BEAVERTON CITY COUNCIL
REGULAR MEETING MINUTES
JUNE 17, 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, June 17, 2002, at 6:50 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, Assistant City Attorney Bill Scheiderich, Human
Resources Director Sandra Miller, Finance Director Patrick O'Claire, Community
Development Director Joe Grillo, Engineering Director Tom Ramisch,
Operations/Maintenance Director Gary Brentano, Police Chief David Bishop,
Library Director Ed House, Development Services Manager Steve Sparks, Senior
Planner John Osterburg, Emergency Manager Mike Mumaw, Police Officer Stan
Newland, City Recorder Sue Nelson, Deputy Recorder Cathy Jansen; and
Consultant Irish Bunnell.
CITIZEN COMMUNICATION:
Martin Kagan, Beaverton, said his concern was about the Murrayridge
Development and what the Murrayhill Sub-Association went through to protect the
trees adjacent to this property. He explained that in1999 the Sub-Association
participated in the final dialogue between the developer and City on the
development. He said that the developer was granted a series of adjustments
that increased the value of the property and the residents asked that he maintain
as many trees as possible along the border of the property. He concluded that
the project was completed and an acceptable amount of trees had been
preserved.
Kagan reported that this morning he heard the sounds of vehicles and the
buzzing of saws, and workers were thinning the trees. He said he tried to tell
them about the agreement to preserve the trees, but they indicated that they were
authorized by City staff to remove these trees on behalf of the local residents. He
emphasized that this was in direct opposition to the letter to Michael Robinson
from the City of Beaverton that indicated that the trees would be protected. He
noted there were ordinances and grandfathered rules that protected the trees and
read from an ordinance “tree removal beyond that described above shall require
separate review through the Tree Removal Permit Process Section 207.6.” He
said he was not certain this section was implemented. He stressed that his
concern was for the trees and asked that the Council take appropriate action to
protect them.
Mayor Drake thanked Kagan for contacting him and said that he visited the site
today. He said that staff had additional information and that a meeting was set for
tomorrow with the builder that managed the site.
Community Development Director Joe Grillo noted that Kagan’s comments were
correct and confirmed that tomorrow he would meet with the developer and
current management. He said that they would be reminded that prior
management entered into an agreement with regard to removal of certain trees,
which would require a Type 1 Permit. He noted that the City would have to
consider the arborist’s report submitted by the applicant, and that the City’s
arborist would inspect and submit comments for consideration. He said that he
directed staff to inform D. R. Horton that each property owner that wanted to
remove a tree would be required to obtain a Type 1 Permit. He clarified that
mitigation would require appropriate replanting, and it would be necessary to
review each individual situation on the validity and necessity of the request.
Coun. Stanton confirmed with Grillo that the proper permits were not obtained for
the trees that were removed today and that the work was stopped. She thanked
Kagan for his diligence and efforts on behalf of the citizens.
Mayor Drake asked that Kagan serve as a liaison on behalf of his neighbors with
regard to the appropriate development of this particular project.
Kagan said he would do so.
Pavel Goberman, Beaverton, spoke about the high cost of health care, especially
for the elderly. He said he wrote a book about health and fitness and wanted to
have a meeting at the Beaverton Library to provide this necessary information to
the public. He said he wanted to discuss health issues with the public, not
promote his book.
Mayor Drake advised Goberman that the City of Beaverton was not able to
provide public space for individuals to promote their services or products and that
any use of public facilities shall be for non-profit purposes.
COUNCIL ITEMS:
Coun. Stanton said the Taste of Beaverton would be held June 21-23, 2002. She
urged everyone to attend the parade, noting that 140 entries were submitted and
that the Beaverton High School band would participate.
Coun. Stanton announced that the Planning Commission had scheduled a
hearing on the Inventory of Scenic Trees for Wednesday, June 19, 2002.
Coun. Stanton noted that the Beaverton Library scheduled a preview and Open
House for the “Adaptive Technology Center” Thursday, June 27, 2002, at 11:00
a.m. She explained that the Center provided services for individuals with
disabilities.
Linda Adlard, Chief of Staff added that the Open House was to celebrate the
installation of equipment and materials to assist individuals with sight disabilities.
Coun. Stanton announced that the Tualatin Valley Water District (TVWD) would
be meeting on the proposed Bull Run Regional Drinking Water Agency on
Thursday evening, June 27, 2002, at their site on SW 170th Avenue.
STAFF ITEMS:
Adlard noted that she gave the Council information packets that would go out to
the citizens regarding the solid waste franchise contracts and the rate increase.
She said that citizens would be encouraged to recycle and use the weekly yard
debris pickup. She said that a different packet would be sent to the commercial
customers that reflected the many different commercial rates. She suggested
that any questions concerning the program be referred to her office.
