ordinance provision requiring that no feasible alternative site in the area exists, we have stated the county cannot deem alternative sites infeasible simply because it would be difficult for the applicant to make use of those sites. Additionally, we have frequently stated that a site or project is feasible ifthere are reasonable solutions available for identified problems." Ms. Beery explained once Council had its definition of "feasible" they would look at the evidence case by case in light of what they now interpreted the code to mean. The next step was weighing the evidence against the standard. Councilor Silbiger thought the standard to make that decision was 18.72.180.6 in the Application Submittal Requirements that laid out the standard for feasibility and talked about the collocation feasibility study. Council agreed unanimously to use LUBA's definition of "feasible." 4. Is there substantial evidence in the record that the application complies with feasibility standard? Councilor Silbiger read from the Findings the June 15,2010 Submittal B. Radio Signal Limitations that , explained the Holiday Inn site did not meet a required coverage goal for the SOU campus, did not have a direct line to AT&T's existing site and would not offload calls as required. It also noted the additional 13 feet at the proposed cinema site would provide higher coverage. This was the information that the Planning Commission used to determine that collocation was not feasible. Councilor Voisin read from a May 19, 2010 letter regarding collocation issues from AT&T consultants that read collocation on the Holiday Inn Express could work purely from a radio frequency (RF) perspective. However, the Holiday Inn required AT&T to place their equipment in an inaccessible closet located above the drive through area where guests are dropped off. The only way to access the equipment was using ladders. Because of the proposed dangerous location for the equipment AT&T rejected the Holiday Inn as a potential location for this site. Councilor Voisin did not see in the feasibility study why it was dangerous or other alternatives within the site. Councilor Chapman thought the feasibility study should have explained the gap in service or quality that the provider wanted to remedy, why existing sites would not work well enough and why the new site would. The evidence was weak, contradictory and fluid. The record did not address the specific problems the applicant was trying to solve. Councilor Navickas agreed there was not enough effort to show that collocation was not possible and did not see enough evidence to prove otherwise. ' Councilor Lembouse looked at it from the judicial perspective, was there enough evidence for a reasonable person to say there was enough. Applying LUBA' s definition of feasibility to the evidence provided showed the evidence was not strong enough. General Council consensus was the evidence did not meet the burden of proof under the definition of feasibility. ISSUE 2 1. Is there substantial evidence in the record to support the Commission's decision that the apptication complies with 18.104.050.C ("no greater adverse material effect")? ASHLAND CITY COUNCIL MEETING October 19,2010 Page 5 of9 Council consensus there was substantial evidence in the record to support the Planning Commission's decision that the application complied with 18.104.050.C. ISSUE 3 l. Is there substantial evidence in the record that the application complies with the requirements in 18.72.180.B.6 for the Applicant to submit a collocation study and a copy of the lease? Ms. Beery clarified the appeal challenge, "Was the application insufficient because it did not contain a collocation study or a copy ofthe lease?" The Planning Commission found the submittal requirement not part ofthe approval criterion and she concurred with that finding. It was typical for an applicant to supply pieces of information over time. Since it was not an approval criterion, the application would not be denied because an item in the checklist for the application was missed. If Council wanted that to be a standard, it needed to be stated in the code. Councilor Silbiger noted that since an application had to have those items to be deemed complete the fact it was moved forward through the Planning Commission suggested the defect was not the applicant's fault because the Planning staff deemed it complete. Councilor Chapman could not find enough evidence to overturn the Planning Commissions decision but thought there were some complications with the decision. Council consensus agreed with the Planning Commission that the application complied with the requirements in 18.72.180.8.6 regarding submitting a collocation study and a copy of the lease. ISSUE 4 1. Is there substantial evidence in the record that the application complies with the variance criteria in 18.72.090? Council consensus agreed there was substantial evidence in the record that the application complied with the variance criteria. Ms. Beery explained the Council could make a motion to grant the appeal for Issue 1 and overturn the Planning Commissions decision for two reasons. One, the Planning Commission erred in interpreting the feasibility standard as an aspirational standard and Council wanted a standard more in line with what LUBA had articulated in other cases. The second was based on that feasibility interpretation there was not substantial evidence in the record provided by the applicant in support of their application to meet that standard. Conncilor Navickas/Chapman m/s to grant the appeal and reverse the decision of the Planning Commission and direct staff to draft Findings stating that the Planning Commission erred in its interpretation ofthe feasibility Standard in 18.72.180 C.2, and thatthere is not substantial evidence in the record to support the decision and the applicant fails to apply with the feasibility standard, and there is substantial evidence in the record to uphold the Planning Commission's decision on the remaining three grounds for the appeal. DISCUSSION: Councilor Navickas thought the law was very clear in its wording and was interpretable. It stated collocation shall be the preferred alternative and if the applicant was unable to collocate, they needed to show that other options were not feasible. He was confident in Council's interpretation. Councilor Silbiger agreed with the preferred design standard but disagreed with the study standard in the motion and read the following from the code: ~'Collocation feasibility study that adequately indicates collocation efforts were made and states the reasons collocation can or cannot occur." The applicant provided a collocation feasibility study that may have not indicated adequately but adequately indicated collocation efforts were made. It may not be a good standard, or what people wanted, but it was the standard the City set for itself. Councilor Chapman thought there was enough ambiguity and that his preference was to remand it to the Planning Commission but the City was out of time and that was not possible. Granting the appeal seemed like the best choice. Alternately, it was important to have good cell service for the citizens and the economy and the applicant should.reapply with a more complete application. Councilor Lemhouse eXplained when issues ASHLAND CITY COUNCIL MEETING October 19, 20 I 0 Page 6 of9 were addressed from a quasi-judicial point of view; it was based on fact and the code, not from an emotional standpoint. In a quasi-judicial role, he would interpret the code and apply the evidence to that interpretation. He understood but disagreed with Councilor Silbiger's point adding it did not allow for interpretation of feasibility in a stricter way. He thought AT&T interpreted the code in an honest way and provided a study they thought went in line with the code. Council made a decision on what feasibility meant, applied it to the evidence and it did not pan out for AT&T. Councilor Voisin noted code that stated the collocation study must demonstrate why collocation could not occur and Council determined that was a high standard. She found AT&T's feasibility study inadequate and was in favor of the motion. Mayor Stromberg also disagreed with Councilor Silbiger. Council would lose the ability to have a stricter interpretation of feasibility. Roll Call Vote: Councilor Chapman, Voisin, Navickas and Lemhouse, YES; Councilor Silbiger, NO. Motion passed 4-1. NEW AND MISCELLANEOUS BUSINESS 1. Will Council authorize the solicitation of a proposal for soil and groundwater monitoring on City owned property at 1097 'B' Street? Engineering Services Manager Jim Olson explained the City owned property at Mountain A venue and B Street comprised of four tax lots. Because one lot had a long history of petroleum usage, the Department of Environmental Quality (DEQ) tested the property and found diesel and gasoline hydrocarbons present and the decommissioned tanks were removed. The City hired CES consulting firm for further testing that revealed additional hydrocarbons 3-4 feet below ground in the soil and ground waters. CES conducted a preliminary site and development plan to remediate and determine the full extent of contamination that may include monitoring wells for quarterly reviews. Mr. Olson clarified these actions required the services of an Oregon registered geologist, a licensed well driller and soil matrix supervisor as well as several DEQ licenses and permits not present on City staff. Councilor Silbiger declared a potential conflict of interest. His family was interested in property near the location but did not think it would affect his judgment on the matter. Staff explained consultants would bid on four specific tasks. The first was additional testing and classification of the nature and extent of contamination. The second was dependent on the extent of contamination discovered during the first step and could include further testing. The third task was the risk base closure of the project. The fourth, if required was decommissioning the monitoring wells once the project was finished. The wells would be drilled on the contaminated property and strategically placed to determine if the hydrocarbons were leaking onto to adjacent properties. The consultants would be paid for what was delivered and funds were already in the budget for the project. Councilor Voisin/Chapman m/s to authorize the solicitation of proposals for a public works project. Roll Call Vote: Council Voisin, Navickas, Lemhouse, Silbiger and Chapman, YES. Motion passed. ORDINANCES. RESOLUTIONS AND CONTRACTS 1. Will Council approve Second Reading of ordinance titled, "An Ordinance Relating to Noise and Heat Pumps of Mechanical Devices and Amending AMC 9.08.170,9.08.175, and 15.04.185"? Councilor VoisinlLemhouse m/s to move this item to the November 2, 2010 meeting. Councilor Voisin withdrew the motion with Councilor Lemhouse's consent. Cate HartzelI/892 Garden Way/Addressed a section in the ordinance regarding noise. She had questions regarding gathering and sensitive areas and wanted to know if permits for the noise ordinance would have to be granted for people wanting to march. She thought the language of the ordinance was restrictive and had concerns on the impact to potential economic development or other socially diverse groups. She questioned if ASHLAND CITY COUNCIL MEETING October 19. 2010 Page 70f9 the ordinance would be complaint based and whether warnings or citations would be issued. She wanted the American Civil Liberties Union (ACLU) to review the ordinance for implications around free speech. Councilor VoisinlLemhouse m1s to move this item to the November 2, 2010 meeting. Voice Vote: Councilor Voisin, Navickas, Lemhouse and Chapman, YES; Councilor Silbiger, NO. Motion passed 4-1. 2. Will Council approve First Reading of an ordinance titled, "An Ordinance Relating to Public Contracting and Amending AMC 2.50.080, 2.50.090, 2.50.100, 2.50.120, and 2.50.130" and move the ordinance on the Second Reading? Public Works Director Mike Faught eXplained the ordinance made minor changes and clarifications in order to streamline the process. Instead of authorizing the issuance of solicitation documents, the Local Contract Review Board would approve the award of all contracts requiring formal competitive solicitation or bids. The dollar value for small procurements was inserted for easy reference by staff with a $5,000 limit. The Finance Director could endorse the amount of the contract if the contract amount exceeded the amount approved on the requisition documents. Findings regarding availability of City personnel and resources would be required for Intermediate Procurements for personal services. The ordinance would clarifY that all records shall be retained in accordance with Oregon Administrative Rules (OAR) 137-047-0620. Mr. Faught explained the section referring to local preference: "The City shall endeavor to utilize local suppliers of materials and services whenever practical and feasible while seeking to obtain the lowest and best responsible bid quotation or proposal," did not create a dramatic change from usual practices for the Public Works Department. Most of the work was done with local contractors. Engineering Services Manager Jim Olson added it depended on the size and complexity of the project as well. Standard Public Works projects require staff to take the lowest responsible bid but also require staff to advertise statewide for bids. Local was defined as in the Rogue Valley. Mr. Faught confirmed that Council would approve the award but not the solicitation, coming to Council for approval to send out a Request for Proposal (RFP) added time to the already lengthy process and took away flexibility. The nature of the RFP did not change the outcome of the project. Requests for Council approval on seeking RFP's did not occur prior the May 2010. The language was inadvertently changed and not intentional. RFPs were for projects already approved in the Budget and in the Capital Improvement Plan (CIP). Council had concern that this process would remove transparency in terms ofletting the public know what was happening. Also, that Council would not be apprised of the criteria staff was using as they set up the RFP. Councilor Chapman addressed language in 2.50.120 Personal Service Contracts A. that read: "A personal service contract that does not exceed $35,000 may be awarded by direct appointment. Personal Services Contracts that are fo'r contract amounts greater than $35,000 but less than $75,000 shall follow the process for Intermediate Procurements as outIine'above. In addition, for Intermediate Procurements, the Puhlic Contracting Officer shall make findings the City personnel are not available to perform the services, and that the City does not have the personnel or resources to perform the services required under the proposed contract," and thought Council should receive findings on contracts below $35,000. Councilor Lemhouse/Silbiger m1s to approve first reading of ordinance and set the matter for second reading. DISCUSSION: Councilor Lemhouse supported the changes to the ordinance and the request for findings on contracts under $35,000. He did not agree with Council authorizing solicitations. It slowed the process and bordered micro managing. Transparency occurred when Council reviewed the RFP for approval. Councilor Voisin thought having Council in at the beginning could avoid potential errors found during the award. It was prudent for the Council and public to know what was going out for bid. She understood many awards were perfunctory and could be included in the Consent Agenda. ASHLAND CITY COUNCIL MEETING October 19. 2010 Page 8 of9 Councilor Chapman/Lemhouse mfs to amend motion to include directing the attorney to bring back language clarifying the intent of the Council to require findings that City personnel are not available to perform the services for contracts between $5,000 - $75,000. Voice Vote: all AYES. Motion was amended. Continued Discussion on amended motion: Councilor Navickas thought it was a more efficient use of staff time to have the correct RFP. There would be circumstances where Council could adjust the RFP at the beginning to ensure accuracy and that the bid was in the Council's best interest. It was also important for transparency and knowing what was moving forward. Mayor Stromberg noted staff has taken the initiative to bring Council projects that might be sensitive. Councilor NavickasNoisin m1s to amend the motion and remove item C. under Section 2.50.080 and maintain the current language under C. and D. Roll Call Vote: Councilor Voisin and Navickas, YES; Councilor Lemhouse, Silbiger and Chapman, NO. Motion fail~d 2-3. Roll Call Vote on amended motion: Councilor Lemhouse, Silbiger and Chapman, YES; Councilor Voisin and Navickas, NO. Motion passed 3-2. 3. Will Council approve First Reading of an ordinance titted, "An Ordinance creating a new Chapter 13 relating to the Advanced Financing of Public Improvements" and move the ordinance on to Second Reading? Public Works Director Mike Faught explained there were times when a developer is required to install a larger capacity or public facilities to meet the demands of future development. Currently there were two methods for charging benefited owners their share of system improvements, one was System Development Charges (SDC) and the other was forming a Local Improvement District (LID). Advanced Financing was a method to pay for the project in advance and collect funds when the benefited property owner hooked into the public improvement. Staff had reviewed the proposed language that addressed the 7%. New language compartmentalized the interest into four categories. One category addressed interest based on City issued municipal bonds. Category 2 applied when a private developer used its own funds to construct improvements. Category 3 would apply if the City financed the project from its own cash reserves. The fourth category allowed Council to modifY its impact on a case-by-case basis if inequities were created through the implementation of categories 1-3. Advanced Financing pertained to projects not on the SDC eligible project list and were a way to capture funds for the benefited share not previously captured. Developers would collect from benefited owners for 10 years after project completion with the possibility to extend to 20 years. The City could also assume the financial responsibility for building out and subsequently collect from benefited owners in the same manner. Advanced Financing was a tool that gave the City an opportunity to build infrastructure and recoup funds as people start building in the area. . City Recorder Barbara Christensen noted 13.30.050 C. Collection stated the City Recorder would place a lien on the property then file it with City lien dockets and clarified liens were actually filed with Jackson County. The City did not collect on LID liens until there was activity on the property. She requested more information on how Advance Financing liens would be handled, recorded and tracked. Councilor Chapman/Lemhouse m/s to approve first reading of ordinance and set second reading for November 2, 2010. DISCUSSION: Councilor Navickas did not think it was appropriate to pass first reading on an ordinance when there were unresolved issues. The public needed the opportunity to review changes prior to second reading. Roll Call Vote: Councilor Navickas, Lemhouse, Silbiger, Chapman and Voisin, ASHLAND CiTY COUNCiL MEETING October 19. 2010 Page 90f9 YES. Motion passed. OTHER BUSINESS FROM COUNCIL MEMBERSIREPORTS FROM COUNCIL LIAISONS ADJOURNMENT Meeting was adjourned at 9:35 p.m. Barbara Christensen, City Recorder John Stromberg, Mayor CITY OF ASHLAND ASHLAND PLANNING COMMISSION REGULAR MEETING MINUTES August 10, 2010 CALL TO ORDER Chair Pam Marsh called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers, 1175 East Main Street. Commissioners Present: Larry Slake Michael Dawkins Dave Dotterrer Pam Marsh Debbie Miller Melanie Mindlin Mike Morris John Rinaldi, Jr. Staff Present: Sill Molnar, Community Development Director Maria Harris, Planning Manager April Lucas, Administrative Supervisor Absent Members: None Council Liaison: Eric Navickas, absent ANNOUNCEMENTS Community Development Director Sill Molnar announced the City Council's comments and resolution regarding Regional Problem Solving (RPS) will be presented at a public hearing before the Jackson County Planning Commission at 9:00 a.m. on Thursday, August 12. Commission Chair Pam Marsh announced the vacancy on the Planning Commission and encouraged interested citizens to submit applications to the Mayor's office. CONSENT AGENDA A. Approval of Minutes 1. July 13, 2010 Planning Commission Minutes Commissioners Miller/Dotterrer mls to approve the Consent Agenda. Voice Vote: all AYES. Motion passed 8-0. PUBLIC FORUM No one came forward to speak. OTHER BUSINESS A. Approval of Findings for Planning Action #2010-00582,1405 Tolman Creek Rd. Commissioners Dotterrer/Rinaldi mls to approve the Findings for Planning Action #2010-00582. Voice Vote: Commissioners Morris, Rinaldi, Blake, Miller, Mindlin, Dotterrer and Marsh, YES. Commissioner Dawkins, NO. Motion passed 7-1. B. Overview of Pedestrian Node Project. Planning Manager Maria Harris presented an overview of the City's pedestrian node project. She explained this project comes from the "string of pearls" concept that was presented at an arterial design workshop that occurred in September 2007. Ms. Harris noted the importance of improving the safety and mobility for pedestrians and motorists and listed the elements for great pedestrian streets as: good places to sit, transit stop amenities, a network of bike routes and parking, a high degree of transparency on the ground floor of buildings, continuous building walls, and creating private/public open spaces, Ashland Planning Commission August 10,2010 Page 1 013 Ms. Harris provided the history of this grant. She explained the Planning Division originally submitted a grant pre-application to the state for the Pedestrian Node Project, but was later asked to combine this with the Public Works Department's Transportation System Plan (TSP) project. Staff complied and in June 2009 the City received a state grant that incorporated the Pedestrian Node project into the TSP project. She clarified the Public Works Department is managing the overall project, however the Planning Commission will be very involved in the TSP update and the Planning Division will be handling the Pedestrian Node portion (Task #6). Ms. Harris listed the intersections identified for the Pedestrian Node project as: 1) East Main Street and North Mountain Avenue, 2) Walker Avenue and Ashland Street, and 3) Tolman Creek Road and Ashland Street. She also stated these future nodes share common characteristics including: 1) intersections include one of Ashland's boulevards, 2) there is an existing auto-oriented development pattem, 3) there are undeveloped and re-clevelopable sites, 4) there are existing bus lines, 5) there are commercial and community oriented uses near the intersection, and 6) there is currently zoned commercial or multi-family residential. Ms. Harris also touched on the project objects, scope of work, and the upcoming meeting schedule. Staff was asked to comment on why the Tolman Creek Rd/Ashland St intersection was selected instead of the intersection of Siskiyou Blvd and Bridge. Mr. Molnar clarified because of budget constraints, there was not adequate funding to include all four intersections. Ms. Harris noted the development potential for the 3 lots that were selected, and it was clarified the Siskiyou Blvd intersection was removed from this project since this could have conflicted with the study being done as part of the SOU Master Plan. Commissioner Marsh recommended they discuss the public meeting schedule for the pedestrian node element. She questioned who will plan and run these meetings and stated she would like for the commission to take on more ownership with this project. Marsh proposed a subcommittee of the Planning Commission be selected to flush out some of these details. General support was voiced for this suggestion and the commissioners shared their input. Commissioner Dotterrer suggested the subcommittee could help assemble the comments from the public meetings and recommended the commission vote on meeting minutes for those workshops to ensure the outcomes are accurately captured. Commissioner Miller suggested examples of pedestrian node projects be presented at the public meetings and recommended they allow citizens to comment on how this project might affect them. Commissioner Mindlin voiced her concern that the public meetings will be more of a presentation format and would like to make sure the public influences the outcome. Ms. Harris clarified the consultant's will not be coming to the first public meeting with a set of schemes. Commissioner Miller recommended they have a good amount of media coverage, and recommended they get the word out early to create buzz. Commissioner Mindlin commented that there ' is a huge amount of education needed for the public to understand why the City is doing this project and stated it would be great to get this information out in advance of the meetings. Commissioner Marsh asked for volunteers to participate on the subcommittee. Commissioners Rinaldi, Miller and Mindlin were selected to work with staff in regards to the public workshops. C. Approval of changes to Planning Commission Rules of Conduct/Discussion of Chair and Vice Chairs for remainder of 2010 Commissioner Marsh noted the Rules document contained in their packet materials contains an error and corrected copies were