BEAVERTON CITY COUNCIL
REGULAR MEETING MINUTES
JULY 8, 2002
CALL TO ORDER:
The Regular Meeting of the Beaverton City Council was called to order by Mayor Rob
Drake in the Forrest C. Soth Council Chambers, 4755 SW Griffith Drive, Beaverton,
Oregon, on Monday, July 8, 2002, at 6:43 p.m.
ROLL CALL:
Present were Mayor Drake, Couns. Fred Ruby, Evelyn Brzezinski, Dennis Doyle,
Forrest Soth and Cathy Stanton. Also present were Chief of Staff Linda Adlard, City
Attorney Mark Pilliod, Human Resources Director Sandra Miller, Finance Director
Patrick O'Claire, Engineering Director Tom Ramisch, Operations/Maintenance
Director Gary Brentano, Police Chief David Bishop, Library Director Ed House,
Development Services Manager Steven Sparks, Senior Planner Alan Whitworth,
Principal Planner Hal Bergsma, Senior Planner Kevin Snyder, Transportation
Engineer Randy Wooley, Deputy City Recorder Catherine Jansen.
CITIZEN COMMUNICATION:
Mayor Drake said that Mr. Boersti was present to speak on the Murray Ridge tree
removal issue. He said staff was handling this matter internally, but the City Attorney
had suggested that the Council listen to Mr. Boersti’s testimony.
Chris Boersti, Vice President of Construction, D.R. Horton, Portland, stated that D.R.
Horton did not arbitrarily remove the trees at the Murray Ridge Subdivision. He said
that prior to the removal; they discussed the options with the City’s planning and legal
staff. He said that the City advised two options: 1) go through a Type 1 Application;
2) wait until the homes closed and let the homeowners remove the trees at their
discretion. He said they decided to wait until all the homes closed before doing any
work. He said Horton hired two arborists to check the health of the trees and both
arborists identified a number of trees that should be removed and that documentation
supporting those findings went to the City before any work started. He noted that the
City reviewed the information and based on discussions with the City, Horton sent
notices to all the affected homeowners that they could keep the trees or have them
removed at Horton’s expense. He said most opted to have the trees removed for
safety concerns. He stressed that Horton did not profit from the tree removal. He
said that the week prior to removing the trees, they confirmed with the City planner
that they could proceed with the removal without further notice. He said after a stop
order was placed on them, they learned the trees could only be removed with a Type
1 review.
Boersti said that mitigation was not brought up. He said that if they had known that
the trees could only be removed through a Type 1 review, that they would have done
it months ago. He reiterated that Horton was working with the City prior to the removal
of any trees and within the options presented by City staff; they were not arbitrarily
removing trees at their own discretion.
Betty Bolz, Beaverton, referred to the bus stop on Hall Boulevard at Greenway, where
the Albertson’s store was located. She noted this was a busy location and it was
unsafe to cross the street to one of the other stops during the construction of that bus
stop. She urged the Council to improve the safety for the pedestrians in that area.
Engineering Director Tom Ramisch explained that this was the Hall Boulevard Bike
Lane Project. He explained that the bus stop on the north side of Hall, across from
Greenway at the Albertson’s location, was closed for construction because of the
demolition of the current sidewalk and part of the roadway. He described how the
project would widen the road, add a bike lane, a new sidewalk, curb and gutters. He
said that this required a large excavation and the bus stop was eliminated temporarily
because it was safer to keep pedestrians out of that area totally. He said it would be
an inconvenience for about six weeks. He recommended that people use alternate
sidewalks.
Mayor Drake noted that this was a tough situation, but allowing people to access the
construction site would be more dangerous.
Bolz suggested Tri-Met have one of its mini-buses from Washington Square Transit
Center stop at Albertson’s and said she would talk to them about it.
Mayor Drake noted that Henry Kane had requested to insert a surrebuttal comment to
a memorandum from Development Services Manager Steve Sparks.
City Attorney Mark Pilliod noted that the hearing was left open to June 24th for
additional written comments and Kane exercised that privilege. He noted that the
Council did not have an obligation to include any comments Kane might make during
Citizens Communications as part of the record.