PROCLAMATIONS:
Mayor Drake declared the week of June 16 through 22, 2002 as National
Homeownership Week
Mayor Drake declared July 2002, as Recreation and Parks Month
Dave Endres, Tualatin Hills Park and Recreation District (THPRD), noted that a
number of activities were planned in observance of National Recreation and
Parks Month. He handed distributed information about THPRD’s activities for July
2002.
Mayor Drake presented the proclamation to Endres and expressed the City’s
appreciation to the THPRD, its Board of Directors, and staff.
Coun. Stanton thanked THPRD for taking care of the parks for the City and
providing these services efficiently and cost-effectively.
Coun. Doyle complimented the park district’s efforts, and pointed out that without
this service, the City would not have as much to offer to residents or visitors.
CONSENT AGENDA:
02184
MOVED TO ACTION ITEM: Findings and Order Reversing the Board of Design
Review Approval of Beaverton School District’s Transportation and Support
Center; BDR 2001-0198, APP 2002-0005, 2002-0006 and 2002-0007
Coun. Ruby MOVED, SECONDED by Coun. Soth that the Consent Agenda be
approved as follows:
Minutes of the Regular Meetings of April 1 and April 8, 2002.
02185
CUP 2002-0001 Washington County Sheriff’s, Elections and Justice Court
Building Conditional Use Permit
02186
Resolution Consenting, with Conditions, to the Change of Control of AT&T Corp.,
the Indirect Parent Company of TCI Cablevision of Tualatin Valley, Inc. (Res. No.
3667)
02187
A Resolution Awarding Solid Waste Franchises for a Seven Year Term
Commencing July 1, 2002. (Res. No. 3668)
02188
Resolution Approving the Utilities Annex as Functional Annex Z of the City’s
Emergency Response and Recovery Plan (Res. No. 3669)
02189
Resolution Approving the Mental Health Services Annex as Functional Annex Y of
the City’s Emergency Response and Recovery Plan. (Res. No. 3670)
02190
Development Code Update Project – Chapter 40 (TA 2001-0001)
02191
Development Code Update Project – Chapter 10 (TA 2001-0003)
02192
Development Code Update Project – Chapter 60 (TA 2001-0004)
02193
Development Code Update Project – Chapter 90 (TA 2001-0005)
02194
Development Code Update Project – Municipal Code Chapters 2, 5, and 9 (TA
2001-0007)
02195
Development Code Update Project – Chapter 20 (TA 2001-0008)
02196
Bid Award - Street Overlay Project for Fiscal Year 2001/2002
02197
Liquor License: La Nortena (New Outlet)
02198
Bid Award – 2002 Industrial Four Wheel Forklift
Contract Review Board:
02119
PULLED: Contract Award – Workers’ Compensation Third Party Claims
Administration Services (Rescheduled to 6/24/02)
02200
Contract Award – Engineering Services for Phase 1 of the Hall Watson
Beautification Project
02201
Contract Award - Access Control and Employee Identification System
Coun. Brzezinski referring to AB 02201, asked for clarification concerning the bid
award.
Operations/Maintenance Director Gary Brentano explained that the e-mail
received concerning Agenda Bill 02201 was from Honeywell’s representative who
was not satisfied because he was not awarded the bid. He explained that IEP
had extensive experience, a review of their references left staff quite comfortable
with their proposal, the bid was much less and the solutions more sophisticated
and innovative than Honeywell’s. He noted that IEP was licensed and had an
existing business in Oregon.
Question called on the motion. Couns. Brzezinski, Doyle, Soth, Ruby and
Stanton voting AYE, the MOTION CARRIED unanimously (5:0), with Coun.
Stanton abstaining from voting on the minutes of April 1, 2002 and April 8, 2002.
ACTION ITEM:
02184
Findings and Order Reversing the Board of Design Review Approval of Beaverton
School District’s Transportation and Support Center; BDR 2001-0198, APP 2002-
0005, 2002-0006 and 2002-0007.
Mayor Drake observed that this item consisted of an order reversing the Board of
Design Review’s approval of the Beaverton School District’s Transportation and
Support Center.
City Attorney Mark Pilliod stated that the City Council was given a draft of the Final
Order on Friday, June 14, 2002, which reflected Council’s June 10, 2002, decision
on this appeal. Since then he received input from Council, staff, and attorneys for
both the applicant and the appellants and reproduced the order, including
notations of alterations and deleted material. He said that the Final Order
appropriately represented the complete decision of the City Council. He
recommended that the order be approved, with the condition that he would be
directed to create a final version of the order, to be signed by the Mayor tomorrow
in time to meet the deadline for making this decision.
Coun. Stanton asked if there were any substantive changes.
Pilliod replied that the order did not contain any changes other than those noted.
Coun. Ruby MOVED, SECONDED by Coun. Stanton, that the Council direct the
City Attorney to prepare a clean final draft of the Findings and Order reversing the
Board of Design Review approval of the School District’s Transportation and
Support Center, for signature by the Mayor by June 18, 2002.