handed out at the beginning of the meeting. Staff clarified the error was regarding the Commissions ability to make changes to the City's Comprehensive Plan. The old version states any changes have to be approved by the majority of members on the commission, and the new language states only a simple majority of those present is now needed. Commissioner Dotterrer questioned the language in section 6.3(a)(i) which states a request for reconsideration shall be made at least 15 days prior to the commission's next regular meeting. He asked if this places a burden that can't be met since there is typically only 14 days between meeting dates. Mr. Molnar clarified staff typically brings findings before the commission 30 days after the decision is made, and commented that he believes the 15-day timeframe was selected in order to have adequate time to evaluate the request and notice the meeting. He stated Dotterrer raises good question and recommended this item be postponed so that staff can compare the language in the Rules document with the requirements in the Land Use Ordinance. Marsh agreed and recommended this item come back at a future meeting. Ashland Planning Commission August 10, 2010 Page 2 of 3 Commissioner Marsh noted the new procedures change the timing of the chair selection, which previously has taken place in June. She clarified the new procedures state the officers will be selected at their first meeting in January and asked whether the commission would like to elect interim chairs. Support was voiced for extending the terms of the commission's existing officers. Commisioners Mindlin/Rinaldi mls to extend the terms of the current officers until the elections in January, Voice Vote: all AYES. Motion passed 8-0. Commissioner Marsh recommended the Commission start thinking about their annual retreat, which is typically held in the 'fall. Several possible dates were mentioned. The commissioners were asked to email staff the dates they would be unavailable and Marsh stated she would work with staff and send out options. ADJOURNMENT Meeting adjourned at 8:10 p.m. Respectfully submitted, April Lucas, Administrative SupetVisor Ashland Planning Commission August 10, 20tO Page 3 of 3 CITY OF ASHLAND ASHLAND PLANNING COMMISSION STUDY SESSION MINUTES September 28, 2010 CALL TO ORDER Chair Pam Marsh called the meeting to order at 7:00 p.m. in the Civic Center Council Chambers, 1175 East Main Street. Commissioners Present: Larry Blake Michael Dawkins Dave Dotterrer Pam Marsh Melanie Mindlin Mike Morris John Rinaldi, Jr. Staff Present: Bill Molnar, Community Development Director Maria Harris, Planning Manager Brandon Goldman, Senior Planner April Lucas, Administrative Supervisor Absent Members: Debbie Miller Council Liaison: Eric Navickas ANNOUNCEMENTS Community Development Director Bill Molnar noted the Commission's annual retreat has been scheduled for Saturday, January 8, 2011. He also noted the on the record appeal of AT&T's application will be held next Tuesday before the City Council. Council Liaison Eric Navickas noted the City Council approved a feasibility study to look into urban renewal districts and tax increment financing; and noted the Planning Commission would be involved in this process if the Council decides to move forward. He commented briefly on this concept and clarified the Council is considering this type of financing for improvements to the railroad property, downtown, or the Croman Mill site. PRESENTATIONS A. Public Meeting Procedures/Ethics City Recorder Barbara Christensen provided a presentation on public meetings law, public records law, and govemment ethics. The following is a summary of the key items presented by Ms. Christensen: o All meetings must be open to the public. o If a quorum is not present, no meeting can be held and the members should go home. o Meeting minutes must include: members present, all motions and measures proposed, the result of all votes, the substance of any discussion, and a reference to any documents discussed. They do not need to be verbatim. o Every person has the right to inspect public records and there is very little that is exempt from public records law. o All of the commissioners are considered "public officials" and it is their duty to act in the public's best interest. o An "Actual Conflict of Interest" is defined as: When the action taken by a public official WOULD affect the financial interest of the official, the official's relative, or a business in which the official or a relative is associated. o A "Potential Conflict of Interest" is defined as: When the action taken by a public official COULD affect the financial interest of the official, the official's relative, or a business in which the official or a relative is associated. o Officials must publicly announce the nature of a conflict of interest before participating in any official action on the issue. Ms. Christensen recited the "6 Levels of Decision Making" and concluded her presentation by encouraging the commissioners to work towards the public trust and to remember who it is they represent. Ashland Planning Commission September 28.2010 Page 1 of 2 Commissioner Marsh asked about financial reporting requirements and Ms. Christensen clarified this is now done annually each'April instead of quarterly. B. Copenhagen Bicycling and Pedestrian Facilities The Planning Commission watched two short videos on the bicycle and pedestrian facilities in Copenhagen, Denmark. OTHER BUSINESS A. PC Subcommittee Recommendations on the Pedestrian Places Public Process Commissioner Marsh noted the Planning Commission subcommittee on the Pedestrian Places public process met twice and have drafted a 'Publicity and Workshop Framework" document. Commissioners Mindlin and Rinaldi provided an overview of their work and highlighted the following items: o Educating the public will be an important component, including explaining the benefits and the reasons for engaging in this process o Changed the name of the public sessions from "Open Houses" to "Workshops" o Changed the title of the project from 'Pedestrian Nodes" to 'Pedestrian Places" o Recommended Planning Commissioners facilitate breakout groups at the workshops Planning Manager Maria Harris requested the commissioners give their preference on the timing of the facilitation training that will need to occur before the first workshop. The Commissioners went around the room and consensus was reached to meet a half-hour before the October 26 Joint Study Session. The Commission reviewed the Publicity and Workshop Framework document developed by the subcommittee and indicated who would be responsible for each task. It was decided that staff would handle the following items: 1) publish a workshop notice in the CitySource, 2) send meeting invites to properties within 200 ft, 3) send meeting invites to businesses in the area, 4) create a project webpage on the City's website, 5) post news items to the City's homepage, 6) draft a press release, and 7) create a slide for RVTV channel 30. Ms. Harris stated overall this is an ambitious list in terms of work for staff, but they will do as much as possible while balancing their other projects and demands. Marsh voiced her support for the increased publicity outlined in the framework document and requested staff email the commissioners a copy of the press release and any other documents they produce. Commissioner Mindlin noted the radio and television component and stated she would want some talking points before she felt comfortable speaking with the media. Ms. Harris noted that staff has already begun working on these, however the group agreed it was more appropriate for the general media and Jefferson Exchange interviews to occur after they are further along in the process. Commissioner Marsh stated she would handle the letter to the editor, and Commissioner Dotterrer offered to make an announcement and distribute handouts at the Ashland Rotary meetings. Commissioner Morris was asked to investigate the feasibility of approaching the Chamber, and the other commissioners were asked to make announcements and handout flyers at their respective service clubs. Marsh stated she would post workshop flyers at local bicycle and running shops, and suggested they approach the Daily Tidings about publishing an article. The group also briefly discussed the possibility of extending the notice area and mailing postcards instead of letter-sized flyers, ADJOURNMENT Before the commission adjourned, Ms. Harris noted the Proclamation for Community Planning Month that will be read by the City Council at their next meeting and highlighted the activities staff is conducting to promote this. ' Meeting adjourned at 8:45 p.m. Respectfully submitted, April Lucas, Administrative Supervisor Ashland Planning Commission September 28. 2010 Page 2 of 2 I. CALL TO ORDER: 6:04 PM by Chair Eric Heesacker. II. APPROVAL OF MINUTES: Minutes of July 15, 2010 were approved as corrected. m. PUBLIC FORUM: Nat Broom, TDM Planner for RVTD, reminded the Conunission of the International Walk + Bike School day on Wednesday, October 6, 2010 and the first ever Southern Oregon Walk + Bike Sununit to be held October 15,2010 at the Rogue Valley Country Club. The Sununit will include lunch and transportation- related sessions. Kat Smith will follow up with an email. At the next Conunission meeting Smith will update the Conunission on the Safe Routes to School grant fupding. Lastly, Broom told the Conunission that Route 24 to RVMC had new extended hours running from 6:00 AM to 6:00 PM. IV. ADJUSTMENTS TO THE AGENDA: Sonuner reconunended that the Election of the Vice Chair be tabled until more Conunission members were present. Commission agreed. Heesacker added "Commission Emails from Ryan and Swales" to the agenda. V. ACTION ITEMS: A. Transportation System Plan (TSP) Update . Faught referred to a recent phone conference with Planning Commissioner Chair Pam Marsh as well as Heesacker. It was decided that the Chairs for each Conunission would rotate (beginning with Marsh) at the joint meetings. The upcoming joint meeting (August 24'h) would include an overview of the TSP including Task 7 deliverables and timelines. Faught encouraged all Commissioners to attend. Sonuner asked about the transportation-related Comprehensive Plan Goal: Conunercial Freight and Passenger Section. She noted the mention of air, water and pipeline movement of goods. Faught said this was standard language but that air, via the airport, was a very important mode of transportation as evidenced by David Wolske's (liaison to the Airport Conunission) presence at our meetings. Swales noted the mention ofAlta Planning and Design and OT AK as additional consultants. Faught said they were Kittelson & Associate's subconsultants and more information would be given at the joint meeting. Swales asked who would reply to citizen comments submitted via the website and wondered about the lack of Survey Monkey. Kittelson would respond to email comments and the survey was delayed until October so that more citizens would be back from vacations. B. Interchange Area Management Plan (lAMP) Faught reported that the work on the Exit 14 Bridge had begun. As a rule the lAMP would be finished before construction began; however, ODOT extended the deadline to September 30th so the City could C:\DOCUME-I\shipletd\LOCALS-l\Temp\XPGrpWise\8 19 10 TC Minutes.doc Page I of5 submit its response to ODOT's proposal to eventually extend a median on Ashland Street from Exit 14 to Tolman Creek Road. The draft lAMP proposed to extend the median from the southbound ramp terminals to Tolman Creek Road when either the average daily traffic exceeds 28,000 vpd or the annual accident rate in the area exceeds the statewide average rate for similar roadways. Staff agreed with the proposal to erect a median from Exit 14 to Washington Street (currently being constructed as part of the bridge project); however, the proposed extended median would limit access to Washington Street and the Croman site. Faught asked Kittelson to review the technical aspects of the proposal as an extended median would impact Ashland's transportation system long term. Swales suggested researching a road diet and the use of roundabouts. John McDonald, ODOT TGM Project Manager, noted that roundabouts worked when all four legs of an intersection had a similar amount of use; Washington Street travelers would have a difficult time merging with the steady traffic on Ashland Street. Safety was the main reason for the median. McDonald said that currently this section of Ashland Street was considered the worse in the state. He added that the trigger figure of 28,000 vpd doubled the existing volume and, with Ashland's low growth policies, therefore may not happen for 20+ years or ever. Swales noted a decrease in volume in the last six years and recently learned that two lanes could in theory accommodate 20,000 vpd. Faught added that DKS Associates, consultants who wrote the Croman Site traffic impact analysis, noted that if Washington Street was signalized, no improvements would be necessary for Tolman Creek Road. Staff would like to avoid a major expansion of the Ashland / Tolman Creek intersection. McDonald said any request for a signal at Washington would not be approved. The location of the Tolman Creek signal currently does not meet ODOT standards. A signal at Washington Street would result in three signals within a 1. mile. Sommer asked if Kittelson's review would come to the Commission before the City Council. Faught said yes, if time permits. ODOT would have to extend their deadline to October 5th to allow for both Commission and Council approval. She asked if affected business owners signed off on the current median extension to Washington Street. McDonald said that although some owners did not like it, they accepted it. He added that when the lAMP was ultimately adopted by the Oregon Transportation Commission (OTC), the City's planned improvements must then be consistent with the plan. Mike Baker, ODOT planner, said that the lAMP could be amended in the future as conditions change. Sommer asked if the median would be landscaped. McDonald said the median was too narrow. Burnham asked if the City could oppose the expansion of the median to Tolman Creek Road. Faught said the City Council could direct the <;:ommission to directly lobby the OTC; however, the need to lobby would be dependent upon whether Kittelson agreed with Staffs opposition to the median expansion. He added that thus far ODOT had been agreeable to work with. C. Two Year Proiect List Feasibility Discussion Olson, per the Commission's request, prioritized the results of the forced vote process and recommended decreasing the number of goals. He reviewed each goal. I. Audible Signals - Budget money had been found for downtown signals. Bumham heard complaints about the loud noises they make. Corinne Vieville, was researching different sound options. 2. Adding Bike Path Elements to Highway 66 Overpass - Olson thought this goal could be planned and designed, but not constructed in the two year timeframe. Sommers said currently many people walk and bike to the YMCA against traffic. Burnham thought the challenge was to'cross the railroad tracks. Ryan reminded Commissioners that there was a pedestrian refuge across from the tire station for a planned crosswalk. Olson noted that crosswalk would have to be installed with beacons and other features to make pedestrians visible at the overpass. C:\DOCUME-l\shipletd\LOCALS-I\Temp\XPGrpWise\8 1910 Te Minutes.doc Page 2 of 5 3. Pros and Cons of Relocating-Bike Racks - Staff and the Subcommittee finished an inventory of existing and recommended bike racks. Only one on-street option was considered safe that is in front of the library on Siskiyou. Olson suggested changing the goal to "Increasing Bike Parking in Downtown Core." Swales noted that Arts Commission had ideas for artistic bike racks. Faught agreed and would ask the Arts Commission for suggestions. 4. Research Signal Detector Retrofits to Accommodate Bike Detection - Olson reported that high density, concentrated loops were expensive and would need to be phased in. He suggested purchasing one as an experiment. 5. Faith Avenue 1 Ashland Street Intersection Improvements - All agreed this was an important goal. 6. Make Will Dodge Way More Multi-Modal- This goal was in process and includes meeting with business owners, replacing broken curb sections, crosswalk along First Street, ADA ramp on First Street, paving overlay, pavement markings and signage. Swales thought that with the sale of the parking lot, Will Dodge way could be beautified as a courtyard. Olson reported this project was initiated by the Police Department. Their goal was to reduce crime and increase safety. Faught added that colored slurry seal could be considered at a latter date. Project cost is $75,000 using city crews. Some stamped concrete would be used at the yogurt shop. 7. Evaluate Delivery Vehicle Patterns in the Downtown Core - Olson suggested the Commission take the lead on this goal by contracting owners and suppliers for feedback. Swales wondered if the truck idling ordinance was being enforced. Motion: Burnham moved to accept staffs recommendation. Ryan seconded the motion. Discussion: Sommer suggested combining 5 and 2 and reworking 3. Ryan thought the Faith 1 Ashland intersection project too big for a two year goal. Sommer doubted Commissioners would take the lead on Goal 7. Ryan withdrew second. Burnham withdrew motion. Motion: Sommer moved to adopt three goals: I) Connect Bike Path to Highway 66 Overpass (including feasibility of crossing railroad tracks; 2) Faith Av IAshland St Intersection Improvements; and 3) Increasing Bike Parking in the Downtown Core (including reviewing design options with the Art Commission). Burnham seconded the motion and it passed unanimously. D. Status of Sub-Committee Recommendations of 8/5/1 0 Olson presented the staff report apologizing for any hurt feelings over the wording of his memo. He reminded the Commission of their role and the veto 1 call up power of the Public Works Director. The Director then asked the full Commission to reconsider the Subcommittee's recommendation to remove the parking restriction on Bridge Street. Olson reported that Faught vetoed the recommendation to change the parking on Hargadine and tabled a final decision until the appropriate time within the TSP update. Faught accepted the First Street parking changes as specified in the Subcommittee minutes as well as the no change decision on Granite Street parking. Olson received more than the usual public response for parking changes on Bridge Street which supports 570 vpd on the weekend and 940 vpd on weekdays. He noted that skinny street standards are only effective with adequate queuing space. He reviewed the Subcommittee's decision: "remove the west side parking prohibition (8:00 AM to 4:30 PM except Sundays and holidays) from June 15 to September 15 and create one or more two hour spaces near the south end of the block adjacent to any commercial properties." Faught asked for reconsideration because the action would set a precedent, cause extra work for the eight person street crew and had Fire Department opposition both presently as well as back in 1990. Olson reminded the Commission that no one would be available to enforce the C:\DOCUME-l\shipletdILOCALS-I\Temp\XPGrpWise\8 19 10 TC Minutes.doc Page 3 of5 recommended two hour parking. Chapman asked if, because the prohibition ended at 4:30 PM, the Fire Department opposed any west side parking. Olson said that after hours parking was less dense so Fire Department had no issue. Sommer agreed with Staff's reasoning. Swales said conditions on Bridge Street had changed as recreational vehicles were now prohibited to park on the street and no fireworks were allowed. He thought other streets felt the impact of parking congestion due to their location (park, SOU, library, etc.) and that drafting a citywide policy would be the best way to avoid discrimination. Ryan, a Subcommittee member, gave the rational for his vote. He thought his decision could be vetoed and felt safe in that knowledge. A citizen sought relief and he took his duty as a citizen advocate seriously. The removal of some parking restrictions could be a one year experiment. Similar streets had parking on both sides and he was attempting a compromise. He thought the sample size of up to 15 people was too small to say stakeholders were against the request to relax the parking restriction. Chapman asked why Garfield had parking on both sides. Olson noted that Garfield,Street was 1.5' J wider than Bridge Street. Motion: Swales moved not to reconsider the Subcommittee's recommendation regarding Bridge Street letting the Subcommittee's recommendation stand. Discussion: Burnham agreed with the need for a citywide policy to use when similar requests come before the Commission. Ryan would like to see a letter or memo confirming the Fire Department's recommendation. Amended motion: Swales moved to amend the motion to include"... unless a recommendation against removing the parking prohibition fr~m the Fire Department was received." Ryan seconded the amended motion. Discussion: Sommer favored residential permit parking and suggested leaving the parking prohibition as is until such a program was in place. Burnham, the Chair of the Subcommittee, heard the testimony of property owners, the recommendation from the Fire Department as stated by staff and voted no. He was also in favor of a citywide street parking policy. Heesacker recommended further amending the motion to include the development of a citywide policy. Swales thought that the speculative issues addressed in the testimony of property owners should not be used in making decisions. Chapman suggested tabling this issue until a representative from the Fire Department could address the Committee. Vote on Amendment: Commission voted for the motion four votes to one. Amended motion passed. Vote on Motion: The motion not to reconsider the Subcommittee's recommendation regarding Bridge Street and letting the Subcommittee's recommendation stand unless a recommendation against removing the parking C:\DOCUME-l\shipletd\LOCALS-I\Temp\XPGrpWise\8 19 10 TC Minutes.doc Page 4 of5 prohibition was received from the Fire Department passed three votes to two. E. Truck Route Designations The Council recently directed the Commission to review AMC 11.60 Truck Routes ordinance noting that the reference to state code was outdated. Swales noted the ordinance was similar to the truck idling ordinance that came before the Traffic Safety Commission. Staff recommended tabling this agenda item for further research. Commission agreed. VI. NON ACTION ITEMS A. MPO Update (Chapman) Report tabled. B. Planning Commission Update (Sommer) Sommer reported that at the Planning Commission reviewed the portion of Task 6 (TSP update) on the topic of pedestrian nodes. The fourth site was eliminated (Bridge and Siskiyou) leaving East Main / North Mountain, Walker / Ashland Street and Tolman Creek / Ashland Street. Public workshops regarding the pedestrian nodes would be held in October and December preceded by a private stakeholders meeting. A subcommittee was chosen to work with staff to plan the workshops and ensure accurate minutes. Burnham expressed fiustration that the Transportation Commission was not involved in the selection of pedestrian nodes. Faught explained the history of how the idea developed as part of two separate Transportation Enhancement grant applications. Swales added that the ptanning Commission's emphasis was on land use on private property. These nodes would be denser in population allowing for more public transit. C. Additional Bicvcle Parking on Main Street Update Update tabled. D.Car Free Dav (Rvan) Ryan reported on the status of Car Free Day planning. He now had the help of three members of the Jackson County Pacific Greens, a non-profit political organization and asked the Commission for ideas to recognize them. Commission had no objection to recognizing them. Slocum reported that the parade permit was approved. Ryan would like the police escort to be a bicycle escort. The event will be advertised on the City website however the planning committee missed the deadline for inclusion in the City Source. E. Commissioner Emails - Rvan and Swales Heesacker responded to Ryan's letter to Mayor Stromberg dated August 18th Ryan was offended by the staff memo to reconsider the Bridge Street parking prohibition. Heesacker thought there was a miscommunication between Staff and Commissioner Ryan. Chapman suggested that next time Ryan contact Staff directly then come to the meeting to correct the record. Ryan announced that he had no further issues with Staff. VII. INFORMATIONAL ITEMS & COMMISSIONER COMMENTS: None. VIII. ADJOURN: 8:33 PM Respectfully submitted. Nancy Slocum, Accounting Clerk I C:\DOCUME-l\shipletd\LOCAI..5-1\Temp\XPGrpWise\8 19 10 TC Minutcs.doc Page 5 of5 CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: Findings for AT&T WCF Appeal (pi\, #2009-01244) November 2, 2010 Primary Staff Contact: Bill Molnar Community Development E-Mail: bill{al.ashland.or.us N/ A Secondary Contact: Derek Severson Martha Bennet Estimated Time': 10 minutes Question: Does the City Council wish to adopt the findings prepared by staff to formalize the Council's decision on the AT&T Wireless Communication Facility appeal? Staff Recommendation: Staffrecommends that the Council adopt the attached findings. Background: At its October 19th, 2010 meeting, the City Council granted an appeal by Roderick J. New10n of the Planning Commission's previous approval of a wireless communications facility installation on the Ashland Street Cinema at 1644 Ashland Street. The Council found that the "Design Standards" relating to "Preferred Designs" contained in AMC 18. n.180.C.2 represented a significantly more rigorous standard than had been applied by the Planning Commission and that the applicants failed to meet their burden of proof with regard to these standards. The Council further found that there was substantial evidence in the record to uphold the Planning Commission's decision on the three other grounds for appeal. Related City Policies: Not applicable. Council Options: I. Adopt the findings. 