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HomeMy WebLinkAboutCC Minutes - 09/28/05 WS M I N U T E S Eugene City Council Work Session McNutt Room—Eugene City Hall September 28, 2005 Noon COUNCILORS PRESENT: George Poling, Jennifer Solomon, Bonny Bettman, David Kelly, Betty Taylor, Gary Papé, Andrea Ortiz, Chris Pryor. Mayor Kitty Piercy called the meeting of the Eugene City Council to order and welcomed those present. A. ACTION: An Ordinance Concerning Smoking Areas; Amending Sections 6.225, 6.230, 6.235, and 6.240 of the Eugene Code, 1971; Repealing Section 6.232 of that Code; and Adding Section 6.245 to that Code Mr. Poling, seconded by Ms. Solomon, moved to request the City Manager to revise Ad- ministrative Rule 6.230 to clarify standards for outdoor smoking areas and to prepare ordi- nance revisions as appropriate, within a timeframe that allows new standards to be in place before December 31, 2005. Mr. Papé asked about Corvallis’ experience in implementing a similar ordinance. Permit Review Manager Keli Osborn replied that the clean air ordinance for Corvallis was countywide and primarily handled by Benton County Public Health, but also administered within the City of Corvallis. She said that for Corvallis, according to staff there, three to five citations had been issued over the past three years and while citations with fines were issued when violations persisted, the usual experience was that businesses that were approached regarding a violation immediately corrected the problem. She said that outdoor smoking areas were not defined in the Benton County ordinance and staff’s focus was to keep smokers ten feet or more away from building entrances and exits. She said some businesses might have a sheltered area but smoking areas were not considered enclosed. Mr. Papé asked about Eugene’s experience with complaints under its ordinance. Ms. Osborn said that there had been 16 complaints related to the smoking ordinance since the first of the year; 11 related to outdoor smoking areas and 5 related to smoking indoors. She said that since July 2001, the City issued 30 correction orders, levied 12 fines and gone to appeal hearings 9 times. Mr. Papé requested details abut the nature of the complaints related to outdoor smoking areas. Ms. Osborn said the focus of complaints was whether standards had been met and whether the area was too enclosed, given the 25 percent/75 percent rule now in place. She said the tracking system identified a complaint as related to not meeting standards but did not provide specific details; 15 of the 16 complaints received in 2005 were confidential. MINUTES—Eugene City Council September 28, 2005 Page 1 Work Session Mr. Papé questioned whether there was actually a problem with the outdoor smoking areas. He realized there could be problems related to compliance but was not certain that the existing ordinance failed to meet the need to protect workers and patrons in bars, taverns and restaurants. Mr. Pryor emphasized his interest in having the City do whatever it could to mitigate the costs of complying with new standards for those businesses that had, in good faith, created smoking areas that complied with the ordinance and standards created in 2000 and might now be forced to change. He urged the City to take measures to mitigate the time and costs involved for those businesses to come back into compliance. Mr. Poling, speaking to the motion, clarified that the legislative intent of ordinance revisions was to ensure there would be minor changes to bring the ordinance into alignment with the administrative rule and not to make principal changes in the ordinance. He asked how many establishments were in compliance with the existing ordinance. Ms. Osborn said that there were approximately 40 that had obtained permits to construct outdoor smoking areas. She said a strict reading of the State codes indicated that most businesses would require building permits to make the changes necessary to comply with stricter standards. Mr. Poling asked if any of the compliant smoking areas had been built without permits. Ms. Osborn replied that the City was not aware of any smoking areas that required permits but did not have them; however, some establishments did not create the type of area that triggered the requirement for a permit. She noted that the motions being considered by the council attempted to capture different suggestions from councilors to provide more specificity of direction if the administrative rule approach was used. Mr. Poling asked if the wording in the suggested motion B.4 in reference to the granting of legal non- conforming status meant those establishments would be grandfathered in and would not have to change as long as they were currently in compliance. Ms. Osborn agreed that was the intent of the language. Ms. Bettman said she would support the motion and stated her intent to offer motions on specific standards that would split the issues of phasing and grandfathering. She said the council intended to protect workers from the health dangers of secondhand smoke and the administrative rules that were enacted were inconsis- tent with that intent. She said that as long as the council was going to correct that problem it should provide full protection by returning to its position when the original ordinance was enacted, which was 75 percent open air for outdoor smoking areas. In response to a question from Mr. Papé, Mr. Poling explained that if the motion passed, staff was directed to begin with the ordinance revision as proposed and the council would then