Coun. Soth stated that although he was the lone dissenter at the hearing on this
issue, the City Attorney did an admirable job addressing all of the issues and
concerns within this order. He said since the order addressed everything taken
into consideration he intended to support the motion.
Question called on the motion. Couns. Brzezinski, Doyle, Soth, Ruby and
Stanton voting AYE, the MOTION CARRIED unanimously. (5:0).
PUBLIC HEARINGS:
02202
Public Hearing to Consider Vacation of a Portion of the Right-of-Way of SW Metz
Street and SW 124th Avenue (SV 2002-0001)
Mayor Drake opened the public hearing.
Grillo read a prepared statement defining the process that needed to be followed
for this hearing, including the various required disclosure statements (in record).
Grillo asked if there was anyone present who wanted to challenge the Mayor’s or
Councilors’ right to hear the matter that evening.
There were no challenges.
Mayor Drake noted for the record that the Mayor voted only in the event of a tie
and since there were five councilors present, it would be unlikely that he would
vote.
Grillo asked if there were any Councilors who wished to abstain due to
impartiality.
There were none.
Grillo asked if there were any Councilors who received ex parte contacts, the
nature of such contacts and if the contacts impaired the Councilor’s impartiality or
ability to vote on the matter.
Coun. Stanton stated that although Catherine Arnold was a friend of hers and they
have had conversations on this project, it did not affect her ability to make a fair
and impartial decision on to this issue.
Coun. Doyle said he discussed this issue in terms of process with several people
and that it did not affect his ability to make an appropriate decision.
Mayor Drake said the Chamber of Commerce’s first contact on the dedication of
this property to Habitat for Humanity, he participated in broad discussions on this
project and process. He did not feel he was biased in any way.
Coun. Soth observed that he was quite familiar with this specific property.
Grillo asked if there was anyone present who wished to challenge the Council’s
authority to hear the matter.
There were no challenges.
Senior Planner John Osterberg presented the staff report and explained that the
City of Beaverton owned Tax Lot 601 and had determined that this portion was
not needed for its original intended purpose (the future widening of SW Metz
Street and extension of SW 124th Avenue). He added that because these street
improvements were unnecessary, staff determined that the City did not need the
property. He explained that on May 23, 2002, the Council approved Resolution
No. 3664 initiating this street vacation and that the Council had the authority to
approve this action unless a majority of the property owners within the affected
area filed a written notification of objection to the City. He noted that some
property owners expressed opposition to this action and that it was necessary to
determine if the individuals who objected were the majority property owners within
the affected area. He explained that the correct method to file an opposition was
to file a written objection to the proposal, which was done, and this document
would be presented to the City Council.
Mayor Drake explained that the City Recorder had received a written document
objecting to this proposal today and requested clarification of whether it had been
determined if this document was legal.
Assistant City Attorney Bill Scheiderich indicated that it was Council’s discretion
to determine whether the petition submitted as written objection to this proposal
was an appropriate legal document. He noted staff was not aware of who
circulated the petition or what was said when it was being circulated; that would
be an appropriate area of inquiry by Council during the hearing.
Osterberg introduced into the record a map of the affected area, as described by
Oregon Revised Statute (ORS) and emphasized that property lines did not define
this map.
Coun. Soth asked Osterberg if he had the opportunity to review the addresses on
the petition and determine whether they were located within the affected area.
Osterberg advised that staff had addressed this issue and would present the
findings to the City Council.
Coun. Stanton asked how many buildings would be affected by this proposal,
specifically in terms of single-family and multi-family homes.
Osterberg replied that the ORS did not require a count of the buildings; it required
a count of the land area and property owners affected, which would be disclosed
shortly.
RECESS:
Mayor Drake called for a recess at 7:45 p.m.
RECONVENE:
Mayor Drake reconvened the meeting at 7:55 p.m.
Osterberg noted there was a question concerning the number of tax lots in this
proposal. He explained that while the proposal involved thirty-seven tax lots, the
boundaries of these tax lots were not contiguous with the affected area per ORS.
He noted that while some individuals may have signed the petition objecting to the
proposed street vacation because this petition was only received today, it had not
yet been established whether these properties were located within the affected
area and ownership had not been verified. He recommended that the Council
hold the public hearing and take appropriate action and that prior to presentation
of an ordinance to Council, staff would determine if ORS standards had been
met.
Mayor Drake asked if this property could be developed if the individuals objecting
to the proposal were in the majority and could the property be developed without
vacating the street.
Osterberg stated that due to the unusual configuration of Tax Lot 601, he was not
certain how the property could be developed without the proposed vacation. He
added that while the six-foot wide strip along the south side of SW Metz Street
could not be developed, it might be possible to create one lot from the area
referred to as the SW 124th Avenue extension area.
