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Planning Commission Study Session Agenda and Minutes
Monday, February 11, 2019
The study session of the Medford Planning Commission was called to order at 12:00 p.m. in the Lausmann Annex Room 151-157 on the above date with the following members and staff in attendance:
David McFadden, Vice Chair
E. J. McManus
Patrick Miranda, Chair, Excused Absence
David Culbertson, Excused Absence
Kelly Evans, Assistant Planning Director
Carla Paladino, Principal Planner
Eric Mitton, Deputy City Attorney
20.1 2018 Citizen Involvement Program Year-end Report
Carla Paladino, Principal Planner reported that a report is completed annually that outlines the citizen involvement program and the accomplishments made over the year. It relates to Statewide Planning Goal 1 and how the process is opened to the public. The City’s Comprehensive Plan includes the Citizen Involvement Element
Copies of the reports go back to 1995. The report being discussed today covers 2018.
The different Commissions that the Planning staff helps with are:
• Planning Commission
• Site Plan and Architectural Commission
• Landmarks & Historic Preservation Commission
• Housing Advisory Commission (new)
• Community Development Grants Commission (new)
• Transportation Commission (new)
The different Committees that the Planning staff helps with are:
• Bicycle & Pedestrian Advisory Committee
• Joint Transportation Subcommittee
• Citizen Advisory Committee
• Technical Advisory Committee
• Neighborhood Advisory Committee (Liberty Park)
Comprehensive Plan Amendments:
• Urban Growth Boundary (State acknowledged)
• Urbanization Planning process
• Transportation System Plan
• Urban Reserve Local Wetland Inventory
• Natural Hazards Mitigation Plan
Development Code Amendments:
• Housing Construction Excise Tax (CET)
• Public Parks Zone
• Chickens (Round 2)
• Marijuana Residential Grow Structures
• Article II Reorganization
• Wireless/Small Cell Facilities
• Multifamily Design Standards
• Accessory Dwelling Units
• Temporary Shelters
• Housing & Housekeeping
• Approved 248,424 square feet Industrial
• Approved 55,130 square feet Commercial and Office
• Approved 60 Bed Memory Care Facility (27,397 square feet)
• Approved 61 new Dwelling Units
Conditional Use Permits:
• America’s Best Kids – The Courthouse on N. Phoenix Road
• Westminster Presbyterian Church – Wood lot
• Valley School of Southern Oregon – on Valley View
• Springbrook Road Improvements
Site Plan Projects:
• Kentucky Fried Chicken Restaurant – Center Drive
• Cardiovascular Institute Addition – Medical Center Drive
• Stylus Development – Barnett Road (36 units)
• St. Marks Church Addition – Oakdale Avenue
• Lady Geneva Bed & Breakfast – Geneva Street
• Lithia Motors Remodel – Fifth & Bartlett Street
Other Project Accomplishments:
o Recertified as a Class 6 in CRS program
o Booth at Preparedness Fair
o Held 5 TSP Open Houses
o Hosted Bike Breakfast
o Installed 8 Bike Racks
o Parking Day event
o Worked with Opticos Design and ECONW on housing regulations and incentive programs
o Implemented a SDC Deferral Program
o Conducted public meeting on Rent Burden (HB 4006)
• Technology – Electronic Land Use Submittals
• Code Amendments
o Food Trucks in right-of-way
o Administrative Historic Reviews
o Housing Topics
o Wetland regulations
• Comprehensive Plan Amendments
o Sewer Master Plan
o Liberty Park Plan
o Downtown Plan update
• Homeless System Improvement Plan
• CET process
• Annexations & Urbanization Plans
• Citizen Projects
Commissioner Pulver asked, is it true that landowners are not able to do annexations and urbanization plans yet due to the Transportation System Plan appeal or other hurdles? Ms. Paladino reported there are no other hurdles. If people want to submit they can and the Planning Commission can review them.
Eric Mitton, Deputy City Attorney reported that when something like the Transportation System Plan is appealed, unless the party appealing asks to stay it, it is effective on appeal. There has been no request in this situation.