have the opportunity to address specific changes to be added. City Attorney Jerome Lidz explained that there were at least three steps in the process: 1. A decision to proceed primarily by administrative rule with ordinance changes only to make lan- guage consistent; 2. If the answer was yes, what kind of suggestions should be made to the city manager for the adminis- trative rules; and 3. How the council wants to address non-conforming uses. The motion passed unanimously, 8:0. MINUTES—Eugene City Council September 28, 2005 Page 2 Work Session Mr. Poling, seconded by Ms. Solomon, moved to extend the discussion by 15 minutes. The motion passed unanimously, 8:0. Ms. Bettman, seconded by Mr. Kelly, moved to request the City Manager to revise Admin- istrative Rule 6.230 to implement new standards for outdoor smoking areas before Decem- ber 31, 2005, with provisions for a minimum 75 percent opening in wall planes for such roofed areas without allowance for screens and similar side coverings over areas counted as open. Ms. Bettman indicated that her motion was more in line with the council’s intent when the ordinance was adopted that there be protected outdoor smoking areas; not that the area be a part of the bar. She stated that Oregon Liquor Control Commission (OLCC) statutes required employees to provide service if people are out in such areas with their drinks; this would provide the greatest amount of protection in that environment. Mr. Kelly stated he would support the motion as the original intent was outdoor smoking areas and this standard came closer to a common sense idea of what was “outdoor” than the current situation at some businesses. Mr. Papé indicated he had seen no empirical evidence that the ordinance and administrative rules now in effect were not doing what the council intended four years ago to protect workers’ health. He had not received complaints from either workers or patrons but received complaints from business owners about putting the ordinance into effect. He saw no clear reason to change what was currently in place and encouraged the City to maintain better records on the details and nature of each complaint. Ms. Solomon said she was inclined to support a 50 percent opening standard and referred to earlier testimony to the council that there was no statistical data to support a 75 percent opening over a 50 percent opening. She echoed Mr. Papé’s concern about how complaints were recorded and tracked to ensure their legitimacy. Ms. Ortiz said in the absence of statistical evidence to support either standard she would err on the side of safety. She would support a citywide ordinance to protect all people, not just those in particular occupa- tions. She said the council should take the lead in setting a standard for expectations for the City and would support any steps that would help make Eugene smoke-free. Mr. Poling, seconded by Ms. Solomon, moved to amend the motion to read “…a minimum of 50 percent...” Ms. Bettman declared that the unfortunate aspect of revisiting the issue was that many people had lost the sense of urgency heard from the community when the initial ordinance was adopted. She asserted that many workers had come forward and begged the council for protection. She said councilors were not medical experts and unable to track and analyze specific health impacts of secondhand smoke. She said that medical experts confirmed the need to protect workers from the health hazards of secondhand smoke; 50 percent was still an enclosed area and would put workers in harm’s way by requiring them to provide service. Mr. Pryor noted that the council had been discussing a 50 percent standard for some time and he did not hear opposition to that standard in previous meetings and discussions. He recognized that any figure, whether 25, 50 or 75, was an arbitrary number but he felt that there should have been more conversation MINUTES—Eugene City Council September 28, 2005 Page 3 Work Session about a 75 percent standard before it was substituted for the 50 percent standard, which had been extensively discussed. He was inclined to support 50 percent now, with the understanding that a different standard could be studied and proposed at a later date. He was very concerned about the compliance and non-compliance issue as well. Speaking to Ms. Bettman’s contention that employees were required to provide service in the outdoor smoking areas, Mr. Papé said it was his understanding that the requirement was that employees had to monitor the area and be available in the case of a problem but were not required by the OLCC to enter the area to provide service. He said that a greater health hazard was posed by people smoking in homes and in cars when children were present and if the council was serious about the problem of secondhand smoke, it should consider how to protect youth from this exposure. Ms. Taylor said the council dealt with many issues and could not be expert on all of them. She trusted the experts in the medical field and would support a 75 percent standard. Ms. Bettman clarified that she raised the subject of a 75 percent standard in previous meetings. She noted that the 75 percent standard only related to wall space and did not include the roof. The vote on the amendment to the motion was a 4:4 tie; Mr. Poling, Ms. Solomon, Mr. Pryor and Mr. Papé voting in favor, Ms. Taylor, Mr. Kelly, Ms. Bettman, and Ms. Ortiz voting no; Mayor Piercy cast a vote in opposition to the motion, and it failed on a final vote of 5:4. Mayor Piercy said the City had been told by the County health