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HomeMy WebLinkAboutminutes.council.20190520Regular Meeting Aspen City Council May 20, 2019 1 CITIZEN COMMENTS ............................................................................................................................... 2 CITY COUNCIL COMMENTS ................................................................................................................... 2 BOARD REPORTS ...................................................................................................................................... 2 CONSENT CALENDAR ............................................................................................................................. 2 Resolution #62, Series of 2019 – Water Shortage Stage II ................................................................... 3 Resolution #61, Series of 2019 – Terminating the Management Service Agreement between the Red Brick Center for the Arts and City ................................................................................................................ 3 Resolution #63, Series of 2019 – Castle Creek Trail IGA .................................................................... 3 Resolution #64, Series of 2019 – 488 Castle Creek Trail IGA ............................................................. 3 Resolution #65, Series of 2019 – Wheeler Chiller Replacement .......................................................... 3 Minutes – May 13, 2019 ....................................................................................................................... 3 ORDINANCE #52, SERIES OF 2019 – Flavored Tobacco Ban ................................................................ 3 ORDINANCE #12, SERIES OF 2019 – Land Use Code Amendments for APCHA Referrals ................... 7 ORDINANCE #10, SERIES OF 2019 – 119 Neale Avenue – Transferable Development Rights .............. 7 ORDINANCE #13, SEREIS OF 2019 – Transportation and Parking Land Use Code Amendments .......... 8 Regular Meeting Aspen City Council May 20, 2019 2 At 5:00 p.m. Mayor Skadron called the regular meeting to order with Councilmembers Hauenstein, Frisch and Myron present. CITIZEN COMMENTS 1. Toni Kronberg said there are no bike lanes on Rio Grande Place. The street needs to be safe, either one way or add bike lanes. 2. Bob Morris said he won’t be here at the next meeting. Steve, you’ve been great. You thank us for giving up our valuable time for coming here. We want to thank you for all the time you’ve spent on behalf of the city. Bob gave the Mayor a trophy. He said in horse racing there is win, place and show. I wanted to personally congratulate Adam not only on your dedication and concern. I also want to congratulate you on a hard fought campaign. Bob gave Adam a medal. There has been one person on council who has fought and fought and not always in the majority. Bob gave Bert a boxing glove trophy. Ann gets the silver medal. Torre gets a medal also. We couldn’t leave Ward out but couldn’t figure out what he does. Ward got a trophy as well. Arbor day was a great event. Thanks to everyone who was involved. CITY COUNCIL COMMENTS Councilman Myrin said a lot of what I tried was to get the carrying capacity conversation going. I would like council to have comdev put together a pipeline spreadsheet so we have a snapshot of what we left the community with. Jessica Garrow, community development, said we just updated it. Councilman Myrin said what Toni said is important. Rio grand access to city hall. Dedicated bike lanes are very different than sharos. I never understood the financing for AHP. I would like to get a summary of what AHP is contributing and receiving and what the city is contributing. I would like a simple snapshot to see that. Ms. Ott said we can try to put something together, it may not be simple. Councilman Myrin said he is looking forward to the land use side of those. The money part never made sense. Councilman Hauenstein said the snow looks good on the grass. Councilman Frisch said he is glad the mountain is opening for Memorial day. Mayor Skadron said tomorrow is the meet and great for finalists for communications director, 2:30 at the fire station. Thank you parks for Arbor day. The Burlingame park grand opening is June 5th . One of the projects that was years in development and is finally happening. Saturday night was Earth’s Call. I had a chance to talk about some of our environmental successes. I shared our story with a world wide audience. Never underestimate the ability of a small place to influence the world wide conversation. Thank you to the team at Earth’s Call. I’m disappointed the ride for the pass was canceled. BOARD REPORTS Councilman Frisch said he wrapped up his final CORE meeting after 6 years. One of the highlights of being on council. Hats off to Mona and a great team. Councilman Hauenstein said CCLC met last week and I asked them to weigh in on the tobacco ordinance. Much to my surprise they passed 2 resolutions, one asking for a total ban on tobacco sales in Aspen and another for the prohibition of tobacco use in the core. I asked them to reach out to the community. CONSENT CALENDAR Reso #65 – Wheeler