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. M I NUT E S EUGENE CITY COUNCIL June 10, 1974 Regular meeting of the Common Council of the city of Eugene, Oregon was called to order by His Honor Mayor Lester E. Anderson at 7:30 p.m. on June 10, 1974 in the Council Chamber with the following Council members present: Tom Williams, James Hershner, H. C. McDonald, Wickes Beal, Beth Campbell, Gus Keller, Neil Murray, and Robert Wood. . (0001) I - Public Hearings A. Vacation of alleys between 6th and 7th, Willamette and Olive, and between 7th and 8th for one-half block west from Willamette (ERA) Recommended by the Planning Commission on April 8, 1974. '. - (0245 ) (0254) ." Co 36 8 )_ ~ I Public hearing was opened. Lloyd Hamel, attorney; Delna Jones, District Manager; Pat Hickey, Commercial Manager; and Lawrence Haverkamp, District Engineer, were introduced as representatives of Pacific Northwest Bell. Mr. Hamel said that the Council's authority under the franchise to require a change of location of faciEities;on the public right-of-way did not apply to buried conduit. Even~h9-uga poles and like structures were removed because of a previous alley vacation petitioned by the Renewal Agency, Mr. Hamel said, Pacific Northwest Bell should not be required to remove them for ERA or beneficiaries of ERA action. He referred to pole facilities in the east/west alley .and buried conduit in the north/south .alley between 6th and 7th';, they had no facilities located in the alley: between 7th and 8th. He said that because PNB had permission to place the conduit in the right-of-way and because of vested interest therein they could not be forced to remove it without compensation. He urged amendment of the vacation ordinance to reserve PNB rights in all alleys involved. He thought the public interest would be better served by use of buried facilities, and that the Council could not require relocation unless it could be shown that. its continued presence was a public nuisance. Mr. Hamel said copies of his arguments had been presented to the City Attorney's office and that although he agreed with ERA's attorney that other authorities, required removal of the cable, he believed those other authorities reached different conclusions based upon differently phrased franchise terms and statutes not appl~cable to this situation. He referred to a situation in Portland where PNB.and the public agency were forced' to settle their differences, and said he felt the same could apply here - if the franchise agreement was discussed the cable would not have to be relocated, and perhaps' the proposed construction on that block could be designed so as to keep the conduit substantially in place and build around it. .He asked postponement .of action on the vacation to give the opportunity to work out something of that nature with ERA and the developer. If that action was not taken, Mr. Hamel urged that the vacation be subject to PNB rights in the alleys vacated. Failing that, he asked vacation or the north/south alley in which the conduit was buried without prejudice to PNB right to continue maintenance of the conduit until PNB received compensation for relocating it. He added that PNB did not intend.to move one inch of cable until compensated,'which might require ex- tensive litigation. In answer to Mayor Anderson's remark that. he had asked for testimony in favor of the vacations, Mr. Hamel said that PNB did not resist the vacation .if it was, made subject to PNB rights. Joe Richards, attorney for Eugene Renewal Agency, commented on meetings with the City Attorney and legal couns.el for PNB. He pointed out that no provision of State law, City ordinance, or franchise agreement permitted or required reimbursement to private utilities. And he said that the time element should not be overlooked. Postponement was necessary because it had been suggested toPNB previously that Renewal Agency plans go forward and then litigate the question of compensation. However, he said, PNB indicated an that time also that they would not remove the conduit until the matter had been litigated and compensation paid. Mr. Richards went over legal questions involved and noted ambiguity of the franchise agreement in its reference to removal or relocation of "poles or other structures" when they interfere with public convenience and the differing opinions as to whether "other structures" was intended to cover conduit. He cited cases stating-that franchise rights were not vested property, rights, merely permissive use when public need required it. He pointed out that postponement could delay closing out the ERA downtown project and run into considerable ~xtra expense, and that the City Attorney's opinion was that the City.was entitled to vacate the areas immediately without provision for compensation. He 'urged-immediate action in line with that advice especially in view' of the fact that PNB had previously removed conduit in like circumstances. Public hearing was closed;' there being no, further testimony. \~~ 6/10/74 - 1