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HomeMy WebLinkAboutCC Minutes - 09/12/05 WS MINUTES Eugene City Council Work Session McNutt Room-Eugene City Hall September 12, 2005 5:30 p.m. COUNCILORS PRESENT: George Poling, Jennifer Solomon, Bonny Bettman, David Kelly, Betty Taylor, Gary Pape, Andrea Ortiz, Chris Pryor. Mayor Kitty Piercy called the September 12,2005, work session of the Eugene City Council to order. A. COMMITTEE REPORTS AND ITEMS OF INTEREST FROM MAYOR, CITY COUNCIL, AND CITY MANAGER Mayor Piercy expressed appreciation for the opportunity to attend the "privilege" training in which the council recently participated. Mayor Piercy expressed appreciation for City employees' response to the victims of Hurricane Katrina in the Gulf Coast area. She said many community members were involved with assisting the victims in what was becoming an enormous humanitarian effort. Mayor Piercy said she attended the opening of the Mayor's Art Show on September 9 and had selected as the Mayor's Choice a piece of art that represented new beginnings and lots of possibilities ahead. She encouraged the council to view her selection at the show. Ms. Solomon had no items. Ms. Taylor said she attended the Southeast Neighbors picnic the previous day as well as the labor union picnic on Labor Day, both of which she enjoyed. She said the labor union picnic reminded her of the need for the council to work on a living wage ordinance. She noted her attendance at a Cuthbert Amphitheater event following the neighborhood picnic, and said the music and the weather were both good. She was accompanied by two 13-year old boys who enjoyed the event as much as the adults in attendance. Ms. Taylor regretted that the City was charging $5 for parking at the amphitheater. Ms. Taylor said on September 25 she would attend the last meeting of the National League of Cities task force on the No Child Left Behind Act, at which members would be finalizing their recommendations for lobbying when the act comes up for renewal. She invited those with ideas about needed changes to the act to contact her. Mr. Kelly reported on the most recent meeting of the Lane County Task Force on Public Safety, on which he and Mayor Piercy served. He said that the County and municipal representatives reached consensus about the desirability of a mix of services to cover the shortfalls in a variety of areas. Those present agreed a reasonable first step was to attempt to achieve half of the needed funding, which was estimated to be $38 million annually. Representatives also reached consensus that a property tax was not the desired funding mechanism. Although the recent meeting was intended to be the task force's last, one more meeting would MINUTES-Eugene City Council Work Session September 12, 2005 Page 1 occur on September 28 to discuss what sort of funding mechanism would be used. Those mechanisms receiving most discussion were a mix of personal and corporate income taxes or a sales tax. Mr. Kelly determined from an informal poll of councilors that the council had interest in a work session regarding possible funding sources for public safety services before that date. Ms. Bettman thanked staff for including the agenda items for the neighborhood group meetings on the public meetings calendar. She had already found it useful information. Ms. Bettman shared Mayor Piercy's appreciation for City employees who contributed both their money and skills to the victims of Hurricane Katrina. She considered the lessons of the hurricane as they regarded Eugene and had consulted her hazard plan, which was recently updated and distributed on computer disk to save paper. Ms. Bettman pointed out that in a disaster where the electricity was lost, it was not likely that computers would be available. She suggested the City balance the need to save paper against the need for a hard copy of the hazard plan to be available to all essential participants during a disaster. She suggested the council discuss next steps at a later time. Mr. Pryor said the Human Services Commission scheduled a meeting between partners to discuss roles but it had to be canceled and would be rescheduled. He looked forward to that discussion, which he thought would be important in clarifying how all partners worked together. Mr. Pryor said the McKenzie Watershed Council met the previous week and heard a presentation on the Coburg wastewater treatment system proposal. Mr. Pryor also commended the recent privilege training. Mr. Pryor said he had been updating the council about the discussions he was having with citizens about parks, and he was making a concerted effort to let people know that the entire council would have to agree on any proposals that were made with regard to parks or parks planning. Ms. Ortiz said she recently attended the National Weed and Seed Conference in southern California. She noted the City's Weed and Seed grant was expiring soon, and it had provided valuable funding in the Bethel area for a variety of purposes. She felt empowered as a citizen by her participation on the Weed and Seed Board and thought the Weed and Seed effort had been very worthwhile. Ms. Ortiz said the Trainsong Neighborhood would have a cookout on September 21, to which all were invited. Mr. Poling reported on several upcoming meetings, including a meeting on the Sorrel Way traffic-calming project at the Spiritual Growth Center at 7 p.m. on September 21, a meeting of the Harlow Neighbors at Monroe Middle School on September 21, and a meeting regarding the Arcadia Street improvements on September 22 between 6 p.m. and 7:30 p.m. at the Garden Way Church on North Garden Way. Mr. Poling announced the Fire/Emergency Medical Services graduation would occur on September 