Mayor Drake noted the Sparks’ memorandum was a reiteration of material provided
earlier and part of the general discussion.
Coun. Brzezinski asked if Council could allow Kane to speak but not include it in
record.
Pilliod replied it could. He noted that Citizens Communications was typically for
subjects not on the agenda. He advised against including Kane’s comments into the
record. He stressed this was a legislative matter; whether initiated by staff or Council
in its legislative capacity, the communications between Council and staff did not give
rise to the opportunity for rebuttal or surrebuttal.
Pilliod noted that the public hearing was closed which was the end of the opportunity
for the appellant to submit testimony.
Pilliod explained that the Code did not discuss conducting a legislative hearing on
appeal from the Planning Commission. He noted there was no applicant because
this was a legislative proceeding initiated by the City. He noted that though the City
was holding an appeal hearing, it was not a quasi-judicial function; and that after a
public hearing on a legislative issue was closed, the information submitted by staff
was not subject to rebuttal or surrebuttal.
Mayor Drake noted that to be fair, Council extended the period for additional testimony
for all sides. He noted that if Kane was given an additional opportunity, it would have
to be provided to all. He said he could not allow it for one and not the others.
COUNCIL ITEMS:
Coun. Soth noted Council received an announcement of an Open House on the
proposed Bull Run Regional Drinking Water Agency. He explained that he and Mayor
Drake have been representing the City of Beaverton in these discussions; David
Winship was on the technical advisory committee. He noted there were fourteen
different water agencies represented. He said that these agencies were exploring
setting up a drinking water regional agency that would have jurisdiction for regional
water issues, including Bull Run and its transmission lines. He stated that Beaverton
had not committed to anything other than to participate in the study. He noted that
there were many participants and that it would not involve distribution but it would
involve large capital improvement items. He noted that the cost estimates ranged
from $150 million to $563 million, depending on how capital assets would be defined.
He noted that additional information would be given at the Open House. He said the
Open House dates were July 17th, 6:30 p.m. at the Gresham Conference Center;
July 24th, 6:30 p.m. at the Tigard Water District Building; July 31st, 6:30 p.m., at the
Portland Building, Meeting Room C, in Portland.
Coun. Stanton said that those who were interested could find information on this
Coun. Stanton noted that next Wednesday would be the Picnic in the Park at Hiteon
Park at 6:00 p.m. for Greenway, South Beaverton, and Neighbors Southwest NACs.
STAFF ITEMS:
Development Services Manager Steve Sparks introduced the new Senior Planner
Kevin Snyder from the City of Battleground, Washington.
CONSENT AGENDA:
Coun. Ruby MOVED, SECONDED by Coun. Soth, that the Consent Agenda be
approved as follows:
Minutes of the Regular Meeting of April 29, 2002
02219
VAR 2002-0003 Clean Water Services Headquarters Parking Lot Design Variance
02220
Traffic Control Board Issues 484 through 488
Coun. Stanton said she was pleased to support Agenda Bill 02219 to allow a design
variance for the Clean Water Services Headquarters parking lot on 170th and Merlo.
She noted the variance would allow alternatives to landscaping, plant material on the
flat roof, and the use of pervious and semi-pervious paving materials, as a
demonstration project on other ways of mitigating impervious surfaces.
Coun. Stanton said she would abstain from voting on the April 29, 2002, minutes as
she was out of town and did not attend the meeting.
Question called on the motion. Couns. Brzezinski, Doyle, Soth, Ruby and Stanton
voting AYE, the MOTION CARRIED unanimously. (5:0) with Coun. Stanton abstaining
on approval of minutes for April 29, 2002.
RECESS:
Mayor Drake called for a brief recess at 7:15 p.m.
RECONVENE:
Mayor Drake reconvened the meeting at 7:24 p.m.
PUBLIC HEARING:
02203
Appeal of Chapter 50 (Procedures) Development Code Update (APP 2002-0004)
(Continued from 6/17/02)
This hearing was continued from the City Council Meeting of June 17, 2002.