2. Modify the findings. The 120-day deadline for a final decision of the City is November 2,2010. Findings must be adopted and signed at tonight's meeting. Potential Motions: I. Move to adopt the findings as presented. 2. Move to adopt the findings with the following modifications.... Attachments: Proposed findings detailing the October 19th, 2010 decision by the City Council The full record of Planning Action #2009-01244 is available on-line at: http://www.ashland.or.us/1644ashland . Page 1 of 1 r~' BEFORE THE CITY COUNCIL OF THE CITY OF ASHLAND November 2nd, 2010 IN THE MATTER OF AN APPEAL ON THE RECORD OF THE PLANNING COMMISSION'S APPROVAL OF PLANNING ACTION #2009-01244, A REQUEST FOR SITE REVIEW APPROVAL AND CONDITIONAL USE PERMIT AND ADMINISTRATIVE VARIANCE TO ALLOW THE INST ALLA TION OF ROOFTOP WIRELESS COMMUNICATIONS FACILITIES ON THE EXISTING ASHLAND STREET CINEMA BUILDING LOCATED AT 1644 ASHLAND STREET AND AN ASSOCIATED GROUND-MOUNTED ACCESSORY EQUIPMENT STRUCTURE. APPLICANTS: Goodman Networks, Inc. for AT&T Wireless, LLC ) ) ) ) ) ) FINAL ) DECISION ) ) ) ) This matter came before the City Council as an appeal on the record pursuant to Ashland land Use Ordinance (ALUO, or AMC, Ashland Municipal Code) IS.10S.110. The Planning Commission approved a request for Site Review, Conditional Use Permit, and Administrative Variance to the Site Design & Use Standards to allow the installation of rooftop wireless communication facilities on the existing Ashland Street Cinema building on July 13, 2010. An appeal request was timely received on July 2S, 2010 from Christian E. Hearn, attorney for the appellant Roderick J. New1on. SCOPE OF THE APPEAL: ALUO IS.IOS.110.A.2 requires that each appeal set forth "a clear and distinct identification of the specific grounds for which the decision should be reversed or modified, based on identified applicable criteria or procedural irregularity." The four clearly and distinctly identified grounds for appeal in this case were: I) Failure to provide a collocation study and meet the design standards criteria showing how collocation cannot occur (ALUO IS. 72.ISO.B, and IS. 72.ISO.C.2); 2) Failure to demonstrate that the application meets a Conditional Use Permit Criterion pertaining to adverse material effects on livability within the impact area when compared to the target use (ALUO IS.104.050.C); 3) Failure to provide a lease with the application (ALUO IS. 72.ISO.B); and 4) Failure to meet the criteria for Administrative Variance to the required landscape buffer for the ground mounted WCF equipment structure (ALUO IS.72.090). The appellant also proposed to incorporate several other unspecified additional issues detailed in 2S pages of the nine sub-exhibits provided with the appeal. The Council finds that this attempt to incorporate additional appeal issues by reference to other documents is not a sufficiently clear and distinct identification of the grounds for which the decision should be reversed or modified based on identified applicable criteria or procedural irregularity as required in the code, and as such any additional issues from these sub-exhibits were not included as identified grounds for appeal. The Council finds that consideration of this appeal is therefore limited to the four appeal issues which were clearly and distinctly identified in the appeal request. {OOI18275; I IPA #2009-01244 November 2, 20 I 0 Page 1 A. OVERVIEW OF APPLICATION, RELEVANT APPROVAL CRITERIA and COUNCIL PROCEEDINGS: I) The subject property is identified as Tax lot #6800 of Map 39 IE 15 AB, located at 1644 Ashland Street and is zoned Commercial Retail (C-I). 2) The applicants requested Site Review and Conditional Use Permit approval to install rooftop wireless communications facilities (WCF) on the existing Ashland Street Cinema building located at 1644 Ashland Street, and to construct an associated ground-mounted accessory equipment structure. The proposed installation consists of 12 architecturally-integrated panel antennas. The application includes a request for an Administrative Variance from the Site Design and Use Standards' required landscape buffer for the ground-mounted accessory equipment structure. The subject property is located within the Detail Site Review Zone and the Ashland Boulevard Corridor, and the existing building is also subject to Additional Standards for Large Scale Projects. Site improvements are outlined on the plans on file at the Department of Community Development. 3) The criteria for Site Review approval are described in Chapter 18.72.070 as follows: A. All applicable City ordinances have been met or will be met by the proposed development. B. All requirements of the Site Review Chapter have been met or will be met. e. The development complies with the Site Design Standards adopted by the City Council for implementation of this Chapter. D. Thai adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. All improvements in the street right- of-way shall comply with the Street Standards in Chapter 18.88, Peiformance Standards Options. (Ord.2655, 1991, Ord 2836 S6, 1999) 4) The criteria for a Conditional Use Permit are described in 18.104.050 as follows: A. That the use would be in conformance with all standards within the zoning district in which the use is proposed to be located, and in conformance with relevant Comprehensive plan policies that are not implemented by any City, State, or Federal law or program. B. That adequate capacity of City facilities for water, sewer, paved access to and through the development, electricity, urban storm drainage, and adequate transportation can and will be provided to and through the subject property. e. That the conditional use will have no greater adverse material effect on the livability of the impact area when compared to the development of Ihe subject lot with the larget use of the zone. When evaluating the effect of the proposed use on the impact area, the following factors of livability of the impact area shall be considered in relation to the 100118275; 1 IPA #2009-01244 November 2, 2010 Page 2 target use of the zone: 1. Similarity in scale, bulk, and coverage. 2. . Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities. 3. Architectural compatibility with the impact area. 4. Air quality, including the generation of dust, odors, or other environmental pollutants. 5. Generation of noise, light, and glare. 6. The development of adjacent properties as envisioned in the Comprehensive Plan. 7. Other factors found to be relevant by the Hearing Authority for review of the proposed use. 5) The Development Standards for Wireless Communications Facilities are described in AMC l8.72.l80.C as follows: 1. General Provisions a. All facilities shall be installed and maintained in compliance with the requirements of the Building Code. At the time of building permit application, writ/en slatements from the Federal Aviation Administration (FAA), the Aeronautics Section of the Oregon Department of Transportation, and the Federal Communication Commission that the proposed wireless communication facility complies with regulations administered by that agency, or that the facility is exempt from regulation. b. All associated transmit/al equipment must be housed in a building, above or below ground level, which must be designed and landscaped to achieve minimal visual impact with the surrounding environment. c. Wireless communication facilities shall be exempted from height limitations imposed in each zoning district. d. WCF shall be installed at the minimum height and mass necessary for its intended use. A submit/al verifYing the proposed height and mass shall be prepared by a licensed engineer. e. Signage for wireless communication facilities shall consist of a maximum of two non-illuminated signs, with a maximum of two square feet each stating the name of the facility operator and a contact phone number. f Applicant is required to remove all equipment and slructures from the site and return the site to its original condition, or condition as approved by the Staff Advisor, if the facility is abandoned for a period greater than six months. Removal and restoration must occur within 90 days of the end of the 'six month period. 100118275; 1 IPA #2009-01244 Novemlier 2, 2010 Page 3 2. Preferred Desi$ms a. Where possible, the use of existing WCF sites for new installations shall be encouraged. Collocation of new facilities on existing facilities shall be the preferred option. b. If (a) above is not feasible, WCF shall be attached to pre-existing structures, when feasible. c. If (a) or (b) above are not feasible, alternative structures shall be used with design features that conceal, camouflage or mitigate the visual impacts created by the proposed WCF. d. If (a), (b), or (c) listed above are not fea~ible, a monopole design shall be used with the attached antennas positioned in a vertical manner to lessens the visual impact compared to the antennas in a plaiform design. Plaiform designs shall be used only if it is shown that the use of an alternate attached antenna design is not feasible. e. Lattice towers are prohibited as freestanding wireless communication support structures. 3. Landscaoinf!. The following standards apply to all WCF with any primary or accessory equipment located on the ground and visible from a residential use or the public right-o.f way a. Vegetation and materials shall be selected and sited to produce a drought resistant landscaped area. b. The perimeter of the WCF shall be enclosed with a security fence or wall. Such barriers shall be landscaped in a manner that provides a natural sight obscuring screen around the barrier to a minimum height of six feet. c. The outer perimeter of the WCF shall have a 10 foot landscaped buffer zone. d. The landscaped area shall be irrigated and maintained to provide for proper growth and health of the vegetation. e. One tree shall be required per 20 feet of the landscape buffer zone to provide a continuous canopy around the perimeter of the WCF. Each tree shall have a caliper of 2 inches, measured at breast height, at the time of planting. 4. Visual Imoacts a. Antennas, if attached to a pre-existing or alternative structure shall be integrated into the existing building architecturally and, to Ihe greatest extent possible, shall not exceed the height of the pre-existing or alternative structure. b. Wireless communication facilities shall be located in the area of minimal visual impact within the site which will allow the facility to function consistent with its purpose. c. Antennas, if attached to a pre-existing or alternative structure shall have a non- reflective finish and color that blends with the color and design of the structure to which it is attached. 100118275; 1 IPA #2009-01244 November 2, 2010 Page 4 d. WCF, in any zone, musl be set back from any residential zone a distance equal to twice its overall height. The setbdck requirement may be reduced if, as determined by the Hearing Authority, it can be demonstrated through findings of fact that increased mitigation of visual impact can be achieved within of the setback area. Underground accessory equipment is not subject to the setback requirement. e. Exterior lighting for a WCF is permitted only when required by a federal or state authority. f All wireless communication support structures must have a non-reflective finish and color that will mitigate visual impact, unless otherwise required by other government agencies. g. Should it be deemed necessary by the Hearing Authority for the mitigation of visual impact of the WCF, additional design measures may be required. These may include, but are not limited to: additional camouflage materials and designs, facades, specific colors and materials, masking, shielding techniques. 5. Collocation standards a. Each addition of an antenna to an existing WCF requires a building permit, unless the additional antenna increases the height of the facility more than ten feet. b. Addition of antennas to an existing WCF that increases the overall height of the facility more than ten feet is subject to a site review." (ORD 2802, S3 1997) 6) The criteria for an Administrative Variance to the Site Design and Use Standards are described in AMC 18.72.090 as follows: A. There is a demonstrable difficulty in meeting the specific requirements of the Site Design Standards due to a unique or unusual aspect of the proposed use of a site; B. Approval of the variance will not substantially negatively impact adjacent properties; C. Approval of the variance is consistent with the stated purpose of the Site Design and Use Chapter; and D. The variance requested is the minimum variance which would alleviate the difficulty. 7) The City Council, following proper public notice, held a public hearing on October 5th, 2010 to consider the appeal, at which time testimony was received and exhibits were presented. Deliberations for the action were continued until the next regular meeting of the Council on October 19th, 2010. At its regular meeting on October 19th, 2010 the City Council upheld the appeal on one of the four identified appeal grounds. Council overturned the Planning Commission's approval, and denied the application for Site Review, Conditional Use Permit and Administrative Variance to install rooftop wireless communications facilities and an associated ground-mounted equipment structure. 100118275; I IPA #2009-01244 November 2, 2010 . Page 5 As detailed more fully below, the City Council finds that the Planning Commission erred in its interpretation of the Development Standards for Wireless Communications Facilities in AMC 18. n.180.C.2.a, that the standards were substantially more rigorous than they had been interpreted to be in the Planning Commission's decision, and that the applicants failed to meet their burden of proof as to the design standards criteria with respect to collocation. References to the Planning Commission Record will be described herein by page number, preceded by the abbreviation "PCRec". B. COUNCIL FINDINGS ON APPEAL I. Procedural matters. a. Timeliness of applicant's submittal in response to appeal. The Council finds that written arguments were to have been submitted not less than ten days prior to the October 5th hearing, which in this case would have been no later than Monday, September 27'h, 2010 when calculated according to the methodology of ORS 174.210. For reasons that are not entirely clear, the applicant's representative has asserted that, despite timely mailing of notices by the City, they did not receive a copy of the appeal notice until Friday, September 24th, 2010. As a result, the applicant was not able to submit written arguments until Wednesday, September 29t\ 2010. In light of the applicant's substantial interest in the proceedings and the fact that the applicant did not receive the mailed notice until very near the submittal deadline, the Council finds that it would result in fundamental unfairness to exclude these written arguments on a mere technical violation and that acceptance of these written arguments does not prejudice the substantive rights of other parties. The Council therefore accepts the applicant's September 29th argument submittals. b. Asserted bias of Council members. During the Council hearing, a citizen asserted that Council members could be biased based on whether they were customers of the applicant AT&T for their cellular telephone service, and on whether as a result they perceived that in fact there were problems with poor cell phone coverage in the area subject to this application. During Council deliberations, each Council member stated for the record that their individual cell phone service would not be a basis for their decision, and that they were capable of and in fact would decide this application on its merits and were free from any asserted bias. 2. Teleconlmunications Law Standards. In addition to the specific standards in the AMC, Council notes the application of two standards of federal law with respect to applications to site WCF. First, the Council recognizes that the Telecommunications Act of 1996 expressly preempts local government regulation of the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply 100118275; 1 IPA #2009-01244 November 2, 2010 Page 6 with the FCC's regulations concerning such emiSSIOns [47 U.S.C. 9332(c)(7)(B)(iv)). The Council finds that perceived health impacts are included within this prohibition. The Council therefore concludes that testimony and evidence in this case concerning the environmental effects of radio frequency emissions are not a basis upon which Council can make a decision; as such, Council specifically declines to consider all such evidence in evaluating this application. Second, the City Council further finds that the application as detailed in the whole record is intended to supplement or enhance the applicant's own service network, which provides services already within the City of Ashland. Nothing within the record indicates that the applicants are seeking to address a significant service gap; in fact, the applicants explicitly acknowledged in the appeal hearing that they do not have a significant service gap in the area. 3. Findings with respect to AMC criteria. a. Collocation standards. As noted above, there are four specific grounds for appeal in this case. The first appeal ground asserts both that the applicant failed to provide a sufficient application in the first instance, violating AMC 18.n.180.8.6, and that to the extent the applicant's later submissions attempted to cure this defect, they were insufficient to meet the applicant's burden of proof under this criterion. The Council notes at the outset that the purpose of the application submittal requirement is to ensure that the application is sufficient in substance in order to allow for the evaluation of the application against the substantive criteria. AMC 18.n.l80.B's application submittal requirements are not stated as jurisdictional requirements. As such, the Council may not use these requirements as independent approval criteria against which the application must be measured. The applicant's initial submittal in this case was found to be insufficient by City staff, and was supplemented during the course of staffs review of the application. (PCRec 511, 769 and 1299, and pages immediately following each of these page numbers). Taken together, while as shown below the Council determines that the submittals are insufficient to meet the applicant's burden of proof on the applicable approval criteria, the submittals are sufficient to allow for review of the application against those standards. The substantive standards relevant to this appeal ground are found at AMC 18.n,180.C.2, "Preferred Designs". As articulated more fully below, Council finds that this standard is ambiguous on its face, and that it must therefore be interpreted by the Council using its text, context and apparent purpose. The City Council finds that with regard to the primary ground for appeal, "Failure to provide collocation study and to meet the design standards criteria for collocation," the Planning Commission erred in its interpretation and application of the Development Standards for Wireless Communication Facilities contained in ALUO 18. n.180,C. More specifically, the City {OOI18275: IIPA #2009-01244 November 2,2010 Page 7 Council finds that the "Preferred Designs" are intended to provide a significantly more rigorous standard of review than was applied by the Planning Commission. The Council finds that the Preferred Designs standards of ALUO 18,n.180,C are intended to be viewed within a broader context as a ladder or stepped hierarchy, and that these standards are to be more rigorously applied to regulate the placement, appearance and impact of wireless communication facilities in a manner which minimizes visual and aesthetic impacts to the greatest extent possible in keeping with their declared purpose imd intent described in ALUO 18, n.180.A, while providing residents with the ability to access and adequately utilize the services that these facilities support. The Council finds that the application ofthese standards proceeds on a determination of feasibility, and that "feasible" is not explicitly defined within Ashland's Land Use Ordinance. The Council therefore finds that "feasible" shall be defined as "capable of being done, executed or effected; . possible of realization." The Council further finds that a demonstration of feasibility requires a substantial showing, and that an applicant cannot deem an alternative, such as a collocation site, to be not feasible simply because it would be difficult for the applicant to make use ofthat alternative, As such, an application must first provide a collocation feasibility study as required in ALUO 18.n.180.B.6 which "adequately indicates collocation efforts were made and states the reasons collocation can or cannot occur." When considered within the hierarchy of preferred designs in ALUO 18. n.180.C this study and other materials within the record must demonstrate not merely that the preferred option of collocation in ALUO 18.n.180.C.2.a is not ideal in meeting the applicants' objectives, but that collocation at the site is not feasible - as defined above - before the applicant may proceed to the next available option of placement on a pre-existing structure. The study also must demonstrate that the applicant made a reasonable effort to locate other potential collocation sites that would meet the applicant's service objections and clearly identify why those sites also are not feasible. The City Council finds that when viewed in light of this more rigorous application of the standards, the application as contained in the whole record fails to meet the burden of proof in demonstrating that collocation is not feasible. The Council finds that while the applicants attempted to better address the feasibility of collocation with incremental submittals through the application review and hearing process, the application materials provided are on the whole weak and contradictory; fail to clearly identify a consistent service objective and provide clear analysis of the feasibility of collocation proceeding from that objective; and flatly put are simply inadequate to demonstrate that collocation is not feasible. Early submittals by the applicants note that the Holiday Inn collocation site is "a reasonable location according to the search map. It is also possible to add false architectural elements to screen an installation at the Holiday Inn" (PCRec 1299) but remove it from consideration as the, "slight increase in ground elevation would make the projected signal coverage area of the Cinema installation larger and more efficient, potentially serving more customers, Further, when evaluating locations for radio equipment at the Holiday in, we discovered that the length of the coax run from the radio to the antennas would be much greater than the run designed for the 100118275; 1 IPA #2009-01244 November 2,2010 Page8 Cinema. This additional length would result in an additional loss of signal, adding to the inefficiency of a possible Holiday Inn installation" (PCRec 1300). Later submittals state that "The collocation on the Holiday Inn Express could work purely from an RF perspective." (PCRec 769) but go on to indicate the site was rejected due to access difficulties likely to be encountered with the anticipated placement of the accessory equipment cabinet. The applicants final submittal notes that the Cinema installation "will provide a stronger RF signal that will cover more area.... will offload more traffic than a site at the hole!.... [and) is predicted to provide in-building coverage" to both the Southern Oregon University campus and the 1-5 corridor, noting that the "cinema location meets these goals significantly better than the hotel location" (PCRec 515). The Council finds that while the applicants have demonstrated a number of justifications for their preference for the Cinema site, they have failed to adequately demonstrate that collocation on the existing Holiday Inn Express wireless communication facility installation on Clover Lane is not feasible, and have in fact indicated that this location is reasonable according to their search map and could work from a radio frequency standpoint. The Council finds that collocation is the preferred option under ALUO 18.72,180.C,2,a, that the hierarchy in preference of design options stated in the standards is essential in minimizing to the greatest extent possible the visual and aesthetic impacts of wireless communication facility installations in Ashland, and that without an adequate demonstration that collocation is not feasible as required in ALUO 18.72.180.C.2.b., this installation on a pre-existing structure cannot be approved. As a result of the findings above as to the first asserted ground for appeal, the Council therefore concludes that the appeal should be granted on this ground, resulting in reversal of the approval and denial of the application. b, Conditional Use Permit Criterion: Adverse Material Effects The second ground for appeal asserted by the appellant was that the application failed to meet AMC 18.104.050.C, requiring that the proposed use will have no greater adverse material effect on the livability of the impact area when compared to the development of the subject lot with the target use of the zone. The Planning Commission found that this was a "comparison standard" that requires the City to contrast specific impacts resulting from the proposed use to the impacts if the site were developed to the target use for its C-l zoning, which is retail use built to a floor area ratio of 0.35. The appellant does not disagree with this interpretation of the code, but rather argues that there is not substantial evidence in the record to support the Commission's findings that the proposed use will not have a greater impact than if the site is developed for the target use. The Council finds that the Commission's findings extensively analyze each of the criteria . listed in the code section and evaluate the impact of the proposed wireless communication facility as compared with development of the site for commercial retail use. (PCRec 467-472). The Council finds that there is substantial evidence contained within the whole record to support the findings of the Planning Commission, and hereby adopts the identified Planning Commission findings in their entirety. Those findings are appended to this Final Decision as Appendix A. 100118275; 1 }PA #2009-01244 November 2. 