16 at 2 p.m. at 2nd Avenue and Chambers Street. He regretted his inability to attend the graduation and asked Fire and Emergency Medical Services Chief Tom Tallon to convey his congratulations to the new firefighters and thank them for their service to the community. Mr. Poling reminded the viewing audience that school was back in session and asked drivers to be careful. MINUTES-Eugene City Council Work Session September 12, 2005 Page 2 Mr. Poling thanked Public Works Department staff for the street improvements adjacent to Bertha Holt Elementary School and thanked School District 4J for improving the school parking lot. He noted that the construction of Cal Young Middle School was progressing well. Mr. Poling noted a house fire that occurred on Chateau Meadows Drive on August 16 and said he had heard from several constituents about the event. He stated for the record that the issue was not related to hard boundaries and the response was not politically motivated. A mistake had been made and a dispatcher failed to follow dispatch protocol, delaying the fire truck's arrival on the scene. Mr. Poling said residents wanted to ensure that the error did not occur again, and wanted to know what supervision was in place when the event occurred. He requested a response from the City Manager. City Manager Taylor indicated he was looking into the incident and would follow up on Mr. Poling's questions. Mr. Poling said he phoned in a report on graffiti recently and later learned that the location that had been recorded for the incident by the police was in Springfield rather than in Eugene, where the actual incident was located. He questioned how the error occurred and requested that the manager follow up. Mr. Pape also expressed appreciation for the recent diversity training and regretted he was unable to attend the entire training because he needed to attend a meeting of the Oregon League of Cities Board of Directors in Salem. He said the board voted to disband its resolutions committee and have all resolutions come to the board directly on the Thursday before the annual League of Oregon Cities meeting. He was working to ensure that those who wished to advocate for a particular resolution were welcome to that board meeting. Mr. Pape reported he attended the Oregon Brownfields Conference and had been very impressed by the conference, particularly a field trip to River Place, which was located on brownfields and developed as a result of cooperation between the Department of Environmental Quality, private interests, and the Portland Development Commission. Mr. Pape said he had been meeting with constituents about parks issues and frequently relied on the City's election information prepared for the campaign for the parks and open space bond and offered to provide copies to interested councilors. Mr. Pape thanked City Manager Taylor for forming the River Avenue Committee, saying that process seemed to be going well. Mr. Pape announced that the new Madison Middle School opened earlier that day. Mr. Pape shared Mr. Poling's interest in knowing what went wrong with the fire response. Mr. Kelly expressed concern that the upcoming joint elected officials meeting regarding the Coburg wastewater proposal had been scheduled on a date when it appeared three councilors were unable to attend. He asked that staff attempt to reschedule the meeting. City Manager Taylor noted that the date selected was the earliest possible available date, and was the date that accommodated the most elected officials. City Manager Taylor introduced new Planning and Development Department Director Susan Muir, who was appointed to the position following a competitive process after serving as interim director. MINUTES-Eugene City Council Work Session September 12, 2005 Page 3 B. WORK SESSION: Initiating Code Amendments for Downtown-Related Zoning City Manager Taylor recalled that the item was scheduled for a work session after the council removed it from the July 18 Consent Calendar. He introduced Nan Laurence of the Planning and Development Department, who provided the council with a PowerPoint presentation on initiating code amendments for downtown-related zoning regulations. Ms. Laurence provided some background, explaining that the idea for a new zone for downtown arose from the Downtown Vision and was supported by the Downtown Plan, which was adopted by the council in April 2004. Implementing the Downtown Plan was a council priority issue. At the direction of the Planning Commission, staff worked with the Eugene Redevelopment Advisory Committee (ERAC), a council- appointed committee, to identify some issues related to development under the current code. Following a review of that work, the commission expressed consensus that the City needed to reexamine some of the requirements in the code. Ms. Laurence identified two goals for the project: 1) to align the Land Use Code with Growth Management Policies and the policies in the Downtown Plan; and 2) to support, encourage, and reinforce a vibrant, active, densely developed downtown. The City's overall goal was to develop zoning regulations that allowed an intensity and density of uses downtown and helped to implement the Downtown Plan. Ms. Laurence said the commission found there were gaps and overlaps in the regulations as well as conflicts. The commission agreed the code needed to be more consistent and effective in implementing the Downtown Plan. Downtown was at a competitive disadvantage to parts of the community in regard to costs and existing regulations increased that cost. Ms. Laurence shared maps of the existing downtown zones with the council to illustrate the complexity of the various zones and overlays. Ms. Laurence emphasized that the commission