chiller Councilman Hauenstein said this is replacing a chiller that is smaller than the one that was there. It requires HPC approval because of a rooftop element that may conflict with view planes. Why, if it is being replaced with something that is smaller. Ms. Garrow said a few years ago during the moratorium Regular Meeting Aspen City Council May 20, 2019 3 there were a number of code changes including view plane regulations. Council was concerned that there was a one size fits all approach with view planes. We created standards for fore, mid and background. Because of where the Wheeler is located within the Jerome view plane it triggers a review. There is a lot of equipment on the roof and they can’t achieve a 20 foot setback from the alley. That is why it triggers a review. Councilman Hauenstein said it seems like the chiller should be grandfatehered in. It was approved previously and used for decades. Ms. Garrow said we deal with this on a weekly basis. Businesses or homes interested in making changes to hvac and it often requires some level of review. Because of the nature of protecting our view planes and the linkage to ref 1. Prior to the changes this would have required a public vote. We are happy to take another look at this if council desires. Ms. Ott said council is always interested in having city projects go through the public process. We are consistent with HPC having review authority. Councilman Hauenstein asked any mechanical equipment on a roof say next door to the Wheeler, if replaced, triggers a whole new review. Ms. Garrow said it depends. The simplest analogy is a fence. A 6ft tall fence on your front lot line is not allowed anymore. You can do maintenance but the minute it is removed you must comply with the current code. That is standard for how we treat all land use in the city. Councilman Hauenstein said I understand the emergency nature of this and the fast track to installation. I’m just a bit perplexed we might lose it through HPC. Mayor Skadron said thank you to the Wheeler team and asset for taking a necessary action to ensure summer programming at the Wheeler will continue unimpeded. Reso #62 – repeal water shortage. Councilman Frisch said on one hand would be great to keep it to see if there is a further reduction of water. Hopefully we are not in a temporary blessing of water. Appreciate staff for bringing this forward. Councilman Hauenstein said we should as a community review what was in place. The water shortage measures seem reasonable for all time not just during a shortage. Ms. Ott replied we have a team looking at that. Mayor Skadron said on the Castle Creek trail IGA, my very first council meeting in 2007 this item was on the agenda. Glad to see its been fast tracked. • Resolution #62, Series of 2019 – Water Shortage Stage II • Resolution #61, Series of 2019 – Terminating the Management Service Agreement between the Red Brick Center for the Arts and City • Resolution #63, Series of 2019 – Castle Creek Trail IGA • Resolution #64, Series of 2019 – 488 Castle Creek Trail IGA • Resolution #65, Series of 2019 – Wheeler Chiller Replacement • Minutes – May 13, 2019 Councilman Frisch moved to adopt the Consent Calendar; seconded by Councilman Hauenstein. All in favor, motion carried. ORDINANCE #52, SERIES OF 2019 – Flavored Tobacco Ban CJ Oliver, environmental health, said if passed the ordinance would ban flavored vaping products or all flavored tobacco products. Colorado vaping rates are about double the national average. Our rates in Aspen are double the Colorado average. 70% of high school students have tried vaping, 45% in the past 30 days. Students also report an increase in the use of other tobacco products. Why the focus on flavors. 81% of teens and 86% of young adults report their first tobacco product was flavored. E cigs are sold in over 7,000 flavors. They are geared toward youth consumers. Flavored products are considered a starter product by the FDA and US surgeon general. They can lead to a life time addiction. Long term vaping Regular Meeting Aspen City Council May 20, 2019 4 risks are largely unknown. They may be safer than cigarettes. It should not be the high water mark for safety. We are talking about a young person with no history of use picking up vaping as a gateway to nicotine exposure. Nicotine has significant impacts on the developing brain including impulse controls, learning and attention and long term addiction. A number of communities up and down the valley have taken actions to limit the risk to youth. Aspen and Basalt have T21, tax and licensing. Carbondale and Snowmass have passed portions of that. Due to new state regulations, counties can now participate in many of the same programs as municipalities. Pitkin and Garfield are looking to have similar regulations in place. There are 2 versions of the ordinance in the packet. One bans flavored vaping products and the second bans all flavored nicotine. The third option is hitting pause and waiting for other jurisdictions to catch up. Aspen is the only community in Colorado considering a flavor ban. Mayor Skadron said Juul has a full page ad in the wall street journal asking legislators to raise the smoking age to 