2010 Page 9 The Council concludes that the Planning Commission's decision with regard to this ground should be upheld, and this ground for appeal should be denied.IIPJB1! c. Application submittal requirements The City Council finds that with regard to the third ground for appeal, "Failure to Provide a Lease with Application," the appellant argues that the applicant included neither a lease nor a . collocation study which are required under ALUO 18. n.180.B. The Council finds that to the extent that the Commission findings address this issue, they conclude that the identified documents are submittal requirements rather than approval criteria. Therefore, whether or not they were provided with the original application, submittals cannot serve as grounds for a denial of the application. The Council finds that the code requires applicants to provide this information in order for the City to make a determination whether the application meets applicable approval criteria; however, the submittal requirements are not approval criteria in and of themselves. The Council further finds that the applicants did ultimately provide a copy of a lease that did not explicitly preclude collocation, although it placed a number of preconditions on collocation which the Commission found questionable (PCRec 463-64). Similarly, the Council finds that the applicant provided materials to address collocation which the Commission initially found inadequate, and which the applicant subsequently supplemented during the hearing process (PCRec 462-63). The Council finds that by the time the Commission reached its decision, the study, as supplemented, provided the Commission with adequate information to determine compliance with the criteria. The Council therefore finds that there is substantial evidence contained within the whole record to support a finding that the required items were submitted. As a result, the Council concludes that the Planning Commission's decision with regard to this appeal ground should be upheld, and this ground for appeal should be denied. d. Administrative Variance: landscape buffering standards. The City Council finds that with regard to the final ground for appeal, "Failure to meet criteria for Administrative Variance to the landscape buffering standards for ground-mounted accessory equipment," the appellant argues that there is not substantial evidence contained within the whole record to support the findings of the Planning Commission. The Council finds that the Commission's findings include a detailed discussion of the accessory equipment structure and why it meets the criteria for an Administrative Variance to the landscape buffering standards (PC Rec 474-76). In particular, the Commission found that the ten-foot landscape buffer required by the standards "would extend into the required clear width of'the alley, impeding vehicular circulation, fire access and service corridor access for loading [and] unloading." The Council hereby adopts the findings of the Planning Commission as to this appeal ground, which findings are appended to this Final Decision as Appendix B. The Council finds that there is substantial evidence contained within the whole record to support the findings of the Planning Commission on this matter. Accordingly, the Council concludes that the Planning Commission's decision with regard to this ground should be upheld, and this ground for appeal should be denied. IIPJB2J. {00118275; 1 }PA #2009-01244 November 2,2010 Page 10 C. DECISION Based on the record of the Public Hearing on this matter, and on the findings set forth above, the City Council concludes that the Planning Commission erred' in its interpretation and application of the Development Standards for Wireless Communications Facilities in ALUa 18.n.180.C.2.a, that these standards are substantially more rigorous than they were applied in the Planning Commission's decision, and that the applicants have failed to meet their burden of proof in providing an adequate collocation study to satisfy the design standards criteria for collocation in ALUa 18. n.180.C. The City Council therefore grants the appeal as to the first appeal ground, denies the appeal as to the remaining three appeal grounds, and overturns the Planning Commission's approval for Site Review, Conditional Use Pennit and Administrative Variance to install a rooftop wireless communications facilities. The application is denied. John Stromberg, Mayor City of Ashland November 2.2010 Date 100]]8275; 1 IPA #2009-01244 November 2, 2010 Page 11 APPENDIX A Planning Commission Findings Regarding Conditional Use Permit Criteria Concerning "No Greater Adverse Effect on Livability" (pCRec 467-72) 9) AMC 18.104 C [No Greater Adverse Effect on Livability]: C. Tbat tbe conditional use will bave no greater adverse material effect on tbe livability of tbe impact area wben compared to tbe development of tbe subject lot with tbe target use of tbe zone. Wben evaluating tbe effect of the proposed use on tbe impact area, tbe following factors of livability of tbe impact area sball be considered in relation to tbe target use of the zone: 1. Similarity in scale, bulk, and coverage. 2. Generation of traffic and effects on surrounding streets. Increases in pedestrian, bicycle, and mass transit use are considered beneficial regardless of capacity of facilities. 3. Architectural compatibility with tbe impact area. 4. Air quality, including the generation of dust, odors, or otber environmental pollutants. S. Generation of noise, light, and glare. 6. The development of adjacent properties as envisioned in tbe Comprehensive Plan. 7. Otber factors found to be relevant by the Hearing Authority for review oftbe proposed use. Under the Ashland Municipal Code a Wireless Communications Facility is a conditional use; the existing development of the Ashland Shopping Center, some of which was accomplished before current regulations is primarily developed with permitted uses (e.g. the existing theater is a permitted use. AMC 18.32.020 D.). Only the addition of the WCF is currently before the Commission, This criterion [AMC 18.104 C] requires the proposed conditional use to have no greater adverse material effect on the livability of the impact area than [as compared to] development ofthe subject property with the target use of the zone. The impact area is considered to be the adjacent properties and the notice area. [See description under ill above]. the target use of the zone is commercial. Specifically;in C-I target use is defined in AMC 18.104.020.B.4 as: B. "Target Use" - The basic permitted use in the zone, as defined below. *** 4. C-!. The general retail commercial uses listed in 18.32.020 B" developed at an intensity of .35 gross floor to area ratio, complying with all ordinance requirements. AMC 18.32.020 B, provides: 100118275: 1 }PA #2009-01244 November 2, 2010 Page 12 18.32.020 Permitted Uses The following uses and their accessory uses are permitted outright: *** B. Stores, shops and offices supplying commodities or performing services, such as a department store, antique shop, artists supply store, and including a regional shopping center or element of such center, such as a major department store. Note: Impacts of other permitted uses such as nightclubs and bars, AMC 18.32.020 K., mortuaries and crematoriums, AMC 18.32.020 F. are not used for the comparison. The livability criterion is simply a comparison of the impact s of the proposed use (wireless communications facility) relative to the impacts of the target use (retail commercial sales and services). The Commission, consistent with prior City Council decisions, expressly finds and determines that this criterion is not a "no adverse impact" standard. That is, contrary to assertions by opponents, the standard is not a standard requiring the reduction, minimization or mitigation of all adverse impacts on adjacent properties. Compare, the above target use comparison standard of "no greater adverse material effect on the livability of the impact area" to the standard for an administrative variance, i.e. "Approval of the variance will not substantially negatively impact adjacent properties." The Commission expressly rejects assertions of a no adverse impact standard. The target use of the zone will [and does] have adverse impacts on livability to properties in the impact area, including architectural compatibility, noise, odor, light, glare, obstruction of views, dust, traffic, and other impacts typically associated with commercial use; the conditional use, which is also commercial and consists of a WCF installation [12 architecturally-integrated panel antennas] may have no greater adverse material effect than the target use. Accordingly, AMC 18.104.C. is a comparison standard. The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse element over the entry. The penthouse element raises the height of the roof peak at its highest point by approximately ten feet while complying with the forty-foot height requirements of the C-I Zoning District. A small enclosure in the rear of the theater on the alley will house WCF equipment. Placement of architecturally integrated wireless communications facilities on the existing building and construction of an associated ground mounted accessory equipment structure at the rear of the building will have little or no adverse material effect on factors of livability as discussed below. Accordingly, the Commission finds and determines that the proposed conditional use will have no greater adverse material effect on the livability of the impact area than would development to the target commercial use of the zone. This criterion is met. Factors of livability are enumerated and compliance with the criterion is analyzed below: 1. Scale, Bulk, and Coverage. The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse element over the entry. The penthouse element raises the height of the roof peak at its {OOI18275; I IPA #2009-01244 November 2, 2010 Page 13 highest point by approximately ten feet while complying with the forty-foot height requirements of the C-l. A small enclosure in the rear of the theater on the alley will house WCF equipment. The proposed architectural element is in compliance with setbacks and the maximum height permitted in the C-] Zone. In terms of the target use, the proposed height, bulk, scale and coverage of the improvement is no greater than would be allowed for the target commercia] retail use of the zone. Any obstruction of views is the same whether or not antennas are contained within the architectural feature. The proposal, as modified by Condition ]3, is appropriate for the target use and is architecturally compatible with the bulk, scale, coverage and genera] commercia] development patterns generally found in the target use. The findings of compliance under General Provision l.b. and l.d, above are incorporated herein by this reference. Opponents argue the project (which increases the height of the existing building) is not similar in bulk and scale and must be denied. However, the criterion is not "the project must be similar in bulk and scale" the criterion involves a comparison of the bulk and scale of the proposed use in relation with the target use of the zone. The target use, also commercial, allows buildings 40 feet in height in accordance with the same setbacks as proposed here. Accordingly the proposed use and the target use have equal impacts on the impact area. The Planning Commission finds and determines that this criterion is met; the proposed use will have no greater adverse material effect on the livability of the impact area than the development of the subject property with the target use of the zone. 2. Generation of Traffic and Effects on Surrounding Streets The proposed use is the addition of ]2 architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of the theater on the alley will house WCF equipment. The WCF use does not require daily traffic trips by employees or customers and therefore will have negligible traffic impact on the surrounding transportation system as compared to the target commercial retail use of the zone. The Planning Commission finds that wireless communications facilities and their associated accessory equipment will have essentially no traffic impact, including no associated parking demand, and no parking spaces are lost with the proposed installation. A condition has been added to require that adequate fire apparatus access be maintained in a manner consistent with city alley standards, and with condition 10, the Commission finds that the proposed installation will have no associated traffic impacts to surrounding streets. The Planning Commission finds and determines that this criterion is met; the proposed use will have no greater adverse material effect on the livability of the impact area than the development of the subject property with the target use of the zone. 3. Architectural compatibility with the impact area. . The findings set forth under Bulk, Scale, and Coverage above are incorporated herein by this reference as they relate to architectural compatibility. The Planning Commission finds and determines that this criterion is met; the proposed use will have no greater adverse material effect on the livability of the impact area than the development of the subject property with the target use of the zone. 4. Air quality, including the generation of dust, odors, or other environmental pollution. The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of the theater on the alley will house 100118275; 1 IPA #2009-01244 November 2, 2010 Page 14 WCF equipment. The proposed use will have virtually no generation of dust, odors or impact on air quality but certainly will have less environmental impact than the target commercial retail use of the zone (e.g. compare proposed use with impacts from parking lot traffic, air quality and odors from delivery vehicles, customer vehicles and employee traffic typically generated in commercial retail uses). The Planning Commission finds and determines that this criterion is met; the proposed use will have no greater adverse material effect on the iivability ofthe impact area than the development of the subject property with the target use of the zone. Finally, to the extent radio frequency emissions are considered by numerous opponents as "other environmental pollution" to be considered in the impact on livability comparison to the impacts from the target use of the zone, the Planning Commission expressly rejects consideration of RF emissions as part of this decision. The Planning Commission finds that the Telecommunications Act of 1996 expressly preempts local government regulation of the placement, construction, and modification of personal wireless service facilities on the basis of alleged environmental effects of radio frequency emissions. The City may only ensure that such facilities comply with the FCC's regulationsconceming such emissions [47 V.S.C. g332(c)(7)(B)(iv)]. Accordingly, the Commission has imposed a condition that the applicants demonstrate compliance with FCC regulations at the time a building permit application is submitted, as required in AMC 18, n.180.C.l.a. The Planning Commission will not, as urged by some opponents, knowingly disregard limitations on local government authority contained in the Telecommunications Act of 1996. 5. Generation of noise, light, and glare. The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of the theater on the alley will house WCF equipment. The proposed use is architecturally compatible with the existing building and condition 5 requires that the proposed penthouse element and accessory equipment structure be painted and textured in a non- reflective finish and color. The proposed use will have virtually no generation of noise, light or glare and certainly will have less than the target commercial retail use of the zone (e.g. compare proposed use with impacts from parking lot lights, headlights and noise from delivery vehicles, customer vehicles and employee traffic typically generated in commercial retail uses). The Planning Commission finds and determines that this criterion is met; the proposed use will have no greater adverse material effect on the livability of the impact area than the development of the subject property with the target use of the zone. 6. The development of adjacent properties as envisioned in the Comprehensive Plan. The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of the theater on the alley will house WCF equipment. The proposed use will have virtually no impact on the commercial development of adjacent properties as envisioned in the Comprehensive Plan. The proposed use does not physically preclude or obstruct future development of permitted uses in the C-l zoning district which fully implement the comprehensive plan. See list of permitted uses in AMC 18.32.020. The proposed use would appear to have much less impact on development of adjacent properties (less access and traffic generation conflicts), than development of the target use. (e.g: compare proposed use with impacts typically generated in commercial retail uses). To the extent opponents allege the impacts of the proposed use adversely impact the existing Holistic 100] ]8275: ] }PA #2009-01244 November 2, 2010 Page 15 wellness uses in the impact area, the findings under 7 below (other factors) are incorporated herein by this reference. . The Commission finds this conditional use will have no greater adverse affect on the livability of the impact area in terms of development of the adjacent properties than would full development of the site to its target commercial use, . 7.' Other factors found to be relevant by the Hearing Authority for review of the proposed use. The proposed use is the addition of 12 architecturally integrated panel antennas into the Ashland Street Cinema structure in a penthouse element over the entry. A small enclosure in the rear of the theater on the alley will house WCF equipment. Opponents urge adverse economic impact to adjacent properties as a factor under this approval criterion. The argument is that the proposed WCF use will have greater adverse material effect.on the livability (economic losses to existing businesses in the impact area) when compared to the development of the subject lot with the target C-I use of the zone. An example of this kind of adverse economic impact would be a conditional use which competed with impact area uses to a greater extent than target C-I uses would compete with impact area uses. However, as noted earlier, the standard is not - no adverse impact (economic or otherwise) on adj acent properties. The Commission recognizes that there is a specific cluster of existing land uses in place in the impact area which relate to holistic wellness. The Commission further finds that a significant, if not overwhelming, amount of the testimony provided by patrons, owners and employees of these businesses expressed opposition to the proposed conditional use based on perceived health impacts and environmental effects of radio frequency (RF) emissions from wireless communications facilities. The patrons, owners and employees also expressed opposition to the proposed use because the natural consequence of the health and environmental concerns expressed over RF emissions is a loss of patronage of the holistic wellness businesses, The Commission considered the arguments by Opponents and finds and determines diat the concern over economic impacts on the adjacent businesses is, in fact, inseparable from the concerns expressed over the health and environmental effects of Radio Frequency emissions. Stated another way, the adverse economic impact argument does not exist . separate and apart from the prohibited consideration of impacts of RF emissions, As such, the argument cannot be considered due to the limitations imposed under the Federal Telecommunications Act of 1996, (discussed above) and the Commission is compelled to decline to consider the economic impact argument under this criterion. In sum, the Planning Commission expressly finds and determines that the proposed WCF use will not have any greater adverse material effect on the livability of the impact area than the development of the property with the target commercial use of the zone. Based on the detailed findings set forth herein, the detailed findings of the Applicant, the findings and responses in the Staff reports specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record, the Planning Commission finds and determines that this criterion is met, or can be met with the imposition of conditions, {00118275; 1 IPA #2009-01244 November 2. 2010 Page 16 APPENDIX B Planning Commission Findings Regarding Administrative Variance Criteria (PCRec 474-76) 11) The criteria for an Administrative Variance to the Site Design and Use Standards are described in AMC 18.72.090 as follows: A. There is a demonstrable difficulty in meeting the specific requirements of the Site Design Standards due to a unique or unusual aspect of the proposed use of a site; B. Approval of the variance will not substantially negatively impact adjacent properties; C. Approval of the variance is consistent with the stated purpose of the Site Design and Use Chapter; and D. The variance requested is the minimum variance which would alleviate the difficulty. The Planning Commission finds and determines that the above referenced approval criterion for an Administrative Variance to Site Design and Use Standards, specifically for landscaping required in AMC 18.72.l80C.3. are met in that the proposed use causes demonstrable difficulty in meeting the requirement, the variance will not substantially negatively impact adjacent properties, the variance is consistent with the purposes of the Chapter and the variance is the minimum variance necessary to alleviate the demonstrable difficulty. The above finding is based on the detailed findings set forth herein, the detailed findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record. The Planning Commission finds and determines that there is demonstrable difficulty in meeting the Site Design and Use Standards landscaping requirements due to the unique and unusual aspect of the proposed use of the site. The proposed use requires ground mounted WCF equipment to support the WCF use which under AMC 18.72.180 C.3 above must be landscaped. The Commission finds that there is demonstrable difficulty in placement of such required ground mounted WCF facilities and landscaping on a site adequate area for additional landscape buffering. The proposed use on the south side of the Ash/and Street Cinema building off of a driveway that functions as an alley service corridor rather than as a primary circulation route for shopping center users is the area most suited for the essential ground placement of the equipment. There .are similar structures already in place along this corridor, no parking spaces are lost with the proposed placement, and the location is better situated to mitigate any visual impacts to residents of the adjacent nonconforming Pines Trailer P~k. (see below). The Commission further finds that the placement off of this alley precludes landscape buffering for the proposed accessory equipment structure because the required ten-foot width landscaping buffer would extend into the required clear width of the alley, impeding vehicular circulation, fire access and service corridor access for loading, unloading.. The Commission finds and determines that there is demonstrable difficulty in meeting the landscaping requirement due to the proposed use. This criterion is met. The Commission finds and determines that approval of the variance 'will not substantially negatively impact adjacent properties. The findings in the paragraph above, as well as General Provisions 1 b, are incorporated herein by this reference. The proposed structure mimics similar storage structures already in place on the south {OOI18275; I IPA #2009-01244 November 2,2010 Page 17 side of the building while maintaining the functionality of alley access, and that approval of the requested Administrative Variance would not substantially negatively impact adjacent properties due to the existing substantial landscaping in the form of large mature trees and shrubs located on the sloped area immediately south of the alley, which already effectively buffer views of the backside of the Ashland Street Cinema building. The Commission further finds that the view from the public right-of-way appears to be entirely screened by the existing buildings and landscaping in place to the south of the alley, and while the proposed accessory structure would potentially be visible from the residential units in the adjacent Pines Trailer Court, the spatial buffer provided, fencing in place between the properties, and design, color, materials and placement to match the existing storage structures all e(fectively mitigate visual impacts and amount to architectural integration of the accessory equipment structure into the existing building in a manner in keeping with the purpose and intent of the standards. This criterion is met. The purposes of the Site Design and Use Chapter include reducing adverse effects on surrounding property owners and the general public, creation of a safe and comfortable business environment, energy conservation, enhancement of the environment for walking, cycling, and mass transit use, and ensuring high quality development throughout the City. [See AMC 18.72.010]. This criterion is met based on the specific findings of compliance with conditional use criteria set forth above, as well as the design standards and general standards set forth above and incorporated herein by this reference. Finally, the requested variance is the minimum necessary to alleviate the hardship. The landscaping is unnecessary in this location and the applicant has requested no more relief th!ln is necessary to effectuate construction of the proposed use. The above finding is based on the detailed findings set forth herein, the detailed findings and responses in the Staff reports and those findings and responses in support provided by the Applicant, specifically incorporated herein by this reference, as well as by competent substantial evidence in the whole record. 