communicated to staff the message that flexibility was key to successful facilitation of creative projects. The commission was looking to create a balance in implementing the council's direction as expressed in the Land Use Code adopted in 2002, and the Downtown Plan, adopted in 2004. The commission believed there were areas of the code that could be improved. Ms. Laurence shared a preliminary list of issues that the commission believed warranted further examina- tion, suggesting that the council and public would likely add more items to the list. The list included: 1) transit-oriented development (TOD) overlay; 2) requirement for nonresidential uses on the ground floor; 3) limitation on surface parking; and 4) bicycle parking. Ms. Laurence elaborated on each issue, beginning with the TOD overlay. She said the overlay included a density requirement, or Floor Area Ratio (FAR) that may not be producing the desired results, and staff wished to take a closer look at that. Another concern in regard to the TOD overlay was its boundaries, which did not include all of downtown and extended outside downtown. Speaking to the issue of the FAR, Ms. Laurence shared two examples of development that represented the same amount of density; one example covered the entire development site with a one-floor building, while the second example showed a two-story structure occupying half the development site. MINUTES-Eugene City Council Work Session September 12, 2005 Page 4 Ms. Laurence spoke of the examples that arose during the commission's discussion, including the US Bank Building on Willamette Street and 8th Avenue, which at eight stories was less than 2.0 FAR, the library, which at four stories was barely 2.0 FAR, and Broadway Place, which at three stories was less than 2.0 FAR (1.55) because of the open space included in the development to add livability. The Heron Building was brought out to the street and had parking located behind the building, achieving urban design goals but resulting in a lower FAR of 1.47. Ms. Laurence shared examples of two possible developments on the present US Bank site to demonstrate how a low-rise commercial development and a high-rise commercial development at the same density would occupy the same site. She suggested the high-rise commercial development would produce a result more in line with the recommendations of the Downtown Plan, because while it included surface parking on a portion of the site, the surface parking could be redeveloped as another building. Ms. Laurence showed the council a slide of the TOD boundaries and identified where 1.0 and 2.0 FAR was required. She said the commission agreed the City should consider the long-term consequence of requiring a higher FAR outside the downtown core, as it could encourage development outside the core that the community might prefer to keep in the core. Ms. Laurence discussed the City's requirement for nonresidential uses on ground floors in residential structures in the C-2 zone. The commission agreed that the City needed to take a look at the requirement and reconsider its application in downtown. Ms. Laurence said the commission believed the City needed to balance its desire for ground-floor commercial with its desire for downtown residential development. She noted the many vacant storefronts that already existed in downtown, and said the requirement increased the cost of residential development in downtown, which was already higher than in other areas of the commu- nity. In addition, the requirement encouraged development on streets that were not designated as Great Streets and, given existing vacancies the community would have difficulty filling vacancies even on the Great Streets. Ms. Laurence discussed the limitation on surface parking contained in the C-3 zone. She suggested the issue required a balance of values; parking was needed to support commercial uses downtown, but the City had a desire for a densely developed downtown. Some surface parking might be needed to facilitate commercial development, with the proviso that such parking was not permanent. Ms. Laurence said the commission discussed the provision of such parking as a landbanking strategy, and agreed the entire issue needed further reexamination. Ms. Laurence discussed the issue oflong-term bicycle parking requirements. She said the code required a number oflong-term spaces be located in a building, but there could be more than one way to park bicycles. The City was working with the University of Oregon's Community Planning Workshop and the commu- nity's bicycling community on a survey to explore the issue. She asked if it was possible to have a code that was sufficiently flexible to accommodate bicycle ridership while allowing for a project to have a different response to the requirement for long-term parking. Ms. Laurence sought council initiation of the code amendments so staff could move forward with the implementation of the code amendments, beginning with a public process. She noted the next steps in the process, and emphasized that the council would be the final decision maker. Mayor Piercy solicited council comments and questions. MINUTES-Eugene City Council Work Session September 12, 2005 Page 5 Mr. Kelly questioned the need for the initiation of the code amendments. He pointed out that the Planning Division's work program included the minor Land Use Code amendments, and he did not recall that the council had to initiate those amendments. For that reason, he questioned why the council needed to act in this case. Ms. Laurence said staff was requesting the council initiate the action to ensure the process began in an open public forum and the council was aware of what staff was attempting to accomplish. It was