department that the issue had to be addressed and she listened to those who urged protection for workers in outdoor smoking areas. The main motion passed, 6:2; Mr. Poling and Mr. Papé voting in opposition. Mr. Kelly, seconded by Mr. Poling, moved to extend the discussion by ten minutes. The motion passed unanimously, 8:0. Mr. Kelly, seconded by Ms. Taylor, moved to request the City Manager to revised Adminis- trative Rule 6.230 to provide one year during which existing outdoor smoking areas that were legally created and comply with standards in effect on September 28, 2005, must come into compliance with new standards. Mr. Kelly withdrew his motion. Ms. Taylor withdrew her second. Mr. Kelly, seconded by Ms. Taylor, moved to request the City Manager to revised Adminis- trative Rule 6.230 to provide one year during which existing outdoor smoking areas that were legally created and comply with standards in effect on September 28, 2005, must come into compliance with new standards and further moved to allocate $15,000 from Council Contingency Fund to cover building permit fees for existing, compliant outdoor smoking areas which must obtain building permits for structural changes needed to achieve conformance with new standards. Ms. Taylor agreed with helping those who were compliant and asked if there were businesses that did not comply with the original ordinance. Ms. Osborn responded that the City worked with those whose smoking MINUTES—Eugene City Council September 28, 2005 Page 4 Work Session areas were not compliant to bring them into compliance. She said that if the motion was adopted, it would not apply to any business that was not now in compliance. Mr. Papé said that when businesses complied in good faith, regardless of whether it had been expensive, the council should be consistent and not place additional expense on an industry it had already burdened in 2001. He had not seen anyone come forward to ask for additional protection. Ms. Bettman asserted that the motion would create a level playing field and provide help for modifications. She said that some of the outdoor smoking areas that had been built were basically extensions of the facility. She would support the motion. Ms. Ortiz acknowledged those businesses that had gone smoke-free and did not have the opportunity to provide an outdoor smoking area; she thought they should be applauded for their support of the council’s efforts. Mr. Poling agreed with Mr. Papé’s remarks about businesses that had gone to considerable expense to comply with the existing ordinance. He said the changes that would need to be made under the new standards could increase their expenses once again. He appreciated having smoke-free establishments and felt the council should take into consideration the approximately 40 businesses that had gone to the time and expense to comply with the original ordinance. Mr. Poling, seconded by Ms. Solomon, moved to substitute the following motion: Move to request the City Manager to revise Administrative Rule 6.230 to implement new standards for outdoor smoking areas before December 31, 2005, with provisions for granting of legal non-conforming status to existing outdoor smoking areas that were legally created and comply with standards in effect on September 28, 2005. The vote on the motion was a 4:4 tied; Mr. Poling, Ms. Solomon, Mr. Pryor and Mr. Papé voting in favor, Ms. Taylor, Mr. Kelly, Ms. Bettman, and Ms. Ortiz voting no; Mayor Piercy cast a vote in opposition to the motion, and it failed on a final vote of 5:4. Mayor Piercy explained she voted against the substitute motion because the effort in the original motion to provide a year to comply and provide financial resources was responsive to those businesses that complied with the existing ordinance. Mr. Poling said he would vote in favor of the motion as proposed, although he opposed the principle of forcing change, in order to give those who took the time, effort and money to comply originally a break. The main motion passed unanimously, 8:0. B. WORK SESSION: West University Park Reconfiguration Mr. Poling, seconded by Ms. Solomon, moved to direct the City Manager to execute a property exchange agreement with Bob and Leslie Quinney as described above based on the points of agreements from Attachment B. Ms. Taylor expressed concern about the haste in taking action, which she felt did not benefit the neighbor- hood so much as one developer. She could not support the provision that gave the Quinneys the right to MINUTES—Eugene City Council September 28, 2005 Page 5 Work Session purchase the park in the future if it was sold. She was also concerned about too much lighting in the park and felt a park was a place to have peace and quiet and not be bombarded by lighting. She thought a park should be a place to eat and read a book in a quiet corner or talk to a loved one in the evening in a halfway dark place. She did not understand why the park had been closed in the first place instead of making enough efforts to find a way to keep it open. Mr. Kelly pointed out that the park was in his ward and neighborhood and, in the years prior to its closure a decade ago, there were Herculean efforts to try to keep it open. He said the park had been the number one priority of the West University Neighborhood Association since it was reconstituted two years ago and was a major interest of the neighborhood even before that time as it was a densely populated area without a neighborhood park. On the issue of haste, he said there were times when an opportunity requiring a response presented itself