Mayor Drake noted this was a continuation from June 17, 2002, public hearing, and
that the hearing was closed at that meeting. He confirmed that Council received the
staff memorandums.
Coun. Brzezinski noted that in the information from staff, half of the jurisdictions hold
de novo hearings. She asked what their record was for meeting the 120-day
deadline. She noted that the 120-day deadline was a major reason for on-the-
record. She wondered if others were not having problems meeting the deadline,
what was their process so that they did not have problems.
City Attorney Mark Pilliod explained that until Washington County changed its process
substantially to add hearings officers and remove the Board of Commissioners from
the appeal process, it had a continuous history of violations of the 120-day deadline
and scores of mandamus cases that they were defending.
Coun. Brzezinski noted that Hillsboro had a hearing to decide if the appeal hearing
would be de novo or on-the-record and asked how that fit that into the deadline.
Sparks explained that in the proposal before Council, Beaverton’s process would be
similar to Hillsboro’s. He explained that after the 10-day appeal period was over, staff
would immediately go to Council for a decision on whether to have a de novo or on-
the-record hearing. He noted that the proposed Chapter 50 included the criteria for
making this decision, which Hillsboro does not have.
Coun. Brzezinski said that her bottom line on whether or not to support the proposed
change would be the 120-day deadline. She said she needed the information from
the other jurisdictions to make a good decision.
Coun. Stanton said that in Beaverton’s experience, only once did the City miss the
deadline.
Mayor Drake explained that the City constantly pushes the 120-day deadline. He
noted that four months was not a lot of time to process an application and get through
all the steps. He added that Beaverton has an additional design review process that
takes time. He said that the City comes up to the wall every time.
Coun. Stanton asked why on-the-record hearings would be within the 120 days and
de novo would not.
Sparks replied that the 120-day clock was not the most significant rationale for the
type of hearing held. He said that the major difference was the introduction of new
evidence at a de novo hearing, which then required staff time for responses. He
noted that with on-the-record the facts were already known and no new evidence was
brought in that required staff analysis or response.
Coun. Stanton asked about the Code timeline for introduction of new evidence.
Sparks explained that anyone could provide testimony and evidence up to the time of
decision.
Coun. Stanton asked if the new evidence was the only issue being addressed with
on-the-record.
Sparks confirmed that if the hearings were on-the-record, only evidence that was
presented to the initial decision-making board would be presented. He explained that
the Council could decide to have a partial de novo hearing, but the Council would
have to decide what new evidence would be heard. He confirmed that if the Council
held a partial de novo hearing on a specific subject, only that subject could be
discussed at the hearing.
Mayor Drake noted that with a de novo hearing, the evidence could come from
developers or citizens; with on-the-record hearings both sides would present their
case at one hearing. He noted that if the appeal hearing was based on what was
discussed before the initial board, the developer could not present new information
but the citizens would have the opportunity to hone their information, as long as they
stayed focused on what was discussed at the initial hearing.
Irish Bunnell, Planning Consultant, explained that City Code timeline for a Type 2
Application (an administrative decision that could be appealed to either the Planning
Commission or Board of Design Review first and to the City Council second) was
180 days. He said to meet the 120-day deadline, the City used a very expensive and
time-consuming process by noticing two hearings and two appeal hearings at the
same time in the newspaper. He said that the expense would be avoided with the
timelines proposed for Chapter 50. He explained that the longest process could take
104 days if everything went perfectly; but the reality was the schedule was often
disrupted. He noted that when an application was before Council at a de novo
hearing, and new evidence was presented, staff could not do an in-depth technical
analysis on the new evidence and often the answers were “off the cuff.” He noted
that some cities do not conduct the extensive technical analysis that Beaverton would
do for a land use process. He stated that the 120-day deadline was tough to meet
and even under the new proposed Chapter 50, it would still be difficult.
Coun. Soth asked if in Washington County’s process, any appeal from the Planning
Commission or the Hearings Officer went directly to LUBA.
Sparks replied that was correct for the examples in the memo and for quasi-judicial
plan amendments.