possible that questions and issues could arise that were not yet identified. Ms. Laurence recalled that some of the previous minor code amendments had represented "clean-up" actions as opposed to substantive changes. While staff had believed it had direction in the Downtown Plan to proceed with the amendments, it seemed that greater clarity would be given to the effort if the council took formal action. Mr. Kelly suggested that council action to initiate the amendments would be a political choice as opposed to a legal choice. He said given the lack oflegal direction, it seemed a political or management judgment. Ms. Muir suggested it was a process judgment. Staff believed the more formal action was required because the work plan item called for implementation of the Downtown Plan. Mr. Kelly said that given the staff response and Ms. Laurence's remarks about the need for greater clarity in regard to the process, he thought it important whatever amendments the council initiated be bound by council direction in some way. If the commission or public identified new issues during the public process, the commission could send the council a memorandum asking if it objected to adding the new issue to the process. Mr. Kelly believed it was "way overstating" to say that there was consensus among the Planning Commis- sioners about any changes, as the minutes provided to the council indicated there was consensus to discuss the identified areas of concern but no consensus about the ultimate solutions. With regard to the role of the ERAC, Mr. Kelly agreed that ERAC was a stakeholder but was not representative of all stakeholders. Ms. Taylor wondered why the item was initially put on the Consent Calendar when it deserved further discussion. Ms. Laurence said it was an implementation item in the Downtown Plan and a logical extension of the work program. Ms. Taylor hoped anything controversial or that represented a substantial change would be discussed by the council in a work session rather than placed on the Consent Calendar. She hoped the council discussed each item identified by the commission separately. Ms. Solomon found the staff presentation useful and informative. She expressed appreciation for the questions being asked by the commission, and wanted to give the commission and staff free rein to do the needed work. She thought a great deal of effort was involved, but that the issues identified were a key to the future of downtown. Mr. Pape concurred with Ms. Solomon about the value of the presentation. He said the council should consider how it could make the code work better and help realize its vision for downtown. He reiterated a previous suggestion that the City consider angled parking in its downtown to accommodate more automo- biles. Mr. Pape favored looking at not only downtown, but at the courthouse area as well. Ms. Bettman thought it a stretch to say the four issues before the council implemented the Downtown Plan, which was conceptual in many ways. She pointed out that none of the initiatives implemented the trolley system, which was also included in the Downtown Plan. She suggested that a couple of the issues were counter-productive to the realization of the plan. MINUTES-Eugene City Council Work Session September 12, 2005 Page 6 In regard to the TOD, Ms. Bettman said transit-oriented development was nodal development. The idea behind nodal development was to have frequent, efficient transit in residential and commercial densities and intensities that facilitated the use of transit. Ms. Bettman supported reconsideration of the requirement for nonresidential uses on first floors in the C-2 district downtown. Speaking to the issue of bicycle parking, Ms. Bettman thought there were ways to externalize bicycle parking from the building to maximize the intensity of use in the building itself. Ms. Bettman objected that the only interest group with input into the list was the ERAC. She thought that committee already got its "very narrowly defined" issues on the table and other groups needed to be given that opportunity to put their issues on the table so the council could pick and choose among them those things it believed would help implement the highest priorities in the Downtown Plan. She thought that needed to occur before the council initiated an expensive code amendment process. Ms. Bettman wanted an idea of where that process would go before she voted to support it. Mayor Piercy solicited a second round of council questions and comments. Mr. Kelly liked Ms. Bettman's suggestion that the City solicit other ideas and suggestions from the public through a brief public process and that the council winnow those suggestions. Speaking to the four issues before the council, Mr. Kelly agreed with Ms. Bettman about the reexamination of the ground floor requirement in the C-2 zone in downtown. He likened the bicycle parking issue to the parking exempt zone for automobiles and suggested that if a developer was not required to construct bicycle parking, there should be readily available shared bicycle parking. Mr. Kelly agreed that the boundary issues associated with the TOD should be resolved. He supported simplified and consistent boundaries. Ms. Bettman recalled that the council discussed creating a Ballot Measure 37 compensation fund so that, for example, if it wanted to regulate for design standards it would have the ability to do so. If, through changes in the development regulation process, the City bestowed a financial advantage on a property owner, there would be a way for the City to recapture a portion of that benefit in the form of cash and place it in the Ballot Measure 37 fund, or it could work out some sort of exchange with the property owner for design