Commissioner McKechnie stated they would have to pay for that request. Mr. Mitton reported often bonds are required to stay anything on appeal.
Ms. Paladino asked, is there anything in the report staff missed or the Planning Commission wants to add? At the next study session discussion will be on long range division’s projects and programs for the year.
Commissioner McKechnie is surprised there were only 61 residential building permits pulled. Ms. Paladino reported it was just units in the statistics. In terms of total residential units there were 448 permits issued; 302 were single family units. Kelly Evans, Assistant Planning Director reported that is just what went through land use.
Commissioner McManus stated that he did not think the 2050 Plan was adopted but it is part of the Comprehensive Plan. Ms. Paladino confirmed the 2050 Plan was not adopted. Staff would like to review and give it a fresh update and incorporate the Plan into the Comprehensive Plan.
20.2 Ex Parte and Conflict Training
Mr. Mitton reported that Oregon Revised Statutes Chapter 244 governs public officials in public meetings. Commissioners, committee members and employees of the City are public official.
Commissioner McKechnie asked, if hired in his professional role to do a project for the City, is he considered a public official? Mr. Mitton replied no. Any contractor for the City is not a public official.
Mr. Mitton continued that conflicts of interest talks about relatives. Who is a “relative”?
• Your spouse, parent, stepparent, child, sibling, stepsibling, son-in-law or daughter-in-law.
• Your spouse’s parent, stepparent, child, sibling, stepsibling, son-in-law or daughter-in-law
• Anyone where you have a legal support obligation
• Any individual where you provide benefits from your employment
• Any individual who provides you benefits from their employment
• Nobody else (not first cousins, aunts/uncles, nieces/nephews, grandparents, or grandchildren)
Conflicts of interest is whether there is an economic benefit or determent to the public official, relative or any business that the public official is associated with.
It is excluded if a public official is a volunteer board member for a nonprofit.
Commissioner McManus asked, what about 501C6 nonprofit? Mr. Mitton stated the rule does not actually say C6, it just says a registered nonprofit.
There are two types of conflicts of interest
• Actual is “would be”
• Potential is “could be”
If there is an actual conflict of interest, one must recuse themselves from both voting and from debating as a public official. You can give testimony as a member of the public, so long as you are representing your own interests and not those of a client. Recusing yourself from a vote will not eliminate a quorum for that meeting.
If you discover a potential conflict of interest, you must disclose at the meeting the existence and nature of the conflict. Recusing yourself is not legally required, but is best practice, since the line between actual conflict of interest and potential conflict of interest can be blurry. If you do not recuse yourself, you should allow the applicant or members of the audience to question you on the conflict. Not mentioned in statute but important for a clear record.
Neither you nor a member of your household should “solicit or receive, directly or indirectly,” a gift of more than $50 from anyone “that could reasonably be known to have a legislative or administrative interest.” That means an economic interest, which is different from that of the general public, in any matter subject to the public official’s decision or vote. Warning: this rule does not require an improper motive by either party. Preexisting friendship or preexisting history of gift exchange are not defenses!
Honoraria are gifts in exchange for providing a speech or similar service (for example, being the keynote speaker at a conference). Food, beverages, travel, and expenses are permitted. In addition, plaques, commemorative tokens, and gifts of value up to $50 are permitted. Beyond that, you should decline the gift or consult with the City Attorney’s Office.
Nepotism general rule is that you may not “not appoint, employ or promote a relative or member of the household to a position with the public body that the public official serves or over which the public official exercises jurisdiction or control.” This includes participating in interviews, discussion, or debate about the appointment. Exception is where that position (not just your position) is a volunteer position.
Representing private interests is that the public official cannot represent a client for a fee before their own Board or Commission. They can represent their own interest before the Board or Commission. They can represent their employer or business partner before the Board or Commission.
Oregon Revised Statute Chapter 192 touches on the rules that govern public meetings. The purpose is transparency in public proceedings.