Bunnell noted that in Portland, the City Council removed itself from the appeals
process and appeals would go directly to LUBA.
Coun. Soth confirmed that the County’s Planning Commission and Hearings Officer
do not hold joint hearings; and that the County clearly delineates the responsibilities
for each body. He confirmed that the Hearings Officer’s decision was appealed
directly to LUBA and not the Planning Commission.
Coun. Soth asked how the City of Hillsboro handled appeals.
Sparks explained that in Hillsboro, the Planning Commission looked at land divisions
and text amendments; the Hearings Board looked at Use Permits, Variances and
Zone Changes. He added that Beaverton was unique in that it had a design review
process. He said other jurisdictions were more prescriptive in giving applicants a
choice of materials to use; if there was a deviation from what was allowed, then it
would go to the Hearings Officer or Planning Commission.
Coun. Doyle asked if staff had sensed that the process was not working.
Bunnell replied that the process was broken; that was why all this time was spent
trying to fix it and why this recommendation was before Council. He stressed that
staff was managing the unmanageable right now; scrambling was done behind the
scenes to make it come out right.
Coun. Doyle asked how removing de novo would fix things.
Bunnell explained that if there was a de novo hearing at 104 days, and new evidence
was presented, Council would look to staff for guidance on the new information. He
noted staff would not have time to do a thorough analysis of the evidence.
Coun. Doyle said he was hearing that Council was not making the best decisions
given what was just said.
Bunnell said it was difficult to make the best decision when you have incomplete
technical analysis of a volume of new information.
Mayor Drake reminded Council that in December, 1992, Council acted on a
recommendation by another citizen committee to consolidate the Board of Design
Review and the Planning Commission. He noted that lost on a split vote. He said
that he thought good decisions were made, but getting a good analysis or review of
the new information was difficult. He noted that some of the changes proposed would
help the process be better refined. He noted that ten years ago there was a sincere
attempt to consolidate the two boards; he saw that as a positive recommendation
because it meant there would be one less hearing. He said it was not new that the
process needed work and the timeline of 120 days was very short, especially when
citizen involvement was fostered in Beaverton.
Coun. Stanton noted that applicants/developers had been willing to extend the clock
when it was to their benefit.
Mayor Drake noted that the City could not compel the extension.
Coun. Brzezinski referred to page 2 of Sparks’ June 28 memorandum regarding
availability of information. She asked how citizens would know that something had
been submitted; was there a formal notice process.
Sparks explained that when an application was complete, the City would send out the
notice that the information was available. He noted that if an applicant presented a
neighborhood meeting as part of the process, the residents were aware that
something would be happening. He noted that several applicants send notices well
outside the 500 foot requirement, that City staff could be contacted on the Internet or
by other means, NACs were notified and citizens personally called him.
Coun. Brzezinski referred to Point 4 on the same memo and asked if that information
automatically was distributed to citizens who requested earlier information.
Sparks explained that the City did not provide free copies of material to anyone other
than the applicant. He said that if a staff member knew someone was interested in a
specific topic, they may contact them to let them know information was available. He
said that most of the time it was not new evidence; it was mostly clarification of
previous information.
Coun. Brzezinski said that the problem she had was that a person had to be very
knowledgeable to use the available information. She said the appellant was in the
same position as Council when a decision had to be made with weak information.
Mayor Drake noted that the average citizen did not care unless it was in his
neighborhood. He noted that over time the process was opened to provide more
information to the citizens. He noted examples were: open Facilities Review
meetings; a 300 foot notice range was extended to 500 feet (the State only required
100 feet); developers had to meet with the neighborhood prior to the City accepting an
application; the City funds one appeal from each NAC; planning staff now attends CCI
meetings; the citizen committee that looked at this Code change was appointed by
the Mayor so that citizens had an edge; the NAC’s would receive land use notices;
the City has the most comprehensive Web site in the region. He concluded there
were multiple opportunities for citizen information.
Coun. Brzezinski asked what the ramifications would be of having a sunset clause in
a few years, to see what Council may think of it.