and that was the current situation; while there was a great deal of interest in having the park reopened, no one previously presented an idea that would accomplish that. He had some questions regarding details of the agreement and might offer motions to address those after a round of discussion. Referring to item 2.F in the agreement that stated the owners would have control over both properties during construction, Mr. Poling asked if there was a mechanism in place to ensure that existing trees that would be in the park area once the proposed changes were made, as well as brickwork now in the park, would be preserved and protected. Public Works landscape architect Robin Hostick said that could be addressed in the agreement once it was determined what features should be preserved. Mr. Poling also expressed reservations about item 2.G that gave the Quinneys the right of first refusal to purchase the property if the City decided to sell the reconfigured park in the future. He said the park should be sold to the highest bidder instead of giving someone that advantage. He asked if removing the provision would kill the deal. Mr. Hostick said the property owner would have to answer that question. He thought the right of first refusal provision would allow the property owner to meet any fair, legitimate bid proposed for the park. Mr. Poling requested clarification of item 4 relating to alley assessments. Mr. Hostick explained that the City would be assessed approximately $37,000 for alley construction in the current configuration. He said that if the trade was executed and the Quinneys received ownership of the portion of the property that abutted the alley, the City would have no assessment. However, the park in public ownership was counted as ten and all of the other owners on the block counted as one; if that were redistributed and the park was in private ownership and counted as one, the assessment for all property owners on the block would increase. Mr. Lidz added that the other property owners on the block would pay a higher assessment under the new configuration and the provision in the agreement was intended to prevent that by freezing the assessment as it would have been without the trade. Mr. Papé stated that he supported opening the park again. He disclosed that he was a good friend of Bob and Leslie Quinney and asked if that presented a conflict of interest given that the trade would increase the value of the Quinneys’ property. Mr. Lidz replied that friendship would not create a conflict of interest and noted that the Quinneys’ property value would increase by approximately $26,000 in the new configuration. Ms. Ortiz remarked that she worked in the West University neighborhood and parking along the old park when it was still open was scary. She agreed that the presence of a new park in the neighborhood was desirable and she supported the trade. MINUTES—Eugene City Council September 28, 2005 Page 6 Work Session Ms. Bettman said she supported reopening of the park although she did not think it would have all of the benefits the neighborhood assumed it would because it would still subject to the issues that affected many urban parks. She said the agreement contained benefits for the developer to which she could not agree. She asked if the owners planned to submit a multiple-unit property tax exemption (MUPTE) application. Mr. Hostick replied that they had expressed some interest in MUPTE. Ms. Bettman asked if trees currently on the property would be removed in the new configuration. Mr. Hostick replied that there were no heritage trees and most of the trees on the site were smaller fruit trees. Ms. Bettman asked if there was any guarantee that living spaces and windows of the new structure would be oriented to the park. She objected to the provision granting right of first refusal and to the provision related to alley assessment fees and would move to eliminate them from the agreement. She stated that if the neighborhood and neighborhood organization thought the trade was a good idea, they should be willing to absorb some of the impact and questioned why City taxpayers should pay $37,000 to improve the alley under the agreement if the taxpayers did not currently have to pay that amount. Mr. Kelly pointed out that if there was no agreement or property trade the City would still be paying $37,000 for alley assessment under the current configuration; the City would pay nothing only if the agreement was executed without the proposed alley assessment provision. He stated that the MUPTE issue was not relevant to the trade and if a MUPTE application was submitted at some future time, it would be approved or denied on a case-by-case basis, as the agreement provided no guarantee. He noted that the neighborhood included at least 50 homeowners, and that many renters, such as him, were permanent residents of the neighborhood. He asked for clarification of the right of first refusal provision and whether the Quinneys would be required to match an offer over fair market value and whether there would be efforts made to preserve the park’s existing brickwork. Mr. Lidz said he thought the provision would require that the Quinneys match an offer. Parks and Open Space director Johnny Medlin explained that the right of first refusal proposed by the Quinneys and included in the agreement was based on the appraised price and not matching other offers. Mr. Kelly felt in that case the right of first refusal went too far and he would move to amend the agreement during the next round of discussion. Ms. Bettman stated