100118275; 1 IPA #2009-01244 November 2, 2010 Page 18 CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: Ashland Gun Club/ Lithia Springs Property Lease Extension Progress Report Update November 2,2010 Primary Staff Contact: Public Works E-Mail: N/ A Secondary Contact: Martha Benn Estimated Time: Michael Morrison morrism(cilash land.or. us Michael R. Faught 10 Minutes Question: Does the Council have questions regarding the current status of the Lithia Springs Property lease extension including the environmental assessment work and implementation of the best management practices by the Ashland Gun Club? Staff Recommendation: No action is needed, This is a Gun Club progress report update for the Lithia Springs Property. Background: Progress Report Update following the Julv 20.2010 Council meeting: Gun Club Progress . At its own expense, the Club has installed a new electronically controlled gate for access control. Members are being issued personal identification numbers (pIN), and the system is expected to be fully operational by January I, 2011. This PIN will allow the Club to track who enters the shooting range and at what time. . Additional fencing has been installed to restrict access to historical resources, . The Club is working with a local lead recovery expert to determine when they will schedule the Lithia Springs property for lead removal. The lead recovery process requires a period of dry weather for best results, so the lead removal will most likely be conducted in the late spring. DEQ Progress . DEQ has assigned review of the Gun Club property to Geoffrey Brown. . The City has received two billings from DEQ in the total amountof$1212.00. History The Lithia Springs Property has been owned by the City of Ashland since 1930. In the 80 years since, the City has leased the property or allowed use of the property for several different activities including a dry ice manufacturing plant, a motorcycle race track and from 1968 to present, a shooting range. Prior to 1930 the property was developed as a mineral springs resort. This resort failed a short time later however remains of the attempted resort remain to this day. Along with the resort remains, artifacts from the dry ice manufacturing plant are also present on the property, On April 6, 2010, the Council granted a one-year lease extension to the Ashland Gun Club with the stipulation that some short term (within the 12 month lease extension) environmental and historical Page I on ='~, CITY OF ASHLAND improvements be identified and acted upon by both the Gun Club and the City. The lease extension would also allow staff the necessary time to complete the environmental assessment reporl;, including submission of that report to the Oregon Department of Environmental Quality (DEQ). The Level II study has been completed and submission of the report to DEQ has taken place, however, results from DEQ may still take several months. In recent years the use of the property as a shooting range has raised some concerns as to the potential environmental and historical impacts. To address these concerns the City has commissioned two studies. The first study titled the "Lithia Springs Management Plan," was prepared by George Kramer of Kramer and Company to address the current condition ofthe historic artifacts on the property. A portion of the study also included recommendations as to what needs to be done to protect the historic artifacts. The second study was a "Level II Ecological Risk Assessment Report" conducted by Brown and Caldwell, an environmental engineering and consulting firm. The Lithia Springs Management Plan identified measures to protect the remaining historically significant features. The Ecological Risk Assessment Report has been completed and submitted to DEQ for review. Although DEQ has just recently begun the review, they have informed the City that cleanup is voluntarv as long as the use remains the same, Lithia Springs Management Plan Implementation of the recommendations in the "Lithia Springs Management Plan" has begun. Recommendations and mitigation are included below: 1. Structures will be protected from errant gunshot or projectile impact of any kind. Structures will not be used as targets or to support, targets. Additionally no freestanding target of any type is permitted within 50' of an identified historic feature. To address Recommendation No. I, the Ashland Gun Club no longer allows archery in the area of these structures. The gun range has always been separate from these structures, however, archery was allowed. The Gun Club decided to reorient the archery range to prevent any possibility of an arrow hitting one of these structures. The Gun Club also decided to fence around the most significant and vulnerable structures to prevent any contact. 2. Structure perimeters (and interiors where applicable) will be kept free of vegetation to avoid the collection and trapping of moisture against masonry surfaces. The vegetation around the structures has been and will be kept to a minimum. Mowing occurs on the property regularly, The Gun Club will include vegetation removal as part oftheir regular landscape maintenance. 3. Structures will not be used for storage of excess building materials, trash, or vegetative debris, Recommendation No, 3 only affects two of the structures on the Lithia Springs property. Materials were completely removed from both of the structures, and then both structures were fenced off to prevent any further contact. Page 2 00 r~' CITY OF ASHLAND 4. Annual review, At this time review of Gun Club activities is occurring at least quarterly, in the future review time may be extended to annually if all recommendations are followed and all applicable "Best Management Practices" have been implemented. Level II - Ecological Risk Assessment Report The results of the second study, the "Level II Ecological Risk Assessment Report," have also led to some changes on the Lithia Springs property. The City is now enrolled in the DEQ "Voluntary Clean Up" program. We have also learned through our initial conversations with DEQ that we will not be required to conduct any type of clean up on the property unless the use of the property changes. If the Gun Club stops using the property, the City could be required to clean up the property. If the City decides to use it for any other use, or to sell it, then the City would definitely be required to conduct a clean up. (It is unlikely that the property could ever be restored to residential standards given the active site history.) In a proactive approach, the City has enrolled in the DEQ voluntary clean up program. The DEQ is in the process ofreviewing our ecological risk assessment. When their review is complete they will make recommendations as to what should be done if the City decides to voluntarily clean up the property. Related City Policies: N/A Council Options: N/A Potential Motions: N/A Attachments: . EPA Best Management Practices and the Level II Ecological Risk Report can be found on the City's website: http://ashland.or.us/Page,asp?NavID=12725 Page 3 of3 ~~, CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: Ordinance Relating to Noise and Heat Pumps or Mechanical Devices and Amendin~ AMC 9.08.170, 9.08.175, and 15.04.185 November 2,2010 Primary Staff Contact: Megan Thornton City Attorney's Office E-Mail: thorntm@ashland.or.us Community Dev pment Secondary Contact: Bill Molnar Martha Benne Estimated Time: 15 minutes Question: Will the Council approve Second Reading of an ordinance titled, "An Ordinance Relating to Noise and Heat Pumps or Mechanical Devices and Amending AMC 9.08.170, 9.08.175, and 15.04.185"? Staff Recommendation: Staff recommends Council approve the Second Reading and adopt the Ordinance. Background: The AMC provisions regarding noise were originally adopted in 1968, and the decibel standards were added in 1982, Based on staffs experience in enforcing this code, staff recommended updating a number ofthe noise provisions, especially the provisions regarding heat pumps and mechanical devices. It was also necessary to update sections of the code that attempted to distinguish between commercial and non-commercial speech, which is not allowed under the Oregon Constitution, Staff also received feedback from Council requesting that the antiquated references be removed and that staff consider looking at the League of Oregon Cities (LOC) model noise ordinance when updating the language. The proposed ordinance addresses all of these concerns. The heat pump and mechanical de:vice provisions were amended to clearly state what decibel standard applies by stating the installation year, instead of referring to the date the ordinance was adopted. In addition, because decibel standards apply to heat pumps and mechanical devices, those provisions were moved to 9.08.170.E, regarding decibel level readings, and eliminated from Chapter 15, Buildings and Construction. Section 15.04.185, heat pumps and mechanical devices, was repealed because it suggested there would be an inspection to determine noise levels before an installation permit would be granted, but this is not possible because the device must be installed for an inspection to take place. Staff believes that consolidating all ofthe standards into one section will make it easier for citizens to locate and comply with the standards regarding heat pumps and mechanical devices, There has been confusion and litigation over these code provisions in Ashland Municipal Court and Jackson County Circuit Court, and the Circuit Court Judge also suggested revising these sections. The LOC model ordinance and the City's noise provisions are both based upon the reasonable person standard; therefore, staff was able to borrow from the model ordinance to update the current language in the code. These revisions made it possible to eliminate references to noises that are produced by a vitro la, steam whistle, and bells attached to animals. Definitions were also added to make the ordinance clearer. The following Table shows the current noise provision, and the corresponding adaptation of the model ordinance section that was used to effectuate the update: Page J of4 .... r_~ CITY OF ASHLAND (illliOOlJ (llli in!tmle 1. The keeping of any bird or animal, including specifically any dog, which by causing frequent or long-continued noise disturbs the comfort and repose of any person in the vicinity. 2. The attaching of a bell to an animal or allowing a bell to remain on an animal. 3. The use ofa vehicle or engine, either stationary or moving, so out of repair, loaded, or operated as to create any loud or unnecessar ratin, riodin ,rattlin ,or other noise. 4. The sounding ofa horn or signaling device on a vehicle on a street, public place, or private place, except as a necessary warning of danger. 5. The blowing of a steam whistle attached to a stationary boiler, except to give notice of the time to begin or stop work, as a wamin of dan er, or u on re uest of TO er Cit authorities 6. The use of a mechanical device operated by compressed air, steam, or otherwise, unless the noise thereby created is effectively muffled; 7. The erection, including excavation, demolition, alteration, or repair ofa building in residential districts, other than between the hours of seven (7:00) a.m. and six (6:00) p.m. weekdays, and on weekends and Holidays between the hours of eight (8:00) a.m. and six (6:00)p.m., except in case of urgent necessity in the interest of the public welfare and safety and then only with a permit granted by the City Administrator for a period not to exceed ten (l 0) days. The permit may be renewed for periods of five (5) days while the emergency continues to exist. If the Council determines that the public health, safety and welfare will not be impaired by the erection, demolition, alteration, or repair of a building between the hours of six (6:00) p.m. and seven (7:00) a.m., and ifthe Council further determines that loss or inconvenience would result to any person unless the work is permitted within these hours, the Council may grant permission for such work to be done within specified hours between six (6:00) p.m. and seven (7:00) a.m. upon application therefore being made at the time the permit for the work is awarded or during the progress of the work. (Ord. 2580, 1990)The actual owner of property may do work on property which is actually owner occupied between the hours of six (6:00) p.m. and tef'.l (10:00) p.m. without obtaining a permit as herein re uired; 8. The use of a gong or siren upon a vehicle, other than police, fire, or other emergency vehicle; 9. The creation of excessive noise on a street adjacent to a school, institution of learning, church, or court of justice, while the same are in use, or on a street adjacent to a hospital, nursing home, or other institution for the care of the sick or infirm, which 11>" 0 eil ~~ na c 2. Animals and Birds. Unreasonably loud and raucous noise emitted by an animal or bird for which a person is responsible. A person is responsible for an animal if the person owns, controls or othen....ise cares for the animal or bird. (Model Ord. ~6.H) See general prohibition in proposed ordinance ~9.08.I70.B. See general prohibition in proposed ordinance ~9.08.I70.B. 3. Vehicle Horns, Signaling Devices, and Similar Devices. The sounding of any horn, signaling device, or'other similar device, on any automobile, motorcycle, or other vehicle on any right-of-way or in any public space of the City, for more than ten consecutive seconds. The sounding of any horn, signaling device, or other similar device, as a danger warning is exempt from this rohibition. Model Ord. 6.8 See general prohibition in proposed ordinance ~9.08.I70.B. II. Blowers, and Similar Devices. In residential or noise sensitive areas, between the hours of9:00 p.m. and 7:00 a.m., the operation of any noise-creating blower, power fan, power tools or any internal combustion engine, the operation of which causes noise due to the explosion of operating gases or fluids, provided that the noise is unreasonably loud and raucous and can be heard across the property line of the property from which it emanates. (Model Ord. 6.L 6. Construction or Repair of Buildings, Excavation of Streets and Highways. The construction, demolition, alteration or repair of any building or the excavation of streets and highways other than between the hours of7:00 a.m. and 7:00 p.m., on weekdays, and 8:00 a.m. and 6:00 p.m. on weekends and holidays, except in the case of an emergency in the interest of the public welfare and safety. In cases of emergency, construction or repair noises are exempt from this provision. In non-emergency situations, the City Administrator may issue a permit, upon application, if the City Administrator determines that the public health and safety, as affected by loud and raucous noise caused by construction or repair of. buildings or excavation of streets and highways between the hours of7:00 p.m. and 7:00 a.m. will not be impaired, and if the City Administrator further determines that loss or inconvenience would otherwise result. The permit shall grant permission in non- emergency cases for a period of not more than five days. The permit may be renewed once for a period of five days or less. The actual owner of property may do work on property which is owner occupieq between the hours of 6:00 p.m. and 10:00 p.m. without obtaining' a permit under this paragraph. (Model Ord. 96.1) 4. Non-Emergency Signaling Devices. Sounding or permitting sounding of any amplified signal from any bell, chime, siren, whistle or similar device, intended primarily for non-emergency purposes, from any place for more than ten consecutive seconds in any hourly period. The reasonable sounding of such devices by houses of religious worship, ice cream trucks, seasonal contribution solicitors or by the City for traffic control purposes are exem t from the 0 eration of this rovision. Model Ord. 96.C 10. Noise Sensitive Areas - Schools, Courts, Churches, Hospitals, and Similar Institutions. The creation of any unreasonably loud and raucous noise adjacent to any noise sensitive area while it is in use, which unreasonabl interferes with the workin s of the Page 2 of4 ~~, unreasonably interferes with the operation of such institution or disturbs or unduly annoys patients; 10. The discharge in the open air of exhaust of a steam engine, internal combustion engine, motorboat, or motor vehicle except through a muffler or other device which will effectively prevent loud or exolosive noises and the emission of annoying smoke; 11. The use or operation of an automatic or electric piano, musical instrument, stereo, radio, or similar device, television, computer, loudspeaker, or any instrument for sound producing or any sound- amplifying device so loudly as to disturb persons in the vicinity thereof or in such a manner as renders the use thereof a nuisance. However, upon application to the City Administrator, or designee and a report from the Chief of Police, the City Administrator or designee may grant permits to responsible persons or organizations for the broadcast or amplification of programs of music, news, speeches, or general entertainment as a part of a national, state or City event, public festivals, or special events of a noncommercial nature. If the City Administrator or designee disapproves such a permit, the matter may be appealed pursuant to the AMC 2.30, and the decision of the Hearings Officer, who shall not be the City Administrator, shall be final. The broadcast or amplification shall not be audible for a distance of more than one thousand (1,000) feet from the instrument, speaker, or amplifier, and in no event, shall a permit be granted where any obstruction to free and uninterrupted traffic, both vehicular and pedestrian, will result. 12. The making of a noise by crying, calling, or shouting or by means of a whistle, rattle, bell, gong, clapper, horn, hammer, drum, musical instrument, or other device for the purpose of advertising goods, wares, or merchandise, attracting attention, or inviting patronage of a person to a business. However, newsboys may sell newspapers and magazines by public outcry; 13. The conducting, operating, or maintaining of a garage within one hundred (l00) feet of a private residence, apartment, rooming house, or hotel in such manner as to cause loud or disturbing noises to be emitted there from between the hours of eleven (11:00) p.m. and seven (7;00) a.m.) CITY OF ASHLAND institution or which disturbs the persons in these institutions; provided that conspicuous signs delineating the boundaries of the noise sensitive area are displayed in the streets surrounding the noise sensitive area. (Model Ord. ~6.K) See general prohibition in proposed ordinance 99.08.170.8. 7. Radios, Televisions, Boomboxes, Stereos, Musical Instruments and Similar Devices. The use or operation of a radio, television, boombox, stereo, musical instrument, or similar device that produces or reproduces sound in a manner that is plainly audible to any person other than the player(s) or operator(s) of the device, and those who are voluntarily listening to the sound, and which unreasonably disturbs the peace, quiet, and comfort of neighbors and passers-by, or is plainly audible at a distance of 50 feet from any person in a commercial, industrial area, or public space. The use or operation of a radio, television, boombox, stereo, musical instrument, or similar device that produces or reproduces sound in a manner that is plainly audible to any person other than the player(s) or operator(s) of the device, and those who are voluntarily listening to the sound, and unreasonably disturbs the peace, quiet, and comfort of neighbors ,in residential or noise sensitive areas, including multi-family or single-family dwellings. (Mod,el Ord. ~6.E) 8. Loudspeakers, Amplifiers, Public Address Systems, and Similar Devices. The unreasonably loud and raucous use or operation of a loudspeaker, amplifier, public address system, or other device for producing or reproducing sound is prohibited without a permit from the City Administrator. The City Administrator may grant a permit to responsible persons or organizations for the broadcast or amplification of sound as a part of a national, state, or city event, public festival, or special events ofa noncommercial nature. If the City Administrator does not grant the permit, the matter may be appealed to an outside hearings officer pursuant to AMC 2.30. This permit shall not be required for any public performance, gathering, or parade for which a permit authorizing the event has been obtained from the City. (Model Ord. ~6.F) 9. Yelling, Shouting, and Similar Activities. Yelling, shouting, hooting, whistling, or singing in residential or noise sensitive areas or in public places, between the hours of 10:00 p.m. and 7:00 a.m., or at any time or place so as to unreasonably disturb the quiet, comfort, or repose of reasonable persons of ordinary sensitivities. This section is to be applied only to those situations where the disturbance is not a result of the content of the communication but due to the volume, duration, location, timing or other factors not based on content (Model Ord. ~6.G)' 12. Commercial Establishments Adjacent to Residential Property. Unreasonably loud and raucous noise from the premises of any commercial establishment, including any outdoor area which is part of or under the control of the establishment, between the hours of 11 :00 p.m. and 7:00 a.m., which is plainly audible at from the oroperty line of any residential property. (Model Ord. ~6.M) The ordinance includes exemptions for regular vehicular traffic, emergency vehicles, emergency signals, railroads, airports, certain types of construction, and some outdoor activities. I~ is necessary to exempt railroads and airports because these industries are regulated by federal laws, such as the Noise Control Act of 1972, Federal Aviation Act, Airport Noise and Capacity Act of 1990, and federal rules regarding the railroad and airport noise. In addition, the Supreme Court and the 9th Circuit have both held that local laws that "Congress unequivocally intended that the federal government have 'full Page 3 of4 r~' CITY OF ASHLAND control over aircraft noise, pre-empting state and local control.'" San Diego Unified Port v. Gianturco, 651 F.2d 1306, 1311 (1981) (citing Citv of Burbank v, Lockheed Air Terminal. Inc., 411 U.S. 624, 633 (1973)). .' Related City Policies: Ashland City Charter Article X, Ordinance Adoption Procedures Council Options: I) Move to approve Second Reading and adopt the ordinance, 2) Postpone consideration of the proposed ordinance. Potential Motions: Staff: Conduct Second Reading oj the ordinance by title only, Council: Motion to approve Second Reading and adopt the ordinance. Attachments: Proposed ordinance. Letter dated October 27,2010 submitted by Cate Hartzell Research on Noise ordinances submitted by Cate Hartzell Page 4 of 4 ~~, "\ ORDINANCE NO. AN ORDINANCE RELATING TO NOISE AND HEAT PUMPS OR MECHANICAL DEVICES AND AMENDING AMC 9.08.170,.9.08.175, AND 15.04.185 Annotated to show deletions and additions to the code sections being modified. Deletions are bold lined through and additions are bold underlined. WHEREAS, Article 2, Section I of the Ashland City Charter provides: Powers of the Citv The City shall have all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession; WHEREAS, the above referenced grant of power has been interpreted as affording all legislative powers home rule constitutional provisions reserved to Oregon Cities. Citvof Beaverton v.lnternational Ass'n of Firefighters, Local 1660. Beaverton Shop, 20 Or. App. 293, 531 P 2d 730,734 (1975); WHEREAS, the noise ordinance was adopted in 1982; WHEREAS, the code should be updated to remove antiquated language, modify standards, and address problems with the mechanical devices provisions, THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Sections 9.08.170 [Unnecessary Noise] through 9.08.175 [Heat Pumps or Mechanical Devices] are hereby amended to read as follows: 9.08.170 Unnecessary Noise A. Defiuitions. For the purposes of this section onlv, tbe followinl! words shall have the meaninl! provided in this paral!TaPb. 1. Emerl!ency: any occurrence or set of circumstances inyolyinl! actual or imminent physical trauma or property damal!e demandinl! immediate attention. 