Scheiderich confirmed that Mayor Drake had asked how Tax Lot 603 could be
developed without the vacation of Lot 601. He noted that there might be confusion
regarding how a property with such an odd configuration would be considered a
tax lot. He explained that a review of the history of the lot determined that a
dedication of right-of-way had been put in the form of a dedication deed and that it
was recorded by Washington County as a fee-simple deed; an examination of the
deed showed that this was a dedication of right-of-way. He added that this
property was mistakenly identified as a tax lot, rather than a right-of-way. He said
the decision before Council at this time involved the vacation of a right-of-way
known as Tax Lot 601.
Mayor Drake asked if this would impact the width of the street.
Scheiderich emphasized that the vacation involved only a portion of Tax Lot 601.
He noted that the proposal provided that four feet of the ten feet would remain as
right-of-way and this right-of-way may or may not be required for development of
the adjacent property.
Coun. Soth asked whether this would provide the opportunity for the development
of the SW 124th Avenue Extension.
Osterberg advised that he was not certain of the exact square footage. He
speculated that the area involved was approximately 2,000 to 2,500 square feet.
Patrick Noziska, Beaverton, referred to a document circulated by David Rawson,
who was not in attendance but was a property owner in the affected area. He
said that Rawson approached several property owners a couple of months ago,
with regard to the proposed vacation and development of the property. He said he
was aware that the development was not part of this discussion. He said that the
property owners became concerned with whether any potential development on
this site would actually be in the best interest of the public, not only in terms of the
traffic flow across SW Metz Street, but also in terms of how any proposed
development would fit in with the existing properties. He noted that the property
owners took a second look at what they were asked to sign in December 2001,
which he said appeared to be a reasonable petition to vacate a street to allow for
several new developments. He said he rescinded his approval, in writing, to the
Planning Commission, and submitted a second letter to the Commission
reiterating his opposition. He added that Rawson had approached the other
property owners in an attempt to convince them to take the same position. He
said that they also discussed the issue with David Kane, and that Kane had
offered some suggestions on how to proceed in this matter. He said that the
original approval of the property owners was given without a real understanding of
the potential impact and that the property owners had concerns with the number
of units, the traffic flow, and values.
Mayor Drake requested clarification of whether Noziska had mistakenly referred to
Henry Kane as David Kane.
Noziska verified that Henry Kane was the individual who had provided assistance
and said that this assistance had not included legal advice.
Coun. Soth asked whether the number of proposed units had been mentioned
when signatures were being gathered.
Noziska replied that it was not discussed when the signatures were gathered. He
stated that he received a letter dated June 1, 2002, from a group called
Leadership Beaverton. He said it was later determined that Leadership
Beaverton was sponsored by the Beaverton Chamber of Commerce. He said the
letter referenced five new single-family homes and the number of units. He noted
a sign he saw on SW Hall Boulevard concerned him because it said “Leadership
Row” and that there had been a great deal of sensitivity with regard to a row
development in the Metro area. He explained that there had been a great deal of
speculation and concern among the property owners with regard to the possibility
of multiple-story row houses or a development that would be the functional
equivalent of row houses. He said that his back yard faced SW Hall Boulevard
that did not provide any privacy during the winter months and that the situation
would only deteriorate with this proposal. He indicated the location of his home
on SW Wisteria Place on the map.
Steve Hall noted the location of his home on SW 124th Avenue on the map and
said that the area was crowded with no sidewalks or curbs. He said that he and
his wife received information on this proposal in the mail and signed a document
indicating their approval; later they attempted to rescind their signatures through
the efforts of Henry Kane. He discussed the proposed vacation and observed
that while this was not a heavily traveled street, it was very narrow, it provided a
back door to many different locations and was very busy. He said that he was
originally under the impression that all of the lots would be together, rather than
separated between the City of Beaverton and a private owner. He concluded he
had nothing against Habitat for Humanity but this proposal was like trying to store
five pounds of sardines in a two-and-one-half pound bag.
Coun. Stanton asked why this development would make it more difficult to travel
up and down SW Metz Street.
Hall replied that once houses were built, vehicles would be parked in front of the
houses, which would create problems on this narrow street. He explained that in
this 1,000 square foot zoning district, a home with a single-car garage would be
three stories in height to not exceed the lot line. He expressed his opinion that
people with no place to park would park in front of his house. He said that
although two parking spaces per residence would be adequate, it would be
extremely difficult to fit a home, two parking spaces and a driveway on 1,000
square foot lots.
Mayor Drake explained that if the proposed right-of-way vacation were approved,
Habitat for Humanity would be able to locate five homes on the site and meet the
applicable criteria to locate five 2,000 square foot lots within this area.
Coun. Soth noted that Hall had referenced traffic currently on SW Metz Street and
asked whether he was referring to automobiles, pedestrians, or bicycles.