standards. She pointed out that the council had planned to consider design standards to accomplish some of the initiatives in the Downtown Plan and now the council's hands were tied by the passage of the measure. The fact that fund had not been created prior to this process was an issue for Ms. Bettman. Ms. Bettman spoke to the issue of surface parking lots in the C-3 zone and the relationship to the FAR, and emphasized the importance of having multi-story buildings downtown. Such buildings were key to the TOD for creating an intensity of use. If the City densified residential uses, it should be equitable and densify other uses as well. The City lost the advantage of residential densification when it allowed other sprawling development in downtown. Ms. Bettman questioned if the code would allow someone to combine properties, demolish the existing buildings, and install surface parking lot on a portion of the site. Ms. Laurence said there was a limitation in the C-3 zone that precluded more than 20 surface spaces. The current code would preclude what Ms. Bettman suggested. Ms. Laurence added that if the City was to make a change to the code, staff wanted to ensure it knew what the issues were and then attempt to determine the correct solution. She did not think that the right solution was wholesale allowance of surface parking; rather, it could be a MINUTES-Eugene City Council Work Session September 12, 2005 Page 7 timing restriction in regard to development phases, an increase in parking tied to an increase in density, or a prohibition on surface parking on properties located on Great Streets. Ms. Bettman said she would need to see more information about the issue because she thought limiting surface parking in downtown was also essential to downtown. Ms. Taylor asked why the City would want to allow more parking. She thought the goal in the Downtown Plan was to reduce surface parking. Ms. Laurence suggested there was a balance between the needs of development and the City's desires for a dense and active downtown. Some uses needed a certain amount of surface parking before they could be persuaded to locate downtown. Ms. Laurence said there was no flexibility about the issue in the code, and the commission was questioning whether the selected number was the right number. She said that it could be that the solution was not a code amendment, but the issue kept surfacing as something that should be examined. Ms. Taylor agreed with Ms. Bettman and Mr. Kelly that more people should be asked to offer ideas. She expressed interest in having more information about the reason that ideas were proposed and who was behind the proposals so the council could discuss the proposals with them. She thought adjustments to the TOD boundaries and the issue of commercial uses on ground floors could be addressed quickly, but the other items on the list needed a lot more discussion. Mr. Pape expressed appreciation for Ms. Laurence's response to Ms. Taylor's question regarding surface parking. He believed that the council had attempted to push the market in regard to the Garden Way node rather than be flexible in regard to market demands, and the result was a development that was not that desired by the neighbors. Mr. Pape urged the council to be flexible in its requirements to allow the market to act. He did not think the council could drive the market. Mr. Pape asked if other examples had brought the issues before the council to the forefront. Ms. Laurence cited St. Vincent de Paul's Aurora Building as an example of a residential building with commercial space on the ground floor for which it had a difficult time finding a tenant. The same was true of Broadway Place. City Manager Taylor added staff was prompted to add the item to the Consent Calendar as a way to align the Downtown Plan and the code. He did not foresee a process that was limited to the issues before the council. Mr. Pape believed that all councilors wished to have an active and lively downtown, and suggested that Eugene's downtown would look different than that of Portland or Seattle because of its different size and marketplace. He thought the community was on the verge of seeing some real downtown revitalization because of the announced plans of downtown property owners, and hoped Eugene did not miss the opportunity. Mayor Piercy solicited a third round of comments and questions. Mr. Kelly said he did not expect to see actual code language before the council initiated a code amendment, but he believed it was important to have a clear scope of work. He had been concerned because, while he agreed with the goal of simplifying the code and making it consistent with the Downtown Plan, there were items with the potential of going the opposite direction, such as changes to the FAR or surface parking requirements. He needed to get over that concern to feel comfortable in going forward. Mr. Kelly also expressed appreciation for Ms. Laurence's remarks regarding surface parking but pointed out there was already a lot of surface parking in downtown and he was reluctant to create more. He MINUTES-Eugene City Council Work Session September 12, 2005 Page 8 suggested that may be better ways to employ existing surface parking, such as shared parking arrangements. Mr. Kelly said "need" was an interesting word; while the US Bank Building "needed" surface parking, there were eight-story banks in many locations without surface parking that thrived. He said market needs and land use needs must be balanced. Mr. Kelly had no interest in reducing the FAR but would like to have a discussion in which it was recast as two functional floors. Ms. Ortiz questioned whether the downtown needed more parking, but she did believe downtown needed longer