2. Emerl!ency Work: any work performed for tbe purpose ofpreyentinl! or alleyiatinl! physical trauma or property damal!e, whether actually caused or threatened by an emerl!ency, or work by private or public utilities when restorinl! utility service. Page 1 of9 3. City Administrator: the City Administrator of City or the City Administrator's desil!nee. 4. Noise Sensitive Area: includes. but is not limited to. real property normallv used for sleepinl!. or normallv used as a school. church. bospital or public library. 5. Plain Iv audible: any sound that can be detected bv a reasonable person of ordinary sensitivities usinl! his or her unaided hearinl! faculties. 6. Public ril!ht-of-wav: any street, sidewalk. or similar place normallv accessible to the public which is owned or controlled bv a I!overnment entity. 7. Public space: any real property or structures on real property. owned bv a 1!0vernment entity and normallv accessible to the public. includinl! but not limited to parks and other recreational areas. 8. Residential property: any real property located in a residentiallv zoned district pursuant to the local land use code. A. B. General Prohibition. No person shall make, continue. or assist in making; eontinue, or eause to lie malle I) any unreasonablv loud, disturbing, or raucous noise: or 2) any unneeessary noise wkich either that unreasonablv annoys, disturbs, injures, or endangers the comfort, repose, health, safety, or peace of reasonable persons of ordinary sensitivity. within the iurisdictionallimits of the City: or otkers. 3) any noise which is so harsh. prolonl!ed. unnatural. or unusual in time or place as to occasion unreasonable discomfort to any persons. or as to unreasonablv interfere with the peace and comfort of neil!hbors or their I!uests. or operators or customers in places of business. or as to detrimentallv or adverselv affect such residences or places of business. &- C. The standard for judging loud, disturbing and unnecessary noises shall be that of an average, reasonable person with ordinary sensibilities after taking into consideration~ Suek noises whieh are in ';iolation of this seetion inclulle hut are not Iimitell to tke fallowing: 1:. the character of the neighborhood in which the noise is made and the noise is heardi 2. the proximity of the sound to sleepinl! facilities. whether residential or commercial: 3. the the land use. nature. and zoninl! of the area from which the sound emanates and the area where it is received or perceived: 4. the time of day or nil!ht the sound occurs: 5. the duration of the sound: and 6. whether the sound is recurrent. intermittent, or constant. D. Noises Prohibited. The followinl! acts are declared to be per se violations of this Ordinance. This enumeration does not constitute an exclusive list: 1. Unreasonable Noises. The unreasonable makinl! of. or knowinl!lv and unreasonablv permittinl! to be made. any unreasonablv loud. boisterous or unusual noise. disturbance. commotion or vibration in any boardinl! facility. Page 2 of9 qo qF dwelline, place of business or other structure, or upon any public street, park, or other place or buildine. The ordinary and usual sounds, noises, commotion or vibration incidental to the operation of these places when conducted in accordance with the usual standards of practice and in a manner which will not unreasonablv disturb the peace and comfort of adiacent residences or which will not detrimentallv affect the operators of adiacent places of business are exempted from this provision. 2. Animals and Birds. Unreasonablv loud and raucous noise emitted bv an animal or bird for which a person is responsible. A person is responsible for an animal if the person owns, controls or otherwise cares for the animal or bird. 3. Vehicle Horns, Sienaline Devices, and Similar Devices. The soundine of anv horn, sienaline device, or other similar device, on any automobile, motorcvcle, or other vehicle on any rieht-of-wav or in any public space of the City, for more than ten consecutive seconds. The soundine of any horn, sienaline device, or other similar device, as a daneer warnine is exempt from this prohibition. 4. Non-Emereencv Sienaline Devices. Soundine or permittine soundine of any amplified sienal from any bell, chime, siren, whistle or similar device, intended primarilv for non-emereencv purposes, from any place for more than ten consecutive seconds in any hourlv period. The reasonable soundine of such devices bv houses of relieious worship, ice cream trucks, seasonal contribution solicitors or bv the City for traffic control purposes are exempt from the operation of this provision. 5. Emereencv Sienaline Devices. The intentional soundine or permittine the sonndine outdoors of any emereencv sienaline device includine fire, burelar, civil defense alarm, siren, whistle, or similar emereencv sienaline device, except in an emereencv or except as provided in subsections (a) and (b), below. a. Testine of an emereencv sienaline device shall occur between 7:00 a.m. and 7:00 p.m. Anv testine shall use onlv the minimum cvcle test time. In no case shall such test time exceed five minutes. Testine of the emerl!encv sil!nalinl! svstem shall not occur more than once in each calendar month. b. If a false or accidental activation of an alarm occurs more than twice in a calendar month, the owner or person responsible for the alarm shall be in violation ofthis Ordinance. Construction or Repair of Buildines, Excavation of Streets and Hiehwavs. The construction, demolition, alteration or repair of anv buildine or the excavation of streets and hiehwavs other than between the hours of 7:00 a.m. and 7:00 p.m., on weekdays, and 8:00 a.m. and 6:00 p.m. on weekends and holidavs, except in the case of an emereencv in the interest of the public welfare and safety. In cases of emereencv, construction or repair noises are exempt from this provision. In non-emereencv situations, the City Administrator may issue a permit, upon application, if the City Administrator determines that the public health and safety, as affected bv 6. Page 3 of9 loud and raucous noise caused bv construction or repair of buildin!!s or excavation of streets and hi!!hwavs between the hours of 7:00 p.m. and 7:00 a.m. will not be impaired, and if the City Administrator further determines that loss or inconvenience would otherwise result. The permit shall!!rant permission in non-emer!!enCV cases for a period of not more than five days. The permit may be renewed once for a period of five days or less. The actual owner of property may do work on property which is owner occupied between the hours of 6:00 p.m. and 10:00 p.m. without obtainin!! a permit under this para!!raph. 7. Radios, Televisions, Boomboxes, Stereos, Musical Instruments and Similar Devices. The use or operation of a radio, television, boombox, stereo, musical instrument, or similar device that produces or reproduces sound in a manner that is plainlv audible to any person other than the plaver(s) or operator(s) of . the device, and those who are voluntarilv listen in!! to the sound, and which unreasonablv disturbs the peace, Quiet, and comfort of nei!!hbors and passers-by, or is plain Iv audible at a distance of 50 feet from any person in a commercial, industrial area, or public space. The use or operation of a radio, television, boombox, stereo, musical instrument, or similar device that produces or reproduces sound in a manner that is plainlv audible to any person other than the plaver(s) or operator(s) of the device, and those who are voluntarilv listen in!! to the sound, and unreasonablv disturbs the peace, Quiet, and comfort of nei!!hbors in residential or noise sensitive areas, includin!! multi-familv or sin!!le-familv dwellin!!s. 8. Loudspeakers, Amplifiers, Public Address Systems, and Similar Devices. The unreasonablv loud and raucous use or operation of a loudspeaker, amplifier, public address system, or other device for producin!! or reproducin!! sound is . prohibited without a permit from the City Administrator. The City Administrator may !!rant a permit to responsible persons or or!!anizations for the broadcast or amplification of sound as a part of a national, state, or city event. public festival, or special events of a noncommercial nature. If the City Administrator does not !!rant the permit, the matter may be appealed to an outside hearin!!s officer pursuant to AMC 2.30. This permit shall not be required for any public performance, !!atherin!!, or parade for which a permit authorizin!! the event has been obtained from the City. 9. Yellin!!, Shoutin!!, and Similar Activities. Yellin!!, shoutin!!, hootin!!, whistlin!!, or sin!!in!! in residential or noise sensitive areas or in public places, between the hours of 10:00 p.m. and 7:00 a.m., or at any time or place so as to unreasonablv disturb the Quiet, comfort, or repose of reasonable persons of ordinary sensitivities. This section is to be applied on Iv to those situations where the disturbance is not a result of the content of the communication but due to the volume, duration, location, timin!! or other factors not based on content. 10. Noise Sensitive Areas - Schools, Courts, Churches, Hospitals, and Similar Institutions. The creation of any unreasonablv loud and raucous noise adiacent to any noise sensitive area while it is in use, which unreasonablv interferes with the workin!!s of the institution or which disturbs the persons Page 4 of9 in these institutions; provided that conspicuous sil!ns delineatinl! the houndaries of the noise sensitive area are displaved in the streets surroundinl! the noise sensitive area. 11. Blowers. and Similar Devices. In residential or noise sensitive areas, between the hours of 9:00 p.m. and 7:00 a.m.. the operation of anv noise-creatinl! blower, power fan, power tools or any internal combustion enl!ine, the operation of which causes noise due to the explosion of operatinl! l!ases or fluids, provided that the noise is unreasonably loud and raucous and can be heard across the property line of the property from which it emanates. 12. Commercial Establishments Adiacent to Residential Property. Unreasonably loud and raucous noise from the premises of any commercial establishment. incIudinl! any outdoor area which is part of or under the control of the establishment. between the hours of 11 :00 p.m. and 7:00 a.m.. which is plainly audible at from the property line of any residential property. 1. The keeping of ony binl or onimol whieb by cousing freljuent or long continued noise disturbs the eomfert ond repose of ony person in the 'o'icinity; 2. The attoching of 0 bell to on animal or allowing 0 bell to remoin on on onimal; 3. The use of 0 '/ehicle or engine, either stotionory or mo'/ing, so out of repoir, 10 oded, or operoted os to creote ony loud or unneccssory grating, grinding, rattling, OF. other noise; 1. The sounding of a horn or signaling de'/iee on a vehiele on 0 street, public place, or pri'/ate place, exeept as a necessory warning of danger; $. The blowing of a steam whistle attoehed to a stationaf1' boiler, exeept to gi'o'e notice of the time to begin or stop worl" as a warning of donger, or upon reljuest of proper City outhorities; e.- The use of a mechanical device operated by compressed air, steam, or otherwise, unless the noise thereby created is effectively muffled 7. The ereetion, including exca'/a80n, demolition, alteration, or repair of a building in residential districts, other thun between the hours of seyen (7:00) a.m. ond six (lJ:OO) p.m. weel.days, and on weel,ends and Holidays between the hours of eight (8:00) a.m. ond six (lJ:OO)p.m., except in case of urgent neeessity in the interest of the publie welfare and sofety and then only with a permit granted by the City Administrator for a period not to exeeed ten (10) dRyS. The permit moy be renewed for periods of five ($) days while the emergeney continues to exist. If the Couneil determines thut the public health, saf~ty and welfare will not be impaired by tbe ereetion, demolition, alteration, or repair ofa building between the hours ofsix (lJ:OO) p.m. and se'/en (7:00) o.m., ond if tbe Council furtber determines that loss or ineon'o'enience would result to any person unless the worl, is permitted within thcse hours, the Council may grant permission for such work to be done within specified hours between six (lJ:OO) p.m. and se'o'en (7:00) a.m. upon applieation theFefere being made at the time the permit for the worl, is awarded or during the progress of the worl.. (Ord. 2$80, 1990)The aetual owner of property may do worl, on property which is actually owner oecupied between the hours of six (lJ:OO) p.m. and ten (10:00) p.m. without obtaining a permit as herein rCljuired; Page 5 of9 8. The use of a gong or siren upon a '/ehiele, other than poliee, fire, or other emergeney vehiele. 9. The creation of exeessive noise on a street adjaeent to a sehool, institution of learning, ehureh, or eourt of justiee, while the same are in use, or on a street adjaeent to a hospital, nursing home, or other institution for the care of the siek or infirm, whieh uDFeasonably interferes with the operation of such institution or disturhs or unduly annoys patients; 10. The diseharge in the open air of exhaust of a steam engine, internal eombustion engine, motorboat, or motor '/ehiele exeept through a mufDer or other dcvice which will effectiycly pre'fent loud or explosi'fe noises and the emission of annoying smoke; I1.The use or operation of an automatic or electric piano, phonograph, gramophone, Vietrola, radio, television, loudspeaker, or any instrument for sound produeing or any sound amplifying deviee so loudly as to disturb persons in the vieinity thereof or in such a manner as renders the use thereof a nuisanee. However, upon applieation to the City :\dministrator and a report from the Chief of Poliee, the City Administrator may grant permits to responsible persons or organizations for the broadeast or amplification of programs of musie, news, speeehes, or general entertainment as a part of a national, state or City ennt, publie festivals, or special events of a noneommereial nature. If the City :\dministrator disapproves sueh a permit, the matter may be appealed to the City Couneil whose deeision shall be final. The broadeast or amplifieation shall not be audible for a distanee of more than one thousand (1,000) feet from the instrument, speal,er, or amplifier, and in no e'fent, shall a permit be granted where any obstruetion to free and uninterrupted traffie, both vehieular and pedestrian, will result. (Ord. 2301, 1984j 12. The maIling of a noise by erying, ealling, or shouting or b)' means of a whistle, rattle, bell, gong, elapper, horn, hammer, drum, musieal instrument, or other dcyiee for the purpose of advertising goods, wares, or merehandise, attraeting attention, or inviting patronage of a person to a business. However, newsboys may sell newspapers and magazines by public outery; 13. Tbe eondueting, operating, or maintaining of a garage within one hundred (100) feet of a private residenee, apartment, rooming house, or hotel in sueh manner as to eause loud or disturbing noises to be emitted therefrom between the hours of eleven (11 :(0) p.m. and seven (7:00) a.m. b E. Generallv sound measurements are not reQuired for enforcement of this chanter; however. sound measurements are reQuired for enforcement nursuant to this section. If sound measurements are taken. thev shall be taken with a sound level meter in l!ood oneratinl! condition. Any source of noise which exceeds the following standards is considered a public nuisance~ 1. Decibel Noise Standards Allowable Statistical Noise Levels in anv One Hour: 7 a.m. to 9 p.m. 9 p.m. to 7 a.m. L50--50 DBA L50--45 DBA LlO--55 DBA LlO--50 DBA Page 6 of9 LJ--60 DBA LJ--55 DBA where: L50 = noise level exceeded 50% of the time LJ 0 = noise level exceeded 10% of the time LJ = noise level exceeded 1% of the time 2. Standards for measurement. Standards for measurement of noise sources sholl be deseribed in "Sound Measurement Proeedures Manual," current revision, as adopted by the State Department of En-..ironmental Quality. .J. 2. Where measured. Measurement of a noise source shall be made from the closest property line of a residential property. structure in a residential zone. 4. Construction acth'ities exempted. Noise from temporary construction acthities is exempted from the noise performance standards from 7:00 a.m. to 9 p.m. 3. Heat Pumps or Mechanical Devices. a. No person shall operate a commercial or residential heat pump, air- conditioninl! unit, or similar mechanical device if noise levels from its operation exceed forty-five (45) DBA from the closest property line of a residential property on an adiacent parcel ofIand characterized as a noise sensitive area. b. No person shall operate a commercial or residential heat pump, air- conditioninl! unit, or similar mechanical device that was installed prior to 1981 if noise levels from its operation exceed fifty (50) DBA from the closest property line of a residential property on an adiacent parcel of land characterized as a noise sensitive area. . f:. Heat Pumps or Mechanical Devices is a Class II violation. ~ 4. Variances. The Council may grant variance to the Decibel Noise Standards when it finds that strict compliance with the ordinance would cause an unusual and unreasonable hardship to a commercial or industrial use. a. The Council shall notify all adjacent residential structures within 200 ft. of the proposed variance and shall hold the public hearing on the variance prior to making any decisions on the request for a variance. b, The variance shall be the minimum necessary to alleviate the unreasonable hardship. F. .Exemptions. 1. Sounds caused bv the followinl! are exempt from the prohibitions set out in paral!raph D and are in addition to the exemptions specificallv set forth in paral!raph D: a. Sounds of rel!ular vehicular traffic upon premises open to the public, provided that the prohibition of paral!raph D.3 continues to applv. b. Sirens. whistles. or bells lawfullv used bv emerl!enCV vehicles, or other alarm svstems used in case of fire. collision, civil defense, police activity. or imminent danl!er, provided that the prohibition contained in paranaph D.5 continues to applv. Page 70f9 b. ~~~(} c. Tbe emission of sound for tbe purpose of alertin!! persons to tbe existence of an emer!!encv or tbe emission of sound in tbe performance of emer!!encv wor.k. d. Sounds re!!ulated bv federal law. indudin!!. but not limited to. sounds caused bv railroads or airports. ~ Repairs or excavations of brid!!es, streets or bi!!hwavs bv or on behalf U of the City, tbe State. or tbe federal !!overnment, between tbe bours of 7:00 p.m. and 7:00 a.m., wben public welfare and convenience renders it impractical to perform tbe work between 7:00 a.m. and 7:00 p.m. f. Temporarv Construction activities. Noise from temporary construction activities that take place between 7:00 a.m. to 9 p.m. g. Outdoor Scbool and Plav!!round Activities. Reasonable activities conducted on public plav!!rounds and public or private scbool !!rounds, wbicb are conducted in accordance with tbe manner in which such spaces are !!enerallv used, indudin!! but not limited to, school atbletic and school entertainment events. Other Outdoor Events. Athletic events. outdoor !!atherin!!s. public dances, shows and sportin!! events, and other similar outdoor events, provided tbat anv required permits have been obtained from the appropriate permittin!! authority. D, G. Penaltv. Unless otberwise specified in tbis section, Unoeeessnrv unnecessary noise is a Class I Violation. ,.:, 9.08.175 Hent Pumps or Mechnnicnl Devices No persoo shnll cnuse or permit to exceed, on property under their ownemhip or control, the stnndnrds set forth in Section 15.01.185 oCthe Municipnl Code. Hent Pumps or Meehnnicnl Devices is n Clnss II violntion. SECTION 2. Sections 15.04.185 [Heat Pumps and Mechanical Devices] is hereby amended as follows: 15.04.185 Heat Pumps and Mechanical Devices The following stnndnrds shnll govern the issunnce of permits nod ooise levels of hent pump Hod other meehnoicnl iostnllntions: A. Existiog Hent Pumps nod Meehnnienl Dcviees. No person owning or cootrolliog nn existiog commercinl or resideotinl hent pump or mechnoicnl deviee shnll enuse or permit operntion of thnt noise souree if the noise levels geoernted Ily the hent pump or meehnoienl device exeeed fifty (50) DBl. mensured within twenty five (25) feet of the oenrest residentinl strueture 00 no ndjnceot pnreel of Inod. B. New Hent Pump nod Mechnnicnl Instnllntions. Effeetive upon ndoption of this Section, no person shnll instnll or opernte n eommereinl or residentinl hent pump or meehnnicnl device if noise levels from its operntion exeeed forty five (15) DBl. within twenty fin (25) feet of the nenrest residentinl structure on nn nd-jneent pncel of Innd or within the setllncl. zone of nny ndjncent unoceupied pnrcel of Iud zoned for residentinl use. Page 8 of9 {; A. Permit Requirement. No person shall install a commercial or residential heat pump. air conditioninl! unit. or similar mechanical device prior to submitting a permit application to the Building Official and receiving approval. All applications shall certify that the operation of the heat pump or mechanical dcvice will mect the pFfl'lisions of Section 2 using the I.ir Conditioning and Ref-rigeration Institute Standards for <".pplication for Sound Rated Outdoor Unitary El)uipment. (Standard 275) D. Enforcement Responsibility. It shall be the responsibility of the Building Official to assure all provisions of this Seetion are met prior to issuing an installation permit for a heat pump or meehanical device. E. B. (Repealed by Ord. 2685,1992) (Ord. 2153 SI, 1981;Ord 2925, 2006) SECTION 3. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses, SECTION 4. Savinl!s. Notwithstanding this amendment/repeal, the City ordinances in existence at the time any criminal or civil enforcement actions were commenced, shall remain valid and in full force and effect for purposes of all cases filed or commenced during the times said ordinance(s) or portions thereof were operative. This section simply clarifies the existing situation that nothing in this Ordinance affects the validity of prosecutions commenced and continued under the laws in effect at the time the matters were originally filed. SECTION S. Codification. Provisions ofthis Ordinance shall be incorporated in the City Code and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another word, and the sections of this Ordinance may be renumbered, or re-lettered, provided however that any Whereas clauses and boilerplate 'provisions (i.e. Sections 4-5) need not be codified and the City Recorder is authorized to correct any cross-references and any typographical errors. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(e) of the City Charter on the _ day of ,2010, and duly PASSED and ADOPTED this _ day of ,2010. Barbara M. Christensen, City Recorder SIGNED and APPROVED this _ day of ,2010. John Stromberg, Mayor Reviewed as to form: Megan Thornton, Acting City Attorney Page 9 of9 October 27,2010 Cate Hartzell 892 Garden Way Ashland, Oregon 97520 City Council & Mayor Stromberg 20 East Main Street Ashland, Oregon 97520 RE: Comments on 2010 revision of An Ordinance Relating To Noise and Heath Pumps Or Mechanical Devices and Amending AMC 9,08.170, 9.08.175 and 15.04.185 I respectfully submit the following comments and questions relative to the noise ordinance up for second reading at your first November meeting. In the process ofresearching noise ordinances, I learned that their enforcement is not uncommonly the subject of lawsuits involving the Constitution of the United States, I believe that the ordinance you are considering is vulnerable to legal challenge in its current form, I list two primary issues and then include a section with various comments. Issue #1: The draft ordinance indicates that preferential treatment is allowed; this could result in charges of discrimination. Section I. 9,08,170 A.4. Noise Sensitive Areas are not defined except through example. Churches are also included without being defined; does the City mean "any place of religious meeting?" There is no basis to discriminate in favor of churches instead of theaters or musical performances, for example, since one assumes absence of noise is favorable to any of these or additional activities. Section 1. 