Hall advised that it involved all three and that while it was not heavily used, it did
provide access. He repeated that five more homes would create more traffic.
Coun. Soth reminded Hall that he was not able to speculate with regard to
potential development at this site.
David Anderson, Beaverton, stated that he was a resident of the neighborhood
and a Board Member and Treasurer of the New Horizons Condominium Planned
Unit Development, which was adjacent to the subject site. He said that they
testified before the Planning Commission in 2000 with regard to a proposal to
rezone the entire block from R-2 to R-1. He said that during that process,
discussions with Habitat for Humanity resulted in an understanding to the property
transfer, and that basically the only way that this property on SW Metz Street
could be developed would be to develop this R-1 property at R-2 criteria. He
noted that was the action taken by the Planning Commission. He pointed out that
a portion of this block had remained R-2, rather than R-1 and that the residents
had objected to any plans for SW Metz Street to be extended.
Anderson expressed his opinion that the proposed action would eliminate the
potential for this to occur and that this would impact the traffic flow on SW Sussex
Avenue and SW Camden Lane from individuals who would utilize this street as a
cut-through street, rather than going to SW Hall Boulevard.
Coun. Stanton thanked Anderson for addressing the applicable criteria.
Esther Nichols, Beaverton, said that a great deal of energy and time had been
wasted on this issue. She said she originally signed the petition supporting the
proposed right-of-way vacation and she later realized that the objections involved
a lot of speculation by those who were not truly aware of how the neighborhood
would be affected. She said that she owned a nice single-family home in the area
and noted that there was no way to control the amount of vehicles that traveled in
an area. She added that she did not believe that this would affect her property
and she did not think it would harm other properties.
Bruce Nichols, Beaverton, expressed that he supported the testimony of his wife,
Esther Nichols.
Christopher Redmond, Chairman of the Vose NAC, referred to the NAC minutes
of May 5, 2002, noting that as a neighborhood board, they realized that there was
concern about this issue and setup a neighborhood meeting on this project. He
said that they went to great lengths to make certain that everyone concerned
received a hand-delivered personal notice and that he was disappointed when
only five of the neighbors attended the meeting. He encouraged those members
of the Vose NAC in attendance to be aware of this example of why it was
important to attend the NAC meetings and emphasized that these meetings
would only serve to benefit them. He explained that there was a great deal of
confusion on this issue and that people misunderstood the development proposal
versus the street vacation proposal. He said that it was his understanding that
the development was going to occur; with or without the street vacation, and that
although the result could be four houses, rather than five, this property would still
be developed. He expressed his opinion that the majority of those in opposition
were merely confused with regard to the issues and offered to respond to
questions.
Diane Weiner, Program Coordinator for Leadership Beaverton, clarified that this
organization was a community awareness program that strove to inspire citizens
to identify issues of concern in the community and then step forward and take
appropriate action. She explained that each year, approximately 25 members of
the community participated in the program and each class did a community
service project. She explained that the class of 1999 identified the scarcity of
affordable and safe housing in the community as an issue of concern and that the
class contributed to finding a solution for this problem by sponsoring a Habitat for
Humanity home. She said class members had been working on fundraising and
soliciting donations and she provided some administrative support. She noted
that at some point before she became involved, the project had been referred to
as Leadership Row and she expressed her opinion that this provided a more
appropriate impression than Leadership Street.
Weiner expressed her support of the proposed street vacation and that she
believed that Habitat for Humanity would construct homes that were appropriate
for the neighborhood and applicable to the zoning regulations. She concluded
that this organization had selected homeowners, such as Katie Nichols DeBaca,
who would take pride in their homes and make wonderful neighbors.
Katie Nichols DaBaca, Lake Oswego, stated that although she served as a youth
representative for Tualatin Valley Youth Advisory Council and the State of Oregon
Youth Advisory Council, that at this time she was representing her own family.
She expressed her support of the proposed street vacation and she said she
hoped a decision would be made this evening. She pointed out that as one of the
Habitat for Humanity families, her family had issues that would need to be
addressed as quickly as possible. She explained that her mother was a legally
blind insulin-dependent diabetic who recently had heart surgery, emphasizing that
it was necessary to provide her with the stability a new home would provide. She
pointed out that she would personally find a great deal of comfort in knowing she
had a safe home, particularly with regard to the safety and quality of life that this
home would give her mother.
Coun. Soth requested clarification of whether DaBaca felt that the extra space
provided by the proposed street vacation would create more room for the benefit
of her family.
DaBaca agreed that the additional space would benefit her family and
emphasized that the extra space would also provide adequate room to allow
another low-income family the opportunity to own a home. She explained that this
would provide another family with the opportunity to improve their own lives and
hopefully become outstanding members of this community.
Melanie St. John, Beaverton, Habitat for Humanity member, said she supported
the proposed street vacation and she favored providing low-income housing.