her intention to amend the motion to remove the right of first refusal because it was an additional benefit given to the property owner regardless of how it was configured. She said the people bidding would know that they were bidding against someone had a first right of refusal instead of an open bidding process and there was nothing stopping the developer from bidding in an open bidding process along with every other person who might want to. She saw no reason from a public policy standpoint to elevate the playing field that one person was on. She said if the property ever came up for sale the City needed to dispose of it on the open market. She did not see why one person should be more equal than everybody else. Ms. Bettman, seconded by Ms. Taylor, moved to amend the agreement by removing the first right of refusal clause. Mr. Kelly said the reason that one person was more equal than others was that if the parties could not come to terms the City would continue to have a closed park. He was not willing to grant everything and noted that during development of the proposed agreement, a number of suggested points were rejected. He said his intent was to move to amend by modifying the right of refusal so it would be consistent with Mr. Lidz’s earlier description. He said the idea was that if there was competition at a fair market value the Quinneys MINUTES—Eugene City Council September 28, 2005 Page 7 Work Session would win over an identical bid. He said the amendment would also request consideration of saving brickwork and trees to the extent possible and clarify orientation of the building, windows and parking. He indicated he would not support Ms. Bettman’s motion. Mr. Papé questioned whether continuing the right of first refusal into the future would present a conflict with the rule of perpetuities. Mr. Lidz said he did not think there was a problem but he would research the issue. Mr. Pryor said the discussion had focused on two items of value: the ability to be at the front of the line in terms of who could buy the property and what the price of the property would be. He said that striking the phrase “based on the appraised value of the property at the time of sale” from the provision would make it consistent with Mr. Lidz’s description of the common understanding of the right of first refusal and retain the first item of value but not the second item. He did not object to granting the owners right of first of refusal to the adjacent park property if they could meet a price that was acceptable to the City. He would vote against Ms. Bettman’s motion to strike the entire provision but would support an amendment that would restore the City’s ability to set a price on the property. Ms. Bettman agreed that the right of first refusal provision was an item of value bestowed on the property owner along with all the other values being bestowed on the property owner. She said that the City would collect the difference in the appraised value because the owners were getting a bigger piece of property but reinvest it in what would essentially be their front lawn. The motion to amend the agreement failed, 6:2; Ms. Taylor and Ms. Bettman voting in fa- vor. Mr. Kelly, seconded by Mr. Poling, moved to amend the agreement by striking clause 2.G and replacing it with “If the City decides to sell the property in the future, have the right of first refusal to purchase the property at the appraised value of the property at the time of sale, or the highest offer received from a third party, whichever is higher” and further to clarify in the agreement the building orientation towards the park and the parking orienta- tion towards the alley and further to consider the preservation of trees in the reconfigured park and to consider the preservation of some of the brickwork in the reconfigured park. Ms. Bettman questioned explicitly spelling out the ability of the property owner to have the first right of refusal would be a disincentive for people to make an offer if it would only raise the price of the property. She said it would result in selling the property for less than the price could be if it was offered on the open market. She did not want to see the precedent set. Mr. Kelly said it was unfortunate that so much time was being spent on a contingency that might never come into play. He said the park had a much better chance of success with the support of the Police Department, the West University Business Association and visibility from Hilyard Street. Mr. Papé offered an amendment to grant the right of first refusal through December 31, 2045. Mr. Kelly and Mr. Poling accepted it as a friendly amendment. Ms. Taylor said she would vote for the amendment in case the agreement was approved but reiterated her objection to any right of first refusal provision and concern with “considering” the trees instead of stronger language. MINUTES—Eugene City Council September 28, 2005 Page 8 Work Session The motion to amend the agreement passed, 7:1; Ms. Bettman voting in opposition. The motion to direct the City Manager to execute a property exchange agreement with Bob and Leslie Quinney based on the amended points of agreements from Attachment B passed, 6:2; Ms. Taylor and Ms. Bettman voting in opposition. C. WORK SESSION: Neighborhood Initiative Priority Issue Action Plan Mayor Piercy announced that this item would be postponed to a future meeting. The meeting adjourned at 1:15 p.m. Respectfully submitted, Dennis M. Taylor City Manager (Recorded by Lynn Taylor) MINUTES—Eugene City Council September 28, 2005 Page 9 Work Session