9.08.170 D. 1. This section prohibits the unreasonable generation any unreasonable loud,... unusual noise, commotion, or vibration essentially ANYWHERE in Ashland. The ordinary and usual sounds, noises, commotion, or vibration involved in operating any place in town is allowed, Definitions of commotion include "a condition of civil unrest or insurrection," "steady or recurrent motion," "mental excitement or confusion," "a flurried disturbance or noisy confusion/agitation." These are behaviors, not sounds that are more appropriately regulated as such. Attempting to regulate civil unrest or mental confusion or agitation under the vague standards in the ordinance could result in discriminatory enforcement. Section I. 9,08.170 D.4. The section on non-emergency signaling devices allows for exceptions for places of religious worship and ice cream trucks, and seasonal contribution solicitors special immunities and privileges that are not being afforded to other groups. There is no mention of bells ending recesses at school, taco trucks, or bell-ringing used to raise money for non-seasonal contributions, Of interest is discussion of an exemption for SOU for their hourly chimes. Issue #2: Case law indicates that key language that is used in this draft ordinance has been ruled unconstitutionally vague. In April 2009, the Virginia Supreme Court struck down Virginia Beach's noise ordinance as unconstitutionally vague. The ordinance prohibited "any unreasonably loud, disturbing and unnecessary noise in the city" that "disturb[s] or annoy[s] the quiet, comfort or repose of reasonable persons." In February 1999, a federal district judge halted enforcement of a noise ordinance in a suit brought by the American Civil Liberties Union of Michigan on behalf of locked-out Detroit newspaper workers, United States District Judge John Corbett O'Meara granted a temporary injunction halting enforcement of the ordinance; the judge determined that the law, which makes it a crime to make "annoying" or "disturbing" noises, was unconstitutionally vague. A resident attempting to abide by the law would have difficulty knowing what a reasonable person of ordinary sensitivities would be. The "scientific" section that uses decibel levels in regulating mechanical devices is substantially better, but there are issues with knowing what exactly this bans or doesn't; case law indicates that quantifiable methods of determining violations guard against discriminatory enforcement. The ordinance, for the most part, does not define what "noise" is. The council is well-advised to ask staff to include a definition of the term. As currently written, it seems that this noise ordinance could be used against all sorts of individual political and religious speech as well as large protests etc.. I trust that this is not the City's intent. Section 1. 9.08.170 B.1) "Disturbing" and "raucous" require a subjective interpretation. This section lacks a quantifiable standard. Webster's Dictionary uses "lament, hoarse, disagreeably harsh or strident, boisterously disorderly" to explain raucous. Those relate more to behavior or intent for making the noise. One can argue that law enforcement has tools to intervene in behavior (vs. noise) that is disorderly and causing unreasonable sound. Section 1. 9.08.170 B.2) Any noise that "annoys," "disturbs," or "endangers the comfort, or repose" of a reasonable person appears to create a standard that is too vague. Note that this is the language used in the ordinance struck down in Virginia Beach (see above). One person's music is another person's noise. Section 1. 9.08.170 B. 3) The use of the term "any noise" that "occasions unreasonable discomfort to any persons" seems overly broad. A reasonable person would be unable to predict how that will be interpreted and by whom in different situations. Section 1. 9,08, I 70 C, The reasonable person standard for judging includes an assessment of the character of the neighborhood. There are no standards for weighing the factors listed in the first paragraph C, therefore there is a notice problem to the public. This implies that the same noise made in a neighborhood ofretired elderly residents might be judged differently if it happened in a neighborhood populated by college students. That could be problematic. Section 1. 9.08.170 D.8 What is the standard for permits in the loudspeaker section and what will be required to get the permit? This could be a limit on expression that is overbroad and unconstitutional. The ordinance should express those things. Unreasonably loud use of a loudspeaker, amplifier, orP A system is vague; this is an area where quantifying the intent could be useful. Section 1. 9.08.170 D.9 Freedom of Expression issues abound in this section. Yelling and hooting is forbidden; what about religions that uses that form of expression in their night services? Other comments: Section 1. 9.08.170 A.8. Residential property: any real property located in a residentially zoned district pursuant to the local land use code: Does this mean that the ordinance does not apply to residences in areas zoned for commercial use, but that have residential overlay or live/work or include apartment units? Section 1. 9.08.170 D.7 The section about radios and TVs needs to be revised for improved comprehension. Section 1. 9.08.170 D.1O It appears that this could impact economic centers and different parts of town differently. Which areas will this impact? What is the projected impact on commercial establishments in town? It proposes signage in all these areas; what is the impact of that? Section I. 9.08.170 D.II Does this section apply to street sweepers, both the City's and those hired by private businesses in town? Section 1.9.08.170D.12 Which areas will this impact? It appears that all noise must cease after II :00 PM until 7:00 Am; however, the definition of residential property is tied to zoning, so does this not apply downtown or in commercial zones? What is the projected impact on commercial establishments across town? Will this impact the Greenshow or residential areas around the OSF outdoor theater? Section 1. 9.08.170 E.4 Variances It appears that residential uses are not eligible for variances. What are examples of variances that lead the Council to include this option? Guidance in sections like this can be useful in the future. Section 1. 9.08.170 F. Exemptions: The police sirens section should require that police are using those sirens in their official course of duty only. The new exemption contained in this ordinance for repairs of bridges, streets, or highways between 7:00 PM and 7:00 AM outright, without any notice to residents or hearing at City Council, changes the current practice. While City Councils generally grant the requests to do so, making it a matter of public notice provides residents an opportunity to give input. This exempts construction in town until 9:00 PM. Is that later than currently allowed? Given that the ordinance contains the potential that playing most musical instruments in parks or yards will be prohibited, it seems odd that it would allow sounds including power saws, generators, air hammer, etc until 9:00 PM in close proximity to sleeping areas. Section 1. 9.08.170 G. A class I violation is a hefty deterrent. This ordinance greatly expands the scope of what can be considered unnecessary noise. Section 2. 15.04. I 85 Heat pumps. Aren't these devices as loud as the manufacturer makes them? If you have to have it installed before you can test it, what are residents supposed to do if it exceeds the standard, take it out? If it is too loud, does that mean that you have to put it somewhere in the middle of your property, thus disallowing the use of much of your property for this purpose? I found this quote on Wikipedia interesting: "A typical noise ordinance sets forth clear definitions of acoustic nomenclature and defines categories of noise generation; then numerical standards are established, so that enforcement personnel can take the necessary steps of warnings, fines or other municipal police power to rectify unacceptable noise generation. Ordinances have achieved certain successes but they can be thorny to implement." I am told that when you revise a law, the court presumes that the governing body reviewed and confirmed all that was in it at the time. This should not be considered a housekeeping item. I don't see in the staff report that the Police Dept has reviewed and reported on how they would enforce this ordinance as proposed. It is my hope that more effort is put in prior to adoption in order to ensure the protection of our Constitutional rights and to protect the city from warranted challenges. Thanks you for your attention to this letter. Respectfully, Cate Hartzell hap:l/www. ad u . orq/free-speech/vi rq i n ia-su pre me-cou rt -d ecl a res-vi rq i n i a- beach -noise-ord i na nce-u n constitution a I April 17, 2009 FOR IMMEDIATE RELEASE CONTACT: mediaCalaclu.org Virginia Beach, V A - The Virginia Supreme Court today struck down Virginia Beach's noise ordinance because it is unconstitutionally vague. The ordinance prohibits "any unreasonably loud, disturbing and unnecessary noise in the city" that "disturb[ s] or annoy[ s] the quiet, comfort or repose of reasonable persons." "We are pleased with the Court's decision to strike down this law," said ACLU of Virginia Executive Director Kent Willis. "Virginia Beach is free to control noise, but it must do so in a way that is reasonable and precise so as not leave residents and business owners guessing whether or not they are violating the law." The case, Tanner v. Virginia Beach, was filed by Bradley Tanner and Eric Williams, owners of The Peppermint Beach Club in Virginia Beach, who were frequently cited under the ordinance. The owners presented a broad range of evidence to show that the ordinance is vague and unevenly enforced. Police witnesses admitted that they use their own subjective judgment to decide if someone is violating the ordinance. "The ordinance was not even clear to law enforcement officials," added'Willis. "The vagueness of the law left it wide open for abuse by police who were free to interpret it differently depending on whom they were applying the law to." "Everyone benefits when laws are clear and unambiguous, and that is especially true when the First Amendment is implicated," said Willis. "Hopefully, Virginia Beach's next noise ordinance will both protect free speech and give residents, business owners and law enforcement officials specific directions when noise is an issue." Virginia Beach could correct its noise ordinance by stating a maximum decibel level at which sound can be heard at a specified distance from its source, as other localities have done. In this way, there is a quantifiable method by which to decide if someone is being too loud. The ACLU of Virginia and the Thomas Jefferson Center for the Protection of Free Expression filed a friend-of-the-court brief on behalf of Tanner and Williams in December 2008 arguing that the ordinance violated the First Amendment. http://www.aclu. org/content/court-stops-detroit-police-using-noise- ordinance-agai nst-picket-Ii ne-protesters Court Stops Detroit Police from Using Noise Ordinance Against Picket Line Protesters February 12,1999 FOR IMMEDIATE RELEASE Friday, February 12, 1999 DETROIT --A federal district judge today halted enforcement of a noise ordinance here in a suit brought by the American Civil Liberties Union of Michigan on behalf of locked-out Detroit newspaper workers. Since last summer, locked-out workers have blown whistles while picketing in front of the Detroit News and Free Press building in downtown Detroit, to remind passersby that the labor struggle at the newspapers continues. Police officers have periodically interrupted the demonstrations with threats to ticket the protesters under a local noise ordinance. But United States District Judge John Corbett O'Meara granted a temporary injunction against enforcement of the ordinance today, saying the law, which makes it a crime to make "annovinl!" or "disturbinl!" noises, was unconstitutionallv val!ue. "The courts recognize enthusiastically that any impingement on First Amendment rights is subject to the closest scrutiny," Judge O'Meara said. "Even minimal loss of First Amendment rights constitutes irreparable injury." Kary Moss, Executive Director of the ACLU of Michigan hailed the ruling. "This decision affirms that the First Amendment protects all political speech," she said. "Vague laws like the Detroit Noise Ordinance have a chilling effect on politica] expression because protestors are unsure of what expression is permitted and what is criminal." The case was argued by ACLU cooperating attorney Marshall Widick of the Detroit law firm Sachs, Waldman, O'Hare, Boggs & McIntosh. "This is a victory for the former Detroit newspaper strikers who can continue to tell their side of the ongoing labor dispute. In addition, this is a victory for the people of Detroit whose constitutional rights have also been threatened by the Detroit Noise Ordinance," Widick said. Read the ACLU's earlier release on the case at /news/n]22398d.htm] http://www . newru I es. orq/ e nvi ran ment/ru les/no ise-poll ution/noise-poll ution- a m pi ified-noise-ord i n a nces Noise ordinances versus music ordinances Submitted by Chas Glass (not verified) on Sun, 05/16/2010 - 18:33. This web page shows a model "noise" ordinance regulating amplified music, and a Nashville, Tennessee ordinance subsection regulating noise from automobiles. While the Nashville ordinance appears on its face to be enforceable, in stark contrast the model ordinance regulating amplified music is almost certainly unconstitutional, as federal courts have consistently found outdoor music performances to be protected free speech. [MICHAEL BERGER, a/k/a/ "MAGIC MIKE" v. City of Seattle, et aI., Order on summary judgment in favor of Michael Berger filed 4/22/2005] In the words ofthe Federal District Court in Seattle: "Although the First Amendment prohibits 'abridging the freedom of speech,' some abridgements pass constitutional muster.... The government can regulate speech in a traditional public forum as long as the regulation meets the 'time, place, or manner' test. [It must be] (I) Justified without reference to the content ofthe regulated speech,' (2) narrowly tailored to serve a significant governmental interest' and must (3) 'leave open ample alternative channels for communication of the information.'" An ordinance that restricts only amplified music would not meet the "narrowly tailored test," because it does not equally restrict amplified speech generally. An ordinance that restricts amplified speech would not meet this test because it does not equally restrict unamplified speech. The Nashville Ordinance is much more likely to meet constitutional muster because automobiles on roads, in parking lots, etc., are not occupying a traditional public forum to which the "time, place, or manner test" would apply. The point is, an ordinance that specifically targets street musicians and outdoor music venues in or adjacent to a traditional public forum will not pass constitutional muster. And as for the sound being "clearly audible" from 25 or 50 feet, as the term is defined, a person speaking on a cell phone can be clearly audible at a distance of 50 feet, and would certainly be clearly audible at a distance of25 feet. Children playing can be clearly audible at distances of 25 and 50 feet. An ordinance that applies to music but not, for example, to people speaking on cell phones or to each other, or calling out to someone to get their attention, or children at play, will not meet the "narrowly iailored" test and will be unconstitutional. Consider, for example, the size of a little league baseball field. The distance from the pitcher's mound to where the home plate umpire stands is almost exactly 50 feet. Try to imagine live music at that distance, and how quiet it must be so that you can't even detect bass notes or rhythm, much less a vocalist. It's absurd. CITY OF ASHLAND Council Communication Meeting Date: Department: Secondary Dept.: Approval: Ordinance Revising the Public Contracting Code November 2, 2010 Primary Staff Contact: Megan Thornton City Attorney's Office E-Mail: thorntm@ashland.or.us Public WorkslFi ce Secondary Contact: FaughtlTuneberg Martha Benne Estimated Time: 5 minutes Question: Should the City Council approve the Second Reading of an 'ordinance titled, "An Ordinance Relating to Public Contracting and Amending AMC 2.50.080, 2.50.090, 2.50.100, 2.50.120, and 2.50.130"? Staff Recommendation: Staff recommends Council approve the Second Reading and adopt the Ordinance. Background: The City adopted a new Public Contracting code in May 2010. After utilizing the new code for the last four months City Staff recommended additional revisions to clarify some ambiguities and streamline the processes in the new code. The following changes were incorporated: . Instead of authorizing the issuance of solicitation documents, the Local Contract Review Board will approve the award of all contracts that require formal competitive solicitation or bids. . The dollar value for small procurements was inserted for easy reference by staff. . Redundancies were eliminated by only requiring the Finance Director to endorse the amount of the contract if the contract amount exceeds the amount approved on the requisition documents. . It is now clear that findings regarding availability of city personnel and resources are only required for Intermediate Procurements of personal services. . The ordinance clarifies that all records shall be retained in accordance with OAR 137-047- 0620. , Related City Policies: City Charter Article 10, Ordinance adoption provisions Council Options: 1.) Move to approve the Second Reading and adopt the ordinance. 2.) Postpone consideration of the proposed ordinance. Potential Motions: Staff: Conduct Second Reading of the ordinance by title only. Council: Motion to approve Second Reading and adopt the ordinance. Attachments: . Proposed ordinance Page I of 1 ,,~, ORDINANCE NO. AN ORDINANCE RELATING TO PUBLIC CONTRACTING AND AMENDING AMC 2.50.080, 2.50.090, 2.50.100, 250.120, AND 2.50.130 Annotated to show deleticlIIs and additions to the code sections being modified. Deletions are bold" .. and additions are bold underlined. WHEREAS, Article 2. Section I of the Ashland City Charter provides: Powers of the Citv The City shall have all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession; WHEREAS, the above referenced grant of power has been interpreted as affording all legislative powers home rule constitutional provisions reserved to Oregon Cities. Citvof Beaverton v. International Ass'n of Firefighters, Local 1660, Beaverton Shop. 20 Or. App. 293, 531 P 2d 730, 734 (1975); , WHEREAS, AMC 2.50, Local Contract Review Board, was adopted in May 2010; WHEREAS, the implementation ofthe new public contracting procedures has resulted in the need for minor amendments. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Section 2.50.080 [Formal Processes - Competitive Sealed Bidding and Proposals] is hereby amended to read as follows: 2.50.080 Formal Processes-Competitive Sealed Bidding and Proposals Except as otherwise expressly provided herein, in addition to the requirements of the Model Rules and the Oregon Public Contracting Code: A. The Finance Director must sign off that there are appropriate funds for the project before the project is put out for bids. , B. The City Attorney must determine that the contract is appropriate as to form before the project is put out for bids. In addition. the City Attornev shall review all formal competitive solicitations or formal competitive bids to ensure that the appropriate process is beinl! followed. Ordinance No. Page I of7 C. The Loeal Contraet Re;iew Raard shall authorue solieitations of eompetitive sealed bids and eompetitiYe sealed proposals. D. The City }.Horney shall review all !ermal eompetiti,..e solieitations or !ermal eompetitive bids to ensure that the appropriate proeess is being followed. C. The Local Contract Review Board shall approve the award of all contracts for which the Ashland Municipal Code or the Orel!on Public Contractinl! Code reauire formal competitive solicitations or formal competitive bids. D.-E. Electronic Solicitation. Competitive sealed bids and competitive sealed proposals may be available online, but applicants will NOT be able to submit their proposals and/or responses online. Bids and proposals must be delivered in hard copy form to the City in accordance with the requirements for the competitive solicitation. Individuals that obtain the solicitation materials electronically are responsible for regularly checking for instructions, addenda, and related materials. SECTION 2. Section 2.50.090 [Exemptions from Formal Competitive Selection Procedures] is hereby amended to read as follows: 2.50.090 Exemptions from Formal Competitive Selection Procedures All Public Contracts shall be based upon Competitive Sealed Bidding (Invitation to Bid) or Competitive Sealed Proposals (Request for Proposal) pursuant to ORS 279A - 279C and the Model Rules except for the following: A. Contracts listed in ORS 279A.025(2). B. Purchases through federal programs as set forth in ORS 279A.180. C. Public Improvement Contracts that qualify for exemption as set forth in 279C.335. D. Small Procurements - a public contract not exceeding $5,000. 1. Small Procurements shall be awarded in accordance with ORS 279B.065, OAR 137-047-0800, OAR 137-047-0265 and all other applicable provisions oflaw. E. Intermediate Procurements - a public contract for goods and services greater than $5,000 and less than $100,000. I. Intermediate Procurements shall be awarded in accordance with ORS 279B.070, OAR 137-047-0800, OAR 137-047-0270 and other applicable provisions oflaw. F. Sole Source Procurements - a public contract in which the Department Head finds in writing that there is only one provider of a product or service of the quality and type required available. 1. Sole-source procurements shall be awarded in accordance with ORS 279B.075 and all other applicable provisions oflaw. G. Special Procurements - a public contract for a class special procurement, a contract specific procurement or both, based upon a contracting procedure that differs from procedures described in ORS 279B.055, 279B.060, 279B.065, 279B.070. The contracting approach may be custom designed to meet the procurement needs. . Ordinance No. Page 2 of7 I. Special procurements shall be awarded in accordance with ORS 279B.085 and all other applicable provisions oflaw. H. Emergency Procurements - a public contract that is necessary because an emergency exists meaning there are circumstances creating a substantial risk ofloss, damage, interruption of services or threat to public health, safety, welfare, or property that could not have been rea,sonably foreseen and requires prompt execution of a public contract to remedy the condition. I. Emergency procurements shall be awarded in accordance with ORS 279B.080 and all other applicable provisions oflaw. 1. The following classes of contracts are hereby specifically exempted from the Oregon Public Contracting Code and Model Rules pursuant to ORS 279A.025(t): I. Contracts for the purchase of materials where competitive bids for the same materials have been obtained by other public agencies or the federal government whose processes for bid and award are substantially equivalent to those set forth herein, and the contract is to be awarded to the party to whom the original contract was awarded as Ion I! as no material chanl!e is made to the terms. conditions. or prices of the oril!inal contract. sa long as the f1riee of the materials is the same or lower than that in the original eon tract. . 2. Contracts for licenses and maintenance of computer hardware, computer software, and telecommunications products (including cable, video and television products). 3. Purchase of items or services of an artistic nature, including, but not limited to public art. 4. Contracts for removal, cleanup or transport of hazardous materials. As used in this Subsection, "hazardous materials" include any material or substance which may pose a present or future threat to human health or the environment, including Hazardous Wa:;te as that term is used in the Resources Conservation and Recovery Act (42 USC 6901 et seq.). 5. Contracts for purchase of used motor vehicles, defined as any motor vehicle that is at least one year old. 6. Contracts for the purchase of used heavy construction equipment. 7. Contracts for the purchase of copyrighted materials where there is only one supplier available within a reasonable purchase area for such goods. 8. Contracts for the purchase of advertising, including legal advertising intended for the purpose of giving public notice. 