21. I thought the timing of the ad was interesting. Councilman Myrin said Ward raised earlier banning the use of tobacco products in the city. Is that something that we could do, I would support it. I’m not interested in an outright ban. Jim True, city attorney, said in public places we have the authority to mark them as non smoking. You could do that in any park or public facility, inside and out. Councilman Myrin said that I would support because it impacts others. People over 21 should be able to do what they want as long as it doesn’t impact others. I would support what CCLC suggested. Councilman Hauenstein said 16 municipalities have indoor vaping bans. Aspen is not one of them. There are harmful chemicals emitted during vaping and some communities have recognized that and banned vaping indoor. I think this will be an ongoing issue. Mr. True said council could take that step with an amendment to the air quality section of the code. We are not here with the proper mechanism to do that. Mayor Skadron opened the public comment. 1. Naomi, advocate director for the heart association of Colorado. I urge council to lead and set an example for the state on banning all flavored products. They are considered starter products for youth. I’m fortunate that my mother no longer uses tobacco products. She was diagnosed with cancer and I believe years of smoking had an impact on that. Think about the impact on future generations. Aspen has the opportunity to protect the health of youth and all residents. She urged council to ban all flavored tobacco products. 2. Keith Burgline, assistant director of youth zone. This is a complex issue. From our experience we have to look at if from the kids who are using tobacco. We are 100 % on the side of a ban to protect kids. 3. Risa Turetsky, representing public health. Thank you for taking the time to consider this. On behalf of the department, whatever the city decides we are with you. She handed out a fact sheet. Contrary to what we may think, Aspen has a higher rate of use than the state average, particularly in the high school. Looking at other tobacco products our rates are almost double the state average. Cigarettes, over 11% of high school students have said they have smoked in the last 30 days. 80% of kids who use menthol are more likely to become smokers and 25% become addictive. Kids gravitate towards flavors and the main reason why they start using. Over 16% of boys in the high school use other tobacco products. In 2015, over 35% of boys in the 12th grade said they have smoked cigarillos in the past 30 days. In 2009 the FDA put in place a partial ban including flavored cigarettes but excluded menthol. There are other products including powders and picks infused with nicotine. We want a proactive policy rather than a responsive one. Despite what you chose to do, adults will still be able to buy tobacco in Aspen. 4. Dr. Kim Levin, Pitkin County medical officer. When I first proposed this my original intent was children and teens. This is who we want to protect. What I’ve learned is that a comprehensive ban is the most important way to go. I have great sensitivities to the retailers in town. In Canada in 2017 there was a nation wide ban on menthol cigarettes. San Francisco banned in 2018 all flavored tobacco. The FDA proposed a ban on menthol last fall. 2009 tobacco control ban banned all flavored cigarettes except menthol. Why. It is the biggest money maker. It is time to Regular Meeting Aspen City Council May 20, 2019 5 address menthol. She showed Zin, white tobaccoless powder. Brand new and in our valley. It is basically a nicotine delivery system in a cool clean way. As a physician, there are so many nicotine replacement products on the market. They are effective and we don’t need any more. Menthol and flavors are marketed toward children. Mint is the number one flavor among children. They will easily transition into menthol. Legislation can not keep up with the changing market of these devices. The only way to address this and protect children is a compressive ban. Councilman Myrin asked how does Zin differ from patches and alternatives to get off of it. Dr. Levin said they are cool and new and discrete. It is the same in that it is a delivery system. It is better than cigarettes since they don’t contain the carcinogens but it is still a delivery system. Mr. True said the proposed ordinance has an exception for term tobacco product used with the cessation of smoking. Risa said Zin and e cigarettes are not approved as a cessation product. Mr. True said there is a distinction that is important to note. If they are approved by the FDA for cessation of smoking then they would be allowed to be sold under the ordinance, regardless of flavor. Councilman Myrin mentioned not wanting to impact people not over 21. Dr. Levin said it clearly will, but the focus is the greater good for the children. Councilman Myrin asked is alcohol next then marijuana. Dr. Levin replied it is a slippery slope. It is the greatest good for the youth. It will impact people’s choices, but it doesn’t ban it. Councilman Hauenstein said the Juul website says your journey starts here. 5. Mike, John and Brady Haisfield – for