Mayor Drake explained that the Council had the opportunity to change it any time. He
said his concern with a sunset clause was determining what would it fall back to. He
thought a better method would be to continue the regulation and modify it as the
process evolves. He asked for a legal opinion from the City Attorney.
Pilliod explained that ordinance could have a sunset, but writing it would become
more complicated when determining what the process should return to. He said that
to say that it would go back to the current process was an over simplification,
because only some of the Code sections would revert and others would stay in
effect. He noted the Council could always schedule a review of the ordinance,
instead of inserting a sunset clause or could have the Planning Commission and staff
do the review. He said a sunset clause was not necessary for Council to get an
understanding if the ordinance was working well or producing unwanted results.
Coun. Soth noted that one of way to do this would be to include the review in the
Planning Department work plans.
Coun. Ruby referred to the problem with the current system placing a heavy burden
on staff to evaluate new evidence at the last minute. He asked if that could be
addressed through internal guidelines with staff expectations. He said he would not
expect staff to scramble and evaluate late information to supplement or modify the
original staff report.
Mayor Drake responded that whatever was submitted prior to the deadline had to be
evaluated, included in the decision, and part of the record of the appeal. He noted it
was hard for staff to do a thorough evaluation with last minute submittal of
information. He noted that on-the-record hearings gave everyone the opportunity to
view the information in a timely manner.
Coun. Brzezinski asked if there was anything prohibiting Council from saying that if
new evidence was going to be brought in, it had to be included with the appeal.
Pilliod explained that staff was thinking of establishing a cutoff for people to effectively
provide information and yet not leave staff, opposition or applicants unable to respond
because of the lateness of the submittal. He stressed that the applicants, appellants
and staff felt the same about the need for time to analyze new evidence. He noted
that unless the Council wanted to be a hearings body (all hearings de novo), Council
could create an exception and allow limited de novo if new information was submitted
to the Planning Commission or Board of Design Review, as part of the process,
within a certain number of days of their decision.
Mayor Drake asked if it would apply to both applicant and opposition. He said if the
opposition submitted information that swayed the Board or Commission and it was
cited as one of the reasons for the decision, could the applicant’s appeal be based on
that late information.
Pilliod stated there was a reason for treating both instances the same or differently.
He noted that the applicant was not at a disadvantage for extending the process and
responding to last-minute information. He said an opponent did not have the flexibility
to request an extension. He said he saw justification for limited de novo only in the
event of an applicant submitting information within that time frame.
Pilliod stated that if the Council was unconvinced that the proposed Chapter 50 was
the way to proceed, its options were to deny the proposal and direct staff to prepare
Code provision changes that would leave the de novo hearing procedures intact, with
other changes to Chapter 50 as proposed, or remand the matter to the Planning
Commission to consider other alternatives.
Coun. Soth said he was satisfied that the information illustrated that there was no
consistency among jurisdictions. He felt that the City should strive for more
consistency so that citizens outside of the City would know the procedures. He
confirmed with Pilliod that information submitted should go to all parties.
Pilliod explained that the proposed changes would provide staff and others one month
to prepare an analysis and respond to new information; this was not available in de
novo when new evidence was submitted late in the hearing process. He noted that
evidence from staff submitted after an application was complete was for clarification
of an application.
Coun. Brzezinski referred to page 59, Point 3, of the staff report (memorandum from
Catherine Arnold, in the record) and asked staff if it was correct that with on-the-
record appeals, only people who spoke at the earlier meeting would be able to speak
at the appeal.
Sparks confirmed that was correct. He explained that an applicant would hire a firm
to represent him at the Planning Commission level; anyone on the firm’s staff could
testify at either hearing. He said that appellants would have the same ability and
would be allowed to have an attorney represent them at the City Council hearing if the
attorney was retained prior to the Planning Commission hearing.
Coun. Stanton noted that if she was an appellant, but did not attend or submit written
testimony at the Planning Commission hearing, she could not speak at the on-the-
record appeal hearing.
Sparks said that was correct, but the exception was if she had hired an attorney prior
to the initial hearing, that attorney could speak at the Council appeal hearin