9. Contracts for the purchase or sale of all utilities including, but not limited to, electric power, gas, water, sewage, internet, cemetery lots, cable and telecommunication services, and the sale of telecommunication materials or products or other services, materials or products traditionally provided by the City. 10. Contracts for the purchase of goods or services where the rate or price for the goods or services being purchased is established by federal, state or local regulating authority. Ordinance No. Page 3 of? SECTION 3. Section 2.50.100 [Informal Process - Process for Exempt Procurements] is hereby amended to read as follows: 2.50.100 Informal Process - Process for Exempt Procurements The following process shall apply to all contracts that are exempt from formal competitive selection procedures in AMC 2.50.090. A. The Public Contracting Officer is responsible for determining whether a project is subject to an exemption pursuant to AMC 2.50.090 that will allow a process other than a formal solicitation. Except for small procurements and emergency procurements, it is the responsibility of the Public Contracting Officer to evaluate whether an exemption exists and write findings consistent with Oregon law to document the exemption. A copy of the written findings shall be given to the City Attorney. If an exemption is approved all applicable provisions ofthe Oregon Public Contracting Code and the Model Rules must be followed. Notwithstanding the exemptions, the City Attorney, the Public Contracting Officer, or Local Contract Review Board may require a formal competitive solicitation to ensure the purposes ofthis Chapter. B. Except for small procurements equal to or less than $5.000. and emergency procurements, any informal procurement process, listed in AMC 2.50.090 shall require the Public Contracting Officer to obtain written authorization from the Finance Director to ensure that adequate funds are available for the project. C. For intermediate procurements of any amount the contracting agency shall use a written solicitation to obtain quotes, bids, or proposals. D. For all contracts over $5,000 the City Attorney must determine that the contract is appropriate as to form before the contract is awarded. Use of a City standard form contract negates the need for legal sign off on all informal contracting processes. E. After the procurement process is complete, the Public Contracting Officer must execute the procurement contract, and the Finance Dire<:tor must endorse the amount of the contract if the value of the contract exceeds the amount orii!inallv approved bv the Finance Director on the requisition documents. F. The Public Contracting Officer must execute any change orders or amendments to the contract that are authorized under the Oregon Public Contracting Code or the Model Rules. SECTION 4. Section 2.50.120 [Personal Services Contracts] is hereby amended to read as follows: 2.50.120 Personal Services Contracts A. A personal service contract that does not exceed $35,000 may be awarded by direct appointment. Personal Services Contracts that are for contract amounts greater than $35,000, but less than $75,000 shall follow the process for Intermediate Procurements as outlined above. In addition, for personal services contracts 2reater than $5,000, but less than $75,000, the Public Contracting Officer shall make findings that City personnel are not available to perform the services, and that the City does not have the personnel or Ordinance No. Page 4 of7 resources to perform the services required under the proposed contract. However, the City Attorney, the Public Contracting Officer, or Local Contract Review Board, can require a formal solicitation for bids to ensure that the purposes of this chapter are upheld. 1. Class Exemption - Attorney Services. Personal service contracts for legal counsel, legal services, expert witnesses, court-appointed attorneys, stenographers and other legal services are exempt from the competitive procurement requirements of this section and may be entered into based upon the judgment of the City Attorney. The City Attorney shall obtain City Council approval of any expenditure for legal services paid to a single legal services provider that is expected to exceed $50,000 prior to entering into the contract. In addition, except for legal counsel hired by the City to provide legal services to indigent criminal defendants prosecuted by the City, the City Attorney shall select and retain all outside legal counsel hired by the City subject to the approval of the City Council. 2. Pre-qualified Pool Exemption. The City may directly award a personal services contract that does not exceed $100,000 to a provider that has been selected to be on a list of: a. The City's current list of qualified providers through a formal process; or b. From another public contracting agency's current list of qualified providers as long as the public contracting agency uses a process substantially similar to the City's to derive the list. 3. Continuation of Work Exemption. Personal service contracts of not more than $100,000 for the continuation of work by a contractor who preformed preliminary studies, analysis or planning for the work under a prior contract may be awarded without competition if the prior contract was awarded under a competitive process and the Public Contracting Officer determines that use of the original contractor will significantly reduce the costs of, or risks associated with, the work. B. The Local Contract Review Board is hereby opting out of OAR 137-048 regarding architectural, engineering, and land surveying services. C. The standard procurement rules adopted above shall apply to such contracts, as well as the following personal services selection criteria: I. Specialized experience in the type of work to be performed; 2. Capacity and capability to perform the work, including any specialized services within the time limitations for the work; Ordinance No. Page 5 of7 3. Educational and professional record, including past record of performance on contracts with governmental agencies and private parties with respect to cost control, quality of work, ability to meet schedules, and contract administration where applicable; 4. Availability to perform the assignment and familiarity with the area in which the specific work is located, including knowledge of designing or techniques peculiar to it, where applicable; 5. Cost of the services; and 6. Any other factors relevant to the particular contract. SECTION 5. Section 2.50.100 [Informal Process - Process for Exempt Procurements] is hereby amended to read as follows: 2.50.130 Record Keeping All records shall be retained in accordance with OAR 137-047-0620. To facilitate contract file record keeping and reduce accounting and auditing difficulties in having dispersed contract files, each city department will maintain a complete file on all contracts executed on behalf of that department. Information to be included in the file shall include, at a minimum: A. Any and all invitation for bids, requests for proposals, and any advertisements; B. Council consent authorizing contract execution when applicable; C. Copies of the signed contract, any required insurance certificates, bonds, or other bid security; D. Any approved Local Contract Review Board waivers; and E. List of who the solicitation documents were sent out to or the list of plan holders. The City Recorder's Office shall retain the original executed contract as well as original copies of any required insurance certificates, performance bonds, and payment bonds or other bid security. The department which is responsible for the procurement shall continually monitor insurance certificates to ensure the City remains an additional insured and that the other party has sufficient coverage. SECTION 6. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. SECTION 7. Codification. Provisions of this Ordinance shall be incorporated in the dty Code and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another word, and the sections of this Ordinance may be renumbered, or re-lettered, provided however that any Whereas clauses and boilerplate provisions (i.e. Sections 6-7) need not be codified and the City Recorder is authorized to correct any cross-references and any typographical errors. Ordinance No. Page 6 of7 The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the _.day of ,2010, and duly PASSED and ADOPTED this _ day of ,2010. Barbara M. Christensen, City Recorder SIGNED and APPROVED this _ day of ,2010. John Stromberg, Mayor Reviewed as to form: Richard Appicello, City Attorney Ordinance No. Page 7 of? CITY OF ASHLAND Council Communication Ordinance Relating to Public Rights of Way and Amending AMC 13.02 Meeting Date: November 2,2010 Primary Staff Contact: Mike Faught Department: Community Development E-Mail: faughtm@ashland.or.us Secondary Dept.: Legal Secondary Contact: Megan Thornton Approval: Martha Benne Estimated Time: 10 minutes Question: Will the Council approve First Reading of an ordinance titled, "An Ordinance Relating to Public Rights of Way and Amending AMC 13.02" and move the ordinance on to Second Reading? Staff Recommendation: Staff recommends Council approve the First Reading of this ordinance and set the matter for Second Reading. .' Background: This ordinance modifies AMC Chapter 13.02 Public Rights of Way in order to codify encroachment permits. The encroachment permit is issued for private long-term use of public right-of-ways and easements such as landscaping, parking, accesses, etc. The proposed ordinance allows the City to better regulate long term. use of AsWand's public rights of way, public easements, and public places consistent with current practice. The benefits to codifying the encroachment permit processes include: . Circumstances that require an encroachment permit are clearly defined; . Encroachments that are exempt from the permitting process are stated; . Standards for issuance of a permit are delineated so that Staff can easily determine if an application meets the criteria for granting of a permit; and . Allows the Public Works Director to impose conditions on permit issuance. Related City Policies: Ashland City Charter Article X, Ordinance Adoption Procedures. Council Options: (I) Move to approve First Reading of the ordinance and set the matter for Second Reading. (2) Postpone First Reading of the proposed ordinance. Potential Motions: Staff: Conduct First Reading by title only. , Council: Move to approve First Reading of the ordinance and set the matter for Second Reading. Attachments: Proposed ordinance Page I of 1 r~' ORDINANCE NO. AN ORDINANCE RELATING TO PUBLIC RIGHTS OF WAY, AND AMENDING AMC 13.02 Annotated to show deletions and additions to the code sections being modified. Deletions are bold lined through and additions are bold underlined. WHEREAS, Article 2. Section I of the Ashland City Charter provides: Powers of the Citv The City shall have all powers which the constitutions, statutes, and common law of the United States and of this State expressly or impliedly grant or allow municipalities, as fully as though this Charter specifically enumerated each of those powers, as well as all powers not inconsistent with the foregoing; and, in addition thereto, shall possess all powers hereinafter specifically granted. All the authority thereof shall have perpetual succession; WHEREAS, the above referenced grant of power has been interpreted as affording all legislative powers home rule constitutional provisions reserved to Oregon Cities. Citv of Beaverton v. International Ass'n of Firefighters, Local 1660. Beaverton Shop, 20 Or. App. 293, 531 P 2d 730, 734 (1975); WHEREAS, the City wishes to codify its procedure for granting encroachment permits and other permits for public works. THE PEOPLE OF THE CITY OF ASHLAND DO ORDAIN AS FOLLOWS: SECTION 1. Section 13.02.010 [Definitions] is hereby amended to read as follows: 13.02.010 Definitions. For the purpose of this chapter, the following mean: A. Encroach: the act of a private individual extendin!! from their ahuttin!! private property into a public ri!!ht ofwav. public easement or public property. B. Encroachment: area in a public ri!!ht ofwav, public easement or public property that is bein!! encroached upon bv a private individual. C. Encroachment Permit: a revocable permit !!ranted bv the Public Works Director to allow permittee to encroach upon a public ri!!ht ofwav, public easement or public property where compliance with this chapter can be demonstrated. D.~ Person: Individual, corporation, association, firm, partnership, joint stock company, and similar entities. E. Public Easement: an easement !!ranted to the City for a public purpose, includin!!, but not limited to the purpose of instalIin!! or maintainin!! public or Ordinance No. Page I of7 private utility infrastructure for the provision of water. power. heat or telecommunications to the public. F. Public Property: real property owned bv the City and open to the public for public use. G.& Public rights-of-way: Include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements, and all other public ways or areas, including subsurface and air space over these areas. H. Public Works Director: the City Public Works Director or his/her authorized desil!:nee. 1.(; Within the city: Territory over which the city now has or acquires jurisdiction for the exercise of its powers SECTION 2. Sections 13.02.050 [Encroachments Permits within Public Rights of Way, Public Easements And Public Property] through 13.02.100 [Enforcement] are hereby added to read as follows: 13.02.050 Encroachment Permits. A. Permits Required for Encroachment: Exemptions. h Permits Required. It shall be unlawful for any person to do any of the followinl!: without first obtaininl!: a encroachment permit from the Public Works Director: !:. Erect or cause to be erected any structure. retaininl!: wall. or fence in a public ril!:ht ofwav. public easement. or public property. or b. Place or maintain any landscapinl!: materials or any type of fill in. over or upon any dedicated public ril!:ht ofwav. public easement or public property. 2. Specific Exemptions. Certain encroachments are exempt from the permit requirement of AMC 13.02.020. Exempt encroachments are those which would have a minor impact on the present or planned use of the public ril!:ht of way. public easement or public properlY and those which are expressly exempted herein. The followinl!: encroachments are exempt encroachments as lonl!: as they do not create a vision clearance hazard as defined in AMC 18.68.020: !:. Mailboxes and their enclosinl!: structures. b. Temporary sil!:ns and banners permitted bv the Sil!:n Code fAMC 18.96). c. Guard/handrails alonl!: edl!:es of driveway approaches. walks. stairs. etc. that encroach in public ril!:ht of way. and d. Lawns. plants and approved street trees encroachinl!: in public ril!:ht of way that do not obstruct visibility for pedestrians. bicvclists and motorists. 3. Additional Exemptions. The Public Works Director may l!:rant additional exemptions as lonl!: as the encroachment does not create a vision clearance hazard as defined in AMC 18.68.020. B. Application and Fee Required. Ordinance No. Page 2 of7 1. Anv person desirine to locate or maintain an encroachment shall submit an application to the Director of Public Works. The application shall include a description of the proposed encroachment and a scale drawine iIIustratine the nature and extent of the proposed encroachment and its relationship to adioinine properties. If the applicant is not the owner ofthe property that will be benefitted bv the encroachment, the owner of the benefitted property shall also sien the application as a co-applicant. The Public Works Director may require an actual survey to determine the exact location of any public or private improvements that will be encroachine in the rieht ofwav. 2. A fee in the amount established bv resolution of the City Council shall be paid at the time of the application. C. Review of Application. The Public Works Director shall conduct a review ofthe application for an encroachment permit to determine its compliance with the standards in AMC 13.02.060, and the Public Works Director shall request comments from affected City departments, utilitv companies and aeencies reeardine the impact of the proposed encroachment. 13.02.060 Standards and Conditions. The Public Works Director may approve the issuance of an encroachment permit for an encroachment where compliance with the followine standards can be demonstrated or specific findines are made that the standard is not applicable. The Public Works Director may attach any conditions to the issuance of the permit that are required in any applicable plan nine approvals or reasonablv related to ensurine compliance with this section, or other applicable City codes. A. Standards for Approval. 1: Horizontal clearances of at least five (5) feet shall be maintained on all sides of all utilities includinl! electrical power, communications, sewer, storm drain, and water. This distance shall be measured between proposed encroachments and existine or proposed utilitv lines, manholes, appurtenances. and fixtures. includine but not limited to fire hydrants. above eround transformers, cabinets, and other structures. Clearances around water meters shall be at least one (1) foot behind and two (2) feet from the sides when measured from the outside edl!es of the box. A larl!er horizontal clearance may be required if utilities mandate lareer clearances for specific structures; for example. additional clearance may be required in front of electrical cabinets and transformers. Requests bv utilitv providers for lareer horizontal clearances or additional conditions shall be considered for inclusion into the permit. The applicant shall pav for relocation of the existine utilitv lines. manholes, appurtenances, and fixtures if this standard cannot be met. Ordinance No. Page 3 of7 2. Vertical clearances between utilities and natural landscape materials or structures placed below or above those facilities shall be the distance required bv the affected utilities. Conditions requested bv the utilitv providers shall be considered for inclusion into the permit. 3. Proposed encroachments. improvements and temporarv measures shall not cover. prevent access to. or block the flow of water into inlets. basins. ditches. or drainae:e ways. Gradine: chane:es shall not otherwise alter the drainae:e patterns in the rie:ht of way without written approval of a e:radine: and erosions control plan bv the Public Works Director. 4. Sufficient space for off-street parkine:. loadine:. and pedestrian travel shall be maintained. The encroachment shall not result in a loss of area needed for parkine:. vehicular maneuverine:. or pedestrian travel. 5. It is determined that the requested encroachment is consistent with the current use of the public rie:ht ofwav. easement or public propertv. B. Conditions. 1." When the Public Works Director determines that allowine: the requested encroachment may subiect the Citv to potentialliabilitv. a condition of permit issuance shall be the filine: with the Citv Risk Mane:er of a policv of insurance and form of policv bv an insurance company licensed to do business in the State of Oree:on. The policv shall protect the Citv. its officers. ae:ents. and emplovees. and the abuttine: propertv owners. lessees and tenants from any and all claims for iniurv or damae:e to persons or propertv that mie:ht result from the placine: and/or maintenance of the permitted encroachment. The amount of the insurance policy shall be at least the limits of public body Iiabilitv under the Oree:on Tort Claims Act. The policy shall also contain a provision that the Citv Risk Manae:er shall be notified at least 30 days prior to any cancellation of such insurance. The permittee shall maintain the insurance for the term of the permit issued. Failure to maintain the insurance shall result in automatic revocation of the permit. 2. All work within the public rie:ht of way. public easement., or public propertv shall be consistent with ene:ineerine: plans. profiles. specifications. and standards approved by the Public Works Director in accordance with Citv requirements. 3. The Public Works Director may place a limit on the time the proposed encroachment may be located in or on the rie:ht of way. public easement or public propertv. 4. To ensure that encroachments do not contribute to yisual blie:ht or create a safetv hazard. conditions of permit approval may include a requirement that the encroachment be appropriately maintained. Ordinance No. Page 4 of7 S. The City may impose a charl!e for the use of the public ril!ht of way. public easement or public property. 13.02.070 Permit Issuance. A. The Public Works Director may approve. modify and approve, or deny the application for an encroachment permit. B. Ministerial decisions do not require interpretation or the exercise of policv or lel!al iudl!ment in evaluatinl! approval standards. Ministerial decisions include. but are not limited to. site plan approval of buildinl! or other specialty permits and final subdivision and planned unit development plans where there are no material deviations from the approved preliminary plans. Because no discretion is involved. ministerial decisions do not Qualifv as land use or limited land use decisions. The process requires no notice to any party other than the applicant. The Public Works Director's decision is final and not appealable bv any party throul!h the normal land use process. Ministerial decisions may be appealed as provided in AMC 13.02.040. 13.02.080 Appeals. The Uniform Administrative Appeals Process outlined in AMC 2.30 shall applv to all protests of encroachment permits. Failure to strictlv complv with the applicable appeal requirements. includinl! but not limited to the required elements for the written notice of appeal. time for minI! of the notice of appeal. and payment of the applicable appeal fee. shall constitute iurisdictional defects resultinl! in the summary dismissal of the appeal. The Hearinl! Officer's decision is final and not appealable bv any party throul!h any land use process. The Hearinl! Officer's decision may onlv be appealed throul!h a writ of review proceedinl! in Jackson County Circuit Court. 13.02.090 Revocation of Permits. All ril!ht ofwav, easement or public property encroachment permits shall be revocable bv the City at any time such revocation would be in the public interest. No I!rant of any permit. expenditure of money in reliance thereon. or lapse of time shalll!ive the permittee any ril!ht to the continued existence of an encroachment or to any damal!es or claims al!ainst the City arisinl! from a revocation. Anv permit issued under this section shall be automaticallv revoked if the permittee fails complv with any conditions ofthe permit. or fails to bel!in installation of the allowed encroachment within ninety (90) days after issuance of the permit unless an extension is requested prior to the expiration of the ninety (90) day period. 13.02.100 Removal of Encroachment. Upon revocation. the permittee or any successor permittee shall. at the permittee's own expense. remove the permitted encroachment within thirty (30) days after written notice has been provided bv the City unless a shorter period is specified in the notice of Ordinance No. Page 5 of7 revocation. If the permittee does not remove the encroachment and retnrn the ril!:ht of wav. public easement or public property area to a condition satisfactory to the Public Works Director. the Citv shall do so and the permittee shall be personallv liable to the Citv for anv and all costs of returninl!: the ril!:ht of wav. public utilitv easement or public propertv to a satisfactory condition. includinl!: the removal of structures and reconstruction of streets and/or pathwavs. If the permittee fails to pav the Citv for the costs incurred after the Citv bills permittee. the costs shall be imposed as a lien upon the property. Payment of such costs shall not prevent the Citv from pursuinl!: any other remedy available at law or pursuinl!: any other penaltv. 13.02.110 Liabilitv. The permittee. and owner of the benefitted propertv if different than the permittee. shall be liable to any person who is iniured or otherwise suffers damal!:e by reason of any encroachment allowed in accordance with the provisions of this section. Furthermore. the permittee shall be liable to the Citv of Ashland. its officers. al!:ents and employees. for any iudl!:ment or expense incurred or paid bv the Citv. its officers. al!:ents and employees. by reason of the existence of an approved encroachment. 13.02.120 Enforcement. A. Installation or maintenance of an encroachment in violation of AMC 13.02.01 O. or failure to obtain an encroachment permit as required by AMC 13.02.010. or to comply with the terms and conditions of an encroachment permit issued thereunder is hereby declared a civil infraction subiect to enforcement pursuant to AMC Chapter 1.08. B. Installation or maintenance of an encroachment in violation of AMC 13.02. or an encroachment permit issued pursuant to AMC 13.02.020 is hereby declared to be a public nuisance as defined by AMC Chapter 9.08. which may be abated pursuant to AMC Chapter 1.08. SECTION 3. Section 13.02.050 [Obligations of City] is hereby amended to read as follows: 13.02.030 13.02.130 Obligations of City The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right.of.way for public access and does not obligate the city to open or improve any part of the right-of-way. Upon improvement of any public right-of-way to city street standards, the city shall accept by resolution the improvement and maintain and repair such improvement to the standard to which it has been improved. For purposes of nuisance-type ordinances imposing obligations upon property owners, (e.g. snow removal, weeds and noxious vegetation, sidewalk maintenance) the city shall be responsible for compliance with such ordinances in public rights-of-way adjacent to or abutting city-owned or controlled real property. Ordinance No. Page 6 of7 SECTION 4. Severability. The sections, subsections, paragraphs and clauses of this ordinance are severable. The invalidity of one section, subsection, paragraph, or clause shall not affect the validity of the remaining sections, subsections, paragraphs and clauses. SECTION 5. Codification. Provisions of this Ordinance shall be incorporated in the City Code and the word "ordinance" may be changed to "code", "article", "section", "chapter" or another word, and the sections of this Ordinance may be renumbered, or re-lettered, provided however that any Whereas clauses and boilerplate provisions (i.e. Sections 4-5) need not be codified and the City Recorder is authorized to correct any cross-references and any typographical errors. The foregoing ordinance was first read by title only in accordance with Article X, Section 2(C) of the City Charter on the _ day of ,2010, and duly PASSED and ADOPTED this _ day of ,2010. Barbara M. Christensen, City Recorder SIGNED and APPROVED this _ day of ,2010. John Stromberg, Mayor Reviewed as to form: Richard Appicello, City Attorney Ordinance No. Page 7 of7