me it is not about dollars and bottom line. It is about sense. Over 21 should be able to make that decision. If it was about bottom line we never would have taken those products off our shelf. You can still buy them at the AABC. Mayor Skadron said talk about the reality of sales geography related to this product. Our case is different since it is just city market and your store. You can easily jump to the ABC and buy it. Mike said I want to focus more on education. It is not being done at the school. It would be more effective if Basalt and the county were included in a ban. This needs to be focused on what the youth are doing. Anything I think will be in the hands of kids will not be on our shelves. Education would be more effective rather than taking the choice away from someone over 21. John – junior at high school. From a student’s perspective the main problem at the school is e cig and vape products. You never see kids chewing or using zin. I think some of the statistics from 2015 showing kids have a higher chance of smoking cigarettes, right now Juul is the trend. If you eliminate the trend you eliminate the problem. Brady – in the school you can go in the bathroom and never see kids using tobacco. There are kids who will try selling you a Juul but not zin or dip. 6. Bob Morris said I manage the Aspen Mountain lodge and just replaced the carpet in a room where someone stepped on a cigarette. When someone signs in they sign that they will not smoke in the room without paying $250. We’ve charged that many times. 7. Toni Kronberg said it is the education that is really needed to deter anyone. Kids are driving to Glenwood and Carbondale to buy their products. Basalt has already overcollected on sales tax for the year and had to stop. Kids and adults are not taught how to cope and that is one of the reasons they turn into an addictive personality. Why are Aspen kids twice the rate of the rest of Colorado in picking up tobacco. I’m concerned of what will kids do if they don’t smoke cigarettes. I’m not advocating for them but what can we do to help them with their coping skills so they don’t turn to tobacco. 8. Kim Levine said I appreciate the comments. The idea here is to be a leader and have others follow. On education, I agree with what has been said. It is the key to changing culture. It is a much larger conversation. You have to attack addiction from all angles and use all the tools you have. We should use tobacco tax funds for education. Mayor Skadron closed public comment. Councilman Frisch said the focus on original legislation and vaping products. For 2 years we have been focused on a conversation of youth. I have a hard time answering the question of why not alcohol. I don’t know what to do about it and have a hard time squaring it up. I think we should focus on the vaping aspects of this then figure out what we want to do on a community level. I’m sure getting rid of alcohol would make the youth community healthier. I think we need to have tobacco be part of a broader community conversation. As much as I despise and hate tobacco, when I think about what is the best Regular Meeting Aspen City Council May 20, 2019 6 thing to do for health I think there are a lot more touchier issues. I think for the integrity of future health conversations, we are left with high bar stuff, the best thing to do for the community is to get the vaping thing done and have the next council look at a broader public health level. While other cities and states have tackled this I’m pretty sure it came with public dialogue. I think more needs to be done and let the general public know we are going beyond youth, regionalism would be great. Councilman Hauenstein said it is not a black and white issue. It could be government over reach. If I were to tell you scooters caused 480,000 deaths a year and cost 370 billion dollars would it be easy to ban scooters. 480,000 people die each year from tobacco related issues. We sit up here and are expected to make rational decisions. Sometimes the brain and heart are in battle with each other. My heart is forcing me to make this decision. The health of our community, not just youth. We’ve heard valid and meaningful arguments that someone over 21 should be allowed to do what they want to do. I’ve given this so much thought this last week. I have so much for Mike taking vaping off the shelves. It is not unprecedented that government has reach. Maybe the rational argument outweighs the hear felt measure. City market said kids would be vaping without the nicotine. They do it because of the taste. I feel as a representative of the people of Aspen I have to do what is for the greater good, not only for youth but for adults. Maybe in 20 years we will say I can’t believe people smoke. Opioids are legal and heroin is not. Maybe because they don’t have a lobby putting millions of dollars into it. In the end, I guess I’m going to have to ask Adam to change his mind and support a full ban. Mr. True said for the record it is a full tobacco flavor ban. Not a ban on all tobacco sales. Councilman Myrin asked at what age can someone chose to ride a motorcycle without a helmet. It impacts all of us. We heard about use in the