Coun. Stanton said that the Habitat projects maintained a great reputation within
the neighborhoods.
St. John advised that Habitat for Humanity utilized a very extensive selection
process that takes six months from the initial recruitment to the actual selection of
families. She explained that the selection was based upon three criteria, as
follows:
1.
Need: the family was currently living in substandard housing and paying
greater than 50% of their income for their housing or too many individuals
were living within a home that was not large enough, creating an unsafe
and unhealthy environment;
2.
Ability to repay a mortgage: Habitat for Humanity was a “hand-up”, rather
than a “hand-out”, and it was necessary to provide verification of a stable
income to meet the monthly mortgage and property tax payments as they
become due; and
3.
Willingness to partner with Habitat for Humanity: this involved contributing
more than 500 hours of sweat equity into the construction of their own
home and the homes of others prior to being allowed to move into their
home.
St. John concluded that based upon this criteria, Habitat for Humanity was able to
select families who cared about the home their families would live in and were
willing to make necessary efforts to maintain these homes.
Yvonne Fagan, Tigard, said that she would be one of the homeowners on this
project and that she supported the street vacation. She asked that this decision
on the street vacation not be delayed any further so that these homes could be
built. She reiterated that her family was totally dependent on her income and that
she paid so much in rent, it would be impossible for her to purchase a home the
traditional way which would include a down payment. She said that the street
vacation was an optimal use of this property.
Mayor Drake expressed his appreciation of the comments of Fagan and DeBaca
and repeated that Habitat for Humanity provided a hand-up not a handout. He
said he personally researched Habitat of Humanity and he was impressed with
the fact that these future homeowners were very productive members of society.
Coun. Stanton stated that in the early years of her marriage she relied on
commodity foods and Section 8 housing and emphasized that it was neither
practical nor fair to judge an individual based upon the vehicle they drove or their
type of employment. She challenged anyone who had not researched Habitat for
Humanity to do so and said that these new families would not only fit into the
community, they would more than likely attend the NAC meetings.
Pat Huntting, Tigard, expressed her support of the proposed street vacation.
Marilyn Palma, Aloha, said she supported the proposed street vacation.
Eleanor Brauner, Beaverton, said she supported the proposed street vacation.
Edward Brauner, Beaverton, Board of Directors member of Habitat for Humanity,
expressed his support of the proposed street vacation. He thanked Council for its
recognition of the need for affordable housing and pointed out that the local
chapter had completed its twenty-second home this year.
Catherine Arnold, Beaverton, there was a great deal of confusion on this issue,
particularly as it related to density. She noted that at the neighborhood meeting
held two years ago, people expressed concern with high density and the potential
of having others looking down into their yards. She said she had discussed this
issue with some of those who had signed the petition and that these individuals
were still confused with the different issues involving a street vacation and
potential development. She said she would question whether these individuals
understood what they signed.
Mary Grimes, Beaverton, expressed her support of the street vacation and said
that she was a member of the 1999 Leadership Beaverton class that sponsored
this project. She emphasized that the families chosen take great pride in their
home ownership. She said that in addition to addressing the affordable housing
issue, this class wanted a visible project that would involve the entire community
(businesses, organizations, and individuals) and bring everyone together.
Bill Huntting, Lake Oswego, construction supervisor for the proposed project, said
that they were excited about the project. He looked forward to bringing the
improvements into that area and encouraged the approval of the vacation.
Mayor Drake confirmed that there would be curbs and a sidewalk along SW Metz
Street and that storm water would go down the street to SW Hall and into the
storm drain.
Huntting explained that there were currently two storm drains on the corner of SW
Metz Street and SW Hall Boulevard and that a storm line would be installed down
the middle of SW Metz Street with appropriate improvements. He noted that this
would catch the runoff from the houses in the neighborhood; the water would go
into the storm sewer, which would improve the property for everyone using this
street.
Coun. Doyle confirmed that two off-street parking spaces would be provided for
each home.
Coun. Brzezinski confirmed with Osterberg that as defined by the ORS, the
affected area for this proposal included portions of 37 properties.
Coun. Brzezinski questioned whether it was necessary for 50% of the property
owners within the affected area to object to the proposal.
Osterberg stated that if a majority of the affected property owners objected, staff
would be unable to prepare an ordinance for the street vacation. He added that
Council would be advised of this situation, following a review of the signatures
received today.
Scheiderich clarified that ORS required that it must be 50% of the property
owners of that area, not 50% of the owners. He said that this meant square
footage, which was how the ORS defined affected area.
Coun. Brzezinski asked if it was possible to determine now if there was a majority
objection based on the ownership of square of land.
Scheiderich suggested that a break for consultation with the Council could
potentially provide an adequate opportunity to determine whether the owners of a
majority of the affected property had expressed opposition to this proposal, since
the deadline to submit written objections was at 5:00 p.m. today.
Coun. Brzezinski noted there were 15 signatures in opposition to the proposal.