term parking. She asked if three-hour parking could be tried, pointing out that most of her constitu- ents had to drive to downtown rather than walk or ride their bicycles and were unhappy when they received tickets, which kept them from coming back downtown. Mayor Piercy suggested that the council needed to have a broader conversation about parking in general to determine what was working. In regard to the development of first floors, she expressed concern that the City would react to past patterns as opposed to thinking about the future. Mayor Piercy did not know what would happen if development downtown accelerated and downtown became more energized. She suggested that could change how much people wanted to have the storefronts. Mr. Poling, seconded by Ms. Solomon, moved to extend time for the item by ten minutes. The motion passed, 5:3; Ms. Taylor, Mr. Kelly, and Ms. Bettman voting no. Mr. Poling, seconded by Ms. Solomon, moved to initiate amendments to Eugene Code Chapter 9 to more closely align the Land Use Code with the Downtown Plan. Mr. Poling pointed out the motion merely started a public process that could lead to possible changes to the code. Ms. Bettman, seconded by Mr. Kelly, moved to amend the motion to initiate a scoping process to bring a broader range of Eugene Code Chapter 9 options back to the council to more closely align the Land Use Code with the Downtown Plan. Ms. Bettman questioned the commission's decision to charge the ERAC with identifying issues related to the code and downtown, as the committee had a narrowly defined charge and the land use issues were of great interest to many residents. She believed there were more options the council should be considering, and she wanted to see those options and give more clear direction to staff before doing something as serious as initiating amendments to the code. Ms. Bettman said the process being proposed seemed premature. Ms. Solomon thought the amendment undermined the work already done by the Planning Commission. She pointed out that the commission had received input from a council-directed committee that was invested with the task of considering the downtown. Ms. Solomon thought that input was appropriate. She thought the proposed process a good start, and broadening the scope would threaten the commission's ability to do the needed work. Ms. Solomon trusted the work done by the commission and preferred to stick to the topics identified by the commission first. Mr. Kelly said the minutes indicated that commission had not determined that the issues identified by ERAC were priorities, merely that they deserved further examination. The commission only spent a small amount of meeting time on the issue. He supported the amendment because staff was asking for direction on the MINUTES-Eugene City Council Work Session September 12, 2005 Page 9 next steps in the process and he thought the amendment provided that direction. He suggested adoption of the motion was more likely to ensure what was eventually proposed would be adopted by the council. Mr. Kelly said that it was often said that downtown was everyone's neighborhood, but the "ERAC was not everybody, by a long shot." He said he respected the committee's work, but it was primarily formed to consider urban renewal district issues, and it had "a particular kind of approach to it." Adding everyone's perspective in a brief but deep outreach process would give the council a richer mix of approaches to accomplish the goal of more closely aligning the goals of the code with the Downtown Plan. Mr. Pape noted his interest in having a public hearing early in the process to hear what the public thought about some of the items. The vote on the amendment to the motion was a 4:4 tie; Ms. Taylor, Mr. Kelly, Ms. Bett- man, and Ms. Ortiz voting yes; Mr. Pape, Ms. Solomon, Mr. Poling, and Mr. Pryor voting no. Mayor Piercy cast a vote in support of the amendment, and it passed on a final vote of 5:4. The amended motion passed unanimously, 8:0. C. WORK SESSION: Standards for Outdoor Smoking Areas The council was joined by Keli Osborn of the Planning and Development Department for the item. Ms. Osborn reminded the council it requested an additional work session on the subject prior to the public hearing scheduled on September 26. Ms. Osborn reviewed several issues that remained to be resolved. The first was, if outdoor smoking areas were to be allowed, where were they to be allowed? She said staff recommended they be allowed at establishments that serve food and beverages. She did not know how many such businesses were involved, but noted that the Oregon Liquor Control Commission (OLCC) indicated there were about 220 businesses in Eugene with on-premise liquor licenses. The second issue was if outdoor smoking areas were allowed, how open should they be? Ms. Osborn said that council's responses had been mixed, but there seemed to be some support for 50 percent wall coverage. That percentage was included in the proposed ordinance. She acknowledged there was no scientific basis to that percentage. She noted that the ordinance attempted to address side coverings and wall coverings to avoid some of the confusion that arose over the 75/25 percent rule, which was not clear as to what was allowed. The third issue was how to address ventilation. Ms. Osborn said staff had provided some examples of how the issue was addressed in British Columbia and at the State of Oregon, but had provided no recommenda- tion that such systems be provided in outdoor smoking areas. Ms. Osborn discussed the issue of what happened to existing outdoor smoking areas if the council adopted new standards. She said that approximately 40 businesses had to secure a building permit for outdoor smoking