school bathrooms and sales on the school campus. I think that is where this conversation should be held, at the school campus. We elect a school board and they need to address that. There were several reasons to focus on the full ban. One the geographic limits. Another reason was to be a leader and set an example. I think that is not a reason to do something. Another reason raised tonight was the impact on businesses. That is also not a reason to me. I struggle with the 21 and setting an age. I would like people to be free to do what they want as long as it doesn’t harm others. This time I’m leaning to where Adam is with the vape ban. I would have the new council look at a ban on use in public places. I’m torn on this. Mayor Skadron said this is about protecting a private commercial interest as Bert and Adam said. Councilman Myrin said nope, that is not it for me. It is the 21 and how does it impact the youth because it is available. Mayor Skadron said my concern is the impact on commercial interest and the public non commercial interest. I like standing up and saying no to the tobacco industry. I like helping the next generation avoid addiction. I like doing that by limiting the availability and use of tobacco products. This touches on the life long Aspenite chapter of our community plan. I think it is incumbent upon me to support aggressive steps to reduce the availability of these products to our children. I will support Ward’s position and vote for the full ban. Councilman Frisch said I don’t think it is a values clash. I think there is an interesting dialogue to be had as to where should we spend our time and money regarding community health. We can wait for Ann to come back June 10th and tackle this there. The other case to be made is support the lower level because something is better than nothing. It was the original plan for the last 2 years. Councilman Myrin said I’m supporting a ban on the vape. Mayor Skadron said in the spirit of moving something forward would you support the flavor ban Ward. Councilman Hauenstein said I would support waiting for Ann. Mr. True said you pass ordinance 14 on page 65 then move to reconsider it on the 10th with the other language. You could do that, but you could continue this until the 10th. Councilman Myrin said it would let the community know this is coming. I would support that and the reconsideration. Mr. True said there is a way to do what you are suggesting. Regular Meeting Aspen City Council May 20, 2019 7 Councilman Frisch said if that were done tonight and there are 3 votes to support page 72 would it delay the effective date. Mr. True replied correct. This is written to go in to effect January 1, 2020. It is not just a 30 day effective date. Councilman Hauenstein said I would like to see the full ban. If we don’t have the votes for it tonight it is reasonable to pass the ban discluding menthol and revisit it. if I vote against it I can’t vote to reconsider. I would prefer to vote against it. Councilman Myrin said it would help with transparity to the community. Mayor Skadron said the motion to support ord 14 from page 65. Mr. True said it is the amendment that was read at first reading. Mr. Oliver said this version would ban the sale of flavored vaping liquid only. Mr. True said the ordinance on page 65 would not affect zin. It talks about flavored electronic cigarette juices. Councilman Frisch said I appreciate the sincerity and how this will not delay the full ban. Councilman Myrin moved to adopt Ordinance #14, Series of 2019 from page 65; seconded by Councilman Frisch. Roll call vote. Councilmembers Myrin, yes; Frisch, yes; Hauenstein, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #12, SERIES OF 2019 – Land Use Code Amendments for APCHA Referrals Mike Kraemer, community development, said at the last meeting council passed a motion to amend the APCHA IGA. Included was the make up of the board including elected officials on the board. Com dev identified land use code referral requirements for APCHA recommendation. Code changes will eliminate referral requirements with guideline compliance. 15 sections will get changed with this ordinance. Councilman Frisch said I’m support of this. We talked originally about a conflict of interest of elected making comments wearing an APCHA hat. What happens if the staff person proactively asks for advice from the board. Are they able to give it. Mr. True said as I mentioned last time, there is case law from the court of appeals, that indicated when you are on that kind of advisory board it doesn’t mandate a recusal when they have already heard a project in front of an advisory body. There may be cases when the elected official choses to recuse from the advisory body knowing it will come up before council or county. The best way is to keep it among a staff level. Councilman Frisch said I remain supportive. Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Frisch moved to adopt Ordinance #12, Series of 2019; seconded by Councilman Hauenstein. Roll call vote. Councilmembers Hauenstein, yes; Frisch, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #10, SERIES OF 2019 – 119 Neale Avenue – Transferable Development Rights Amy Simon, community development, said this will sever two TDRs from 119 Neale Ave. Council agreed to this as part of a lawsuit and settlement. We have two changes. One to clarify a shed built without permits will be fully removed before the certificates are issues. The second is a 788 square foot portion of the property is not included or encumbered by the deed restriction. Staff recommends approval. Councilman Frisch said there have been a few people asking specifics about the process. There is a discussion out there about who owns what parcel and square feet. What staff is recommending is we have Regular Meeting Aspen City Council May 20, 2019 8 no jurisdiction over that. What we are focused on is rectifying a situation regardless of disputed land. Our obligation is 2 TDRs. Ms. Simon said today we double checked the floor area calculations. Whatever happens with the 788 there is still enough floor area to sever the 2 TDRs. Councilman Myrin asked does that mean it is not built to maximum. Ms. Simon replied correct. There is still 879 square feet of floor area on the site. The TDRs remove 500. Mayor Skadron opened the public comment. 1. George Benninghoff said Amy addressed my concerns. I want the application to be clean. It is not. If the application is cleaned up I will have no objections. You won’t see me again if he is applying on his own property. I believe the additional language is not required. Mayor Skadron said we can’t litigate who owns the parcel. I’m hopeful the clarifications Amy made will not be included in the TDR restrictions or calculation. Mr. Benninghoff said I want the application to be clean and him to submit an accurate statement of his property. Mr. True said we are way beyond the application period. We’ve resolved this through litigation. We are not attempting to or suggesting the ability to amend the application as they have been filed prior to this time. We made modifications and I think council should move forward to this. I don’t think we can comply with Mr. Benninghoff’s request. I think the ordinance is written to address his concerns. The ordinance as written will not encumber this disputed area. That is what I have viewed Mr. Benninghoff’s request to be. Mr. Shoaf submitted documents that had a plat that was recorded that does included the disputed parcel. We cannot litigate or adjudicate the ownership of that. To address Mr. Benninghoff’s concerns was language in the ordinance that does not further encumber the property he alleges to own. Mr. Shoaf believes he has submitted the application for his property. Mayor Skadron closed the public comment. Councilman Myrin said what has changed is that the 785 square feet is not needed to calculate the TDRs. That is a key piece. The 785 is not encumbered. The 785 is no man’s land as far as council is concerned. Mr. True said that is what I tried to write. Councilman Myrin said I feel comfortable supporting it. Councilman Hauenstein said there is adequate space on the lot. Councilman Frisch moved to adopt Ordinance #10, Series of 2019; seconded by Councilman Hauenstein. Roll Call Vote. Councilmembers Frisch, yes; Hauenstein, yes; Myrin, yes; Mayor Skadron, yes. Motion carried. ORDINANCE #13, SEREIS OF 2019 – Transportation and Parking Land Use Code Amendments Phillip Supino, community development, said this ordinance contains minor amendments to transportation and parking management sections of the land use code. Improve some formatti ng and eliminate confusing terminology. None of the amendments change any development rights. Focused on definitions and accessibility standards. Better coordinated for off street and off site parking in regards to how it can be shared. Reference to removal or reconfiguration of parking has been removed since first reading. Councilman Myrin said page 130 limiting the need for redundant parking. If we are reducing the area of development consumed by parking does that change the requirement. Ms. Garrow said this defines what it means to have an accessory space. Councilman Myrin said 25% to be compact requirement. Ms. Garrow said it doesn’t change the number of spaces just the size. This will align the land use code with the engineering code. Mr. Supino said it is also a benefit to residents where there can be more open and green space on a parcel. Regular Meeting Aspen City Council May 20, 2019 9 Mayor Skadron opened the public comment. There was none. Mayor Skadron closed the public comment. Councilman Hauenstein moved to adopt Ordinance #13, Series of 2019; seconded by Councilman Frisch. Roll call vote. Councilmembers Myrin, yes; Hauenstein, yes; Frisch, yes; Mayor Skadron, yes. Motion carried. Ms. Ott said we included the long range council schedule. Currently nothing is scheduled for work sessions until June 11th. Councilman Myrin said there are a few things we left on the table including affordable housing mitigation increase. We could work on an ordinance that reduces the ability of vested agreements to negotiate away their housing. Councilman Hauenstein said it makes sense we wait until the next council. Councilman Hauenstein moved to adjourn at 7:50 pm; seconded by Councilman Frisch. All in favor, motion carried. Linda Manning City Clerk