Scheiderich said that the Council should be counting the area, rather than the
signatures, observing that it was also necessary to validate the actual signatures.
Coun. Brzezinski asked why the condominiums east of the proposed project
were not within the affected area.
Scheiderich advised that those condominiums were not considered affected
because the street ended before reaching that development.
Coun. Soth pointed out that a number of signatures on the petition were property
owners on SW Wisteria Street, which was not within the affected area.
Scheiderich replied that he was correct and that the statute required only going
200 feet south of SW 22nd Street to determine the affected area in this case.
Coun. Doyle asked if Council could get the determination on the objection before
making a decision.
Mayor Drake and the Councilor’s agreed.
RECESS:
Mayor Drake called for a brief recess at 8:31 p.m.
RECONVENE:
Mayor Drake reconvened the meeting at 9:00 p.m.
At the request of Mayor Drake, Scheiderich reported that the percentage of the
property owned by those individuals who expressed an objection to this proposed
vacation was 40.17%, assuming that these were all valid objections. He
reiterated that the statute required objections from more than 50% of the property
area within the affected area and those who objected did not constitute more than
the required 50% of the affected area.
There were no other questions or comments.
Mayor Drake closed the hearing.
Coun. Soth MOVED, SECONDED by Coun. Doyle, that Council approve AB
02202, SV 2002-0001, to Vacate a Portion of the Right-of-Way of SW Metz Street
and SW 124th Avenue and direct staff to prepare the ordinance for this vacation,
and that this motion be contingent upon the validation of the calculations with
regard to property ownership area and percentages.
Scheiderich advised that this determination would be included in the agenda bill
that would be submitted to the City Council for first reading of the ordinance.
Coun. Stanton stated that she would support the motion and noted that she had
observed vehicles for sale parked on SW Metz Street many times. She said this
was a good use of space to buffer established residential areas with either multi-
family or higher density single or detached homes.
Coun. Doyle said that he would support this motion for a variety of reasons. He
noted that there had never been any indication that the residents of the area
wanted to see SW 124th Avenue go through and this solved that issue. He noted
that the six feet on the SW Metz Street side would be put to good use, as
proposed, and it made sense to provide housing for one additional family. He
congratulated the individuals who have been involved in this worthwhile project.
Question called on the motion. Couns. Brzezinski, Doyle, Soth, Ruby and
Stanton voting AYE, the MOTION CARRIED unanimously. (5:0).
02203
Appeal of Chapter 50 (Procedures) Development Code Update (APP 2002-0004)
Grillo read a prepared statement defining the process that needed to be followed
for this hearing, including the various required disclosure statements (in record).
Grillo asked if there was anyone present who wanted to challenge the Mayor’s or
Councils’ right to hear the matter that evening.
There were no challenges.
Mayor Drake noted for the record that the Mayor voted only in the event of a tie
and since there were five councilors present, it was unlikely that he would vote.
Grillo asked if there were any Councilors who wished to abstain due to
impartiality.
There were none.
Grillo asked if there were any Councilors who received ex parte contacts, the
nature of such contacts and if the contacts impaired the Councilor’s impartiality or
ability to vote on the matter.
Coun. Stanton noted that there could be no ex parte contact on a legislative issue.
Grillo explained that although there was no ex parte contact on a legislative issue,
it was advisable for any members of the City Council to disclose and describe the
nature of any such contact. He noted that City Council members had the option
of discussing legislative issues with any individuals at any time.
Coun. Stanton said that she had multiple contacts regarding this issue over a
period of approximately nine months.
Mayor Drake said he discussed the proposed revisions with many individuals.
Coun. Ruby commented that he spoke with Catherine Arnold and NAC Chairman
Scott Winter regarding the proposed revisions to Chapter 50.
Coun. Doyle said that he had minimal interactions on this issue.
Grillo asked if anyone in the audience wished to challenge or object to the City
Council’s authority to hear this matter.
There were none.
Development Services Manager Steve Sparks offered to answer questions on the
staff report and noted that Irish Bunnell (consultant) was available for questions.
Coun. Brzezinski asked what issue staff was attempting to resolve by replacing
de novo with on-the-record appeals.
Sparks explained that the basic issue involved the fact that the City had the
Planning Commission and the Board of Design Review, both of which were
responsible for the review of different applications. He noted applications were
reviewed, a record established and a decision made at the initial public hearing
before these boards. He noted that a de novo appeal gave an applicant,
proponent or opponent a “second bite of the apple” before the City Council. He
emphasized that an on-the-record appeal would provide everyone with an equal
opportunity to testify, after which a decision would be made. He said if a
proponent or opponent felt that that the Planning Commission or Board of Design
Review had made an error in reaching their decision and filed an appeal, the City
Council would review the same information that was available to the original
decision-making body at the original hearing, in order to determine whether an
error had actually occurred.