All meetings of the governing body of a public body shall be open to the public and all persons shall be permitted to attend. The City of Medford is a public body. Its Boards and Commissions are governing bodies. A meeting is anything where a quorum is needed to either make a decision or deliberate toward a decision.
Commissioner Mansfield stated that contrary to popular belief you can take straw votes during a study session. It is not binding but it is often times helpful to know where the councilor is going. Mr. Mitton reported that you cannot make a decision or deliberate toward a decision but giving staff direction where the general consensus is fine.
Without a quorum, no votes can be taken. Without a quorum, discussion on an issue is not prohibited. However, by wary of “serial” discussions under the Oregon Court of Appeals 2015 Handy decision. If three people make a quorum and A talks to B about an issue, and then B talks to C about that issue, there has been a quorum even though A, B, and C never all met simultaneously. Best practice is to not discuss upcoming business with other Board/Commission members prior to the meeting.
If it is a public meeting, prior notice must be given to the public. This is typically handled by Staff. However, staff cannot provide the legally required notice for a public meeting that spontaneously or inadvertently occurs. The purpose of the notice is to allow interested parties to attend (but not necessarily to participate).
All official actions must be decided by public vote. Can be voice vote for certain matters and roll call for more complex matters. No proxy voting for members who are not present. No remote voting (Skype, telephone, etc.) without prior agreement with Staff; this is highly discouraged in all but emergencies.
A gathering of Board or Commission members is not subject to public meetings law unless a quorum is present, and there is discussion relevant to the Board or Commission’s work. If a meal is provided prior to your meeting, do not discuss what is on the evening’s agenda during that meal. At events like the Boards and Commissions’ luncheon, keep discussion on what the group has done in the past, not what the group will tackle in the future.
The public process only works if the decision is made on evidence in the record, and every decision maker is operating from the same set of facts. Interested parties may reach out to you directly, outside of a public meeting, just trying to explain their concerns directly. Such communication undermines the public process even when there is no nefarious intent. If this happens, politely disengage, forward written ex parte communications to Staff, summarize oral ex parte communications to Staff, and disclose the ex parte at the public meeting.
Commissioner Pulver asked, does it matter if it is legislative or Quaisi-Judicial? Mr. Mitton stated that under the statute it does not make a difference.
ORS 227.180(3): No decision or action of a planning commission or City governing body shall be invalid due to ex parte contact or bias resulting from ex parte contact with a member of the decision making body. If the member of the decision making body receiving the contact: (a) Places on the record the substance of any written or oral ex parte communications concerning the decision or action; and (b) Has a public announcement of the content of the communication and of the parties’ right to rebut the substance of the communication made at the first hearing following the communication where action will be considered or taken on the subject to which the communication related.
The City has two legal responsibilities with public records. First, public records must be kept for a certain amount of time. Second, public records must be made available to members of the public upon request, unless an exception applies.
The City has provided you an email address. Use that for Board/Commission business instead of a personal email. Emails to and from City email accounts (whether the account is for a Staff member or a Board/Commission member) are preserved by the City. Personal email accounts used for City business pose public records problems unless a City Staff member is cc’ed on each email.
Text messages can be public records just like emails. Text messages are very difficult for the City to preserve and to locate. Text messages are often deleted when an individual buys a new phone. Best practice is to not use text message for public purposes.
Knowing destroying public records is a criminal offense pursuant to ORS 162.305 (tampering with public records). The crime requires that the act be “knowing” but does not require malicious or dishonest intent.
Commissioner Mansfield commented that one of the things the Oregon legislature seemingly has not dealt with the fact that many people that are requesting public records are actually asking the public body to do a research job. The public body has no duty to supply documents that are not in existence at the time the written request is made. Mr. Mitton agreed and stated that the City’s Attorney Office deals with all the time.
Commissioner McKechnie stated that public officials are required to report to the State Ethics Office. Mr. Mitton agreed.
The meeting was adjourned at 12:51 p.m.
Terri L. Richards