areas while others were installed without permit because they required no structural changes. She said the ordinance suggested that after 12 months, all businesses must comply; alternatively, that period could be shorter, longer, or such businesses could be grandfathered in as legal nonconforming structures. Ms. Osborn believed that most of the establishments that had secured permits would require another building permit to reach a 50 percent openness standard. MINUTES-Eugene City Council Work Session September 12, 2005 Page 10 Ms. Osborn noted the council's adoption of a moratorium on new outdoor smoking facilities that expired on October 31. She said in order to avoid having the moratorium expire without standards in place, the council must adopt a new ordinance with new standards by September 30 or enact an ordinance in October with an immediate effective date. She said if the moratorium expired, the City would not be inhibited from enacting tighter standards and requiring businesses with outdoor smoking facilities to make additional modifications. Ms. Osborn noted that some councilors expressed interest in whether some of the changes being contem- plated could be accomplished through administrative rule rather than through ordinance. Background information on that issue was included in the council meeting packet. City Attorney Jerry Lidz was present to answer questions about that issue. Mayor Piercy called for council questions and comments. Ms. Taylor was not interested in grandfathering any establishments' outdoor smoking facilities. She did not understand why a councilor would prefer using administrative rules as opposed to an ordinance as administrative rules were easier to relax. Mr. Lidz clarified that approach was suggested by a councilor rather than staff. From a legal perspective, he recommended an ordinance that set a standard while allowing the City Manager to act administratively to implement the ordinance as there were some elements probably better addressed by administrative rules, such as modifications to the 25 percent rule made necessary by physical circumstances. Other than that, he had no reason to believe it was better to act administratively rather than through an ordinance. Mr. Kelly said another legal opinion that existed suggested it would be more straightforward and defensible to make the changes being contemplated through the City's administrative rules. He proposed that rather than discuss the ordinance's potential legal vulnerabilities in open session, the council discuss them in an executive session. He suggested that the council also be given an opportunity to extend the moratorium to the end of the year. Mr. Kelly was comfortable with the overall direction staff was taking. He did not want indoor areas that happened to fall outdoors under the current definition to be grandfathered forever. He thought a year was a reasonable amount of time. Mr. Kelly thanked staff for responding to questions and for seeking clarification from the council about its previous comments. Mr. Kelly suggested that somehow the implementation of the original ordinance failed to capture the council's original intent that in general, smoking was prohibited in work places but one could smoke in outdoor areas, and he hoped whatever was proposed would return to and clarify that original intent. Mr. Pape recalled that the council's goal in adopting the ordinance had been to protect the public, particularly youth, and employees from second-hand smoke, rather than to stop people from smoking. He reminded the council that people had the right to smoke. Mr. Pape was concerned that the council's focus was on physical structures, and suggested the City remind employers that employees were not required to go into areas where smoking was allowed. He understood that a window in a wall or door that allowed physical viewing of the area in question complied with OLCC regulations. Ms. Osborn said the City had experienced some enforcement issues related to situations where managers had instructed employers to sign waivers about being in a smoking environment when that was not the choice of the employee, but they felt compelled to do so. Mr. Pape thought the City needed to deal with that issue and require the employer to inform the MINUTES-Eugene City Council Work Session September 12, 2005 Page 11 employees of their rights through its administrative rules. Ms. Osborn clarified that City had addressed those situation when they arose. Mr. Pape expressed appreciation for the background information provided to the council, in particular the information from the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE), which indicated that complete separation and isolation of smoking rooms can control environmental tobacco smoke (ETS) exposure in nonsmoking areas of the same building. He said the City should allow such areas if they were contained and ventilated in such a manner. Mr. Pape supported allowing existing smoking rooms to be grandfathered, noting that some establishments had spent considerable money on building permits to build outdoor smoking rooms just a short while ago. Ms. Ortiz commended the background information. She was glad that the original ordinance had been adopted and wished that the council could prohibit smoking everywhere, although she acknowledged that people had the right to smoke. She also did not want to have to force business owners to spend more money and wanted to see if there was a way to honor those owners who complied with the spirit of the law and constructed separate outdoor smoking facilities. Ms. Solomon echoed the comments ofMr. Pape and expressed concern about attempting to make any changes through the administrative rules. She thought any amendments to the original ordinance should be made through another ordinance so that there was a clear public process that allowed business establish- ments to make comments and offer input. Mr. Poling asked how many establishments applied for building permits to build a smoking area. Ms. Osborn said about 40 businesses had made such applications. Given the number of businesses in Eugene with liquor licenses, it was likely there were other establishments that probably had outdoor smoking areas that had not required a building permit or for whom business owners had not sought a permit. Mr. Poling asked if there was a way to give a break to businesses that had filed applications for a building permit previously, should the council decide not to grandfather such establishments. Ms. Osborn pointed out that her department was supposed to be 100 percent reliant on fees, and she deferred to the council on that issue. Mr. Poling suggested that staff needed to be clear at the public hearing that the proposed alternative language for nonconforming situations reflected in Attachment D could be further altered and changed. He said that those establishments that conformed to the original ordinance and spent the money needed to comply with an ordinance that was essentially forced upon them should be grandfathered in. If the smoking area was not used within a period of time or the ownership changed, that could make the business subject to the current code. Mr. Poling looked forward to hearing public testimony on the issue. Mr. Pryor said his first instinct was to make the changes through ordinance, but he had been persuaded that some of the less scientifically based and more creative changes could be better implemented through administrative rule. He did not want to short-circuit the public input process but thought that issue could be addressed. Regarding the issue of grandfathering, Mr. Pryor was concerned that those establishments who had "played by the rules" did not feel shortchanged or stuck with an additional expense. He suggested that a fee consideration or some sort of assistance be considered for those who complied to get them were they needed to be. He wanted to see some options in that regard. MINUTES-Eugene City Council Work Session September 12, 2005 Page 12 Ms. Bettman said she had initially favored making changes through an ordinance, but had some concerns about legal issues that she wanted to discuss with legal counsel more fully. She asked if the council could hold an executive session prior to the public hearing. Ms. Bettman said the council's original intent was reflected in Section 6.230(3) of the code, which required all employers to provide a place of employment for all employees in which employees were not exposed to the smoking of others. She said that secondhand smoke kills. Workers were not exposed to other toxic substances that jeopardized their health and should not be exposed to secondhand smoke either. She believed everything followed from that core value. For that reason, she thought the City should be considering 75 percent open space and 25 percent enclosure. She believed that a 50 percent enclosure with a roof was "very enclosed" and exposed workers to secondhand smoke. Ms. Bettman indicated she would seek amendments to the ordinance to that effect. Speaking to the issue of assisting businesses to transition to new facilities, Ms. Bettman said she supported such assistance as long as the business in question was transitioning to something that fulfilled the objective of the original ordinance. She suggested the council look to the Risk Fund for those dollars. City Manager Taylor indicated that an executive session could occur later that evening if time allowed, following the regular meeting scheduled at 7:30 p.m. Responding to a question from Mr. Kelly, City Manager Taylor indicated he would prepare an ordinance to extend the moratorium for the council's consideration on September 26. Mr. Kelly said he liked the idea of offering businesses assistance to ease requirements, and suggested the council could also look to the General Fund Contingency as another funding source. He pointed out that in some cases, those businesses the council was discussing grandfathering in had consciously looked for loopholes in the regulations. He was not willing to "play Santa Claus endlessly" to such businesses. Mr. Kelly liked the point made by Ms. Ortiz in regard to honoring those businesses that went by the spirit and the letter of the law and wanted to do that in any way the City could. He suggested the City give those businesses recognition. Mr. Pape noted that the council kept discussing percentages for wall openings, and suggested that that the ratio of the floor area to the wall area and the existing ventilation capacity should be taken into account as well. Mr. Pape supported grandfathering in the facilities of those businesses that complied with the original ordinance but liked Mr. Pryor's idea of offering assistance to those businesses if the council did not take that approach. Mr. Pape thought the council already compromised on the moratorium extension and he did not favor any moratorium extension at this time. Ms. Taylor pointed out that someone had to clean up the smoking areas in question even if they were located outdoors, and people could be exposed to secondhand smoke while cleaning up. She liked the idea of honoring those businesses that complied with the law and did not try to subvert it. The meeting adjourned at 7: 15 p.m. MINUTES-Eugene City Council Work Session September 12, 2005 Page 13 Respectfully submitted, Dennis M. Taylor City Manager (Recorded by Kimberly Young) MINUTES-Eugene City Council Work Session September 12, 2005 Page 14