Coun. Brzezinski noted that the proposed language included two exceptions. She
said she understood the first exception for procedural errors but asked for further
information on the second exception (Page 105 of the proposed text).
Sparks advised that she had referred to Section 50.70.7.B, which read “new
evidence material to the decision on the appeal exists or could not have been
present or represented to the decision-making authority.” He explained that this
indicated that something new had occurred, which was germane to the decision,
but could not have been presented at the initial hearing because it had not
occurred such as a landslide occurring after a project was considered.
Coun. Brzezinski referred to the recent appeal of the proposed bus maintenance
facility. She noted that new evidence was presented at that appeal and asked if
that happened at the Planning Commission meeting, how could the opponents
have time to respond to the new evidence.
Grillo clarified that the opponents of the bus facility had retained a firm to provide
an initial review and that may or may not have had an impact on the decision of
the Planning Commission. He noted that new evidence prepared by an opponent
after the initial hearing would not have been allowed.
Coun. Brzezinski noted she heard testimony at the appeal that was not in the
evidence from the original hearing.
Grillo agreed that the Council had received new material on a broad range of
factors, including transportation, odors, and toxicity. He pointed out that this new
testimony, under the draft presented by the Planning Commission, would not be
allowed. He emphasized that the only reason this new evidence was allowed for
consideration was because the applicant granted the City two extensions beyond
the original 120 days. He said that if these extensions had not been granted, the
appellants would have been very hard pressed to compile the new evidence and
present it to Council within the original 120-day deadline.
Sparks said this had not occurred on a regular basis. He noted that it would still
be necessary to comply with the original 120-day rule and making the best
possible decision based upon that evidence, which could be complicated.
Coun. Brzezinski asked how this was addressed by other jurisdictions, and
whether the jurisdictions that used de novo hearings for appeals were having
continuous issues with the 120-day deadline.
Grillo responded that while all communities were required to meet the 120-day
deadline, one had to consider the volume and technical difficulty of the types of
projects in the other communities. He said most communities would prefer more
public participation. He pointed out that those communities with a high volume of
activity participated in the most efficient form of hearing land use cases, which
often involved a hearings officer; and that while the public still participated, it did
not involve an elected group of individuals.
Coun. Stanton stated she thought applications were approved before they should
be approved and that the clock was started too early in the process. She said
that she would like to see a procedure that would not allow an application to be
deemed complete until it was actually complete.
Grillo expressed his appreciation of Coun. Stanton’s opinion and noted that some
individuals who submitted applications to the City believed that the City took too
long process; the staff enforced the Development Code to ensure that everything
required for an application had been submitted. He said once the staff accepted
that application and responded, the clock started in terms of what had to be done
to supplement the record.
Sparks explained that there were mandatory pre-application conferences to
review an application and identify to a proponent what they would need to submit
to the City in order to avoid any confusion.
Sparks noted that staff was hopeful that this would result in more complete
applications at the beginning. Once an application was deemed complete, staff
would not request additional materials, although they may request a check or an
additional set of plans, at which time the clock would start.
Coun. Stanton noted her dislike of “the clock” and that although the applicant had
the burden of proof, often it was not necessary for them to prove anything, and
citizens would find it necessary to appeal at the back end.
Grillo pointed out that under State law, staff was obligated to process an
application that an applicant had indicated was complete, whether staff felt it had
been completed or not. He noted that staff did not like the 120-day clock either.
Sparks noted that if an applicant submitted an application that staff did not
consider complete, it would probably result in a staff report recommending denial.
He noted that holding the record open for a period of at least seven days provided
an opportunity for individuals to respond to new information.
Coun. Stanton asked how anyone could respond after a decision was made.
Sparks explained that information was entered into the record for consideration by
the decision-making body. If the decision was already made, the information was
on the record, allowing the individual to file an appeal and participate in the appeal
process.
Coun. Stanton suggested that the hearing body could possibly review the new
information for reconsideration at the following meeting.
Sparks advised that the proposed Development Code did not include any such
provision for reconsideration.
Coun. Stanton confirmed with Sparks that the only reason to submit additional
information when the record was left open would be if an individual was prepared
to go through the appeal process.
Mayor Drake noted that the additional information would also be helpful in the
preparation of the final order.
Coun. Soth asked Grillo if he had noticed a significant difference between the
number of appeals filed within the jurisdictions that utilize a hearings officer in
comparison to the appeal process used by the City of Beaverton.
Grillo replied that the layman without a great deal of experience in government
procedures, would most likely prefer the current City process, with a hearing
before a board. He noted that citizens who spent a great deal of time participating
in local government issues would probably have the exact opposite opinion and
they would consider a hearings officer to be more efficient.
Pilliod explained that in the hearings before the Planning Commission and the
Board of Design Review, the Planning Commission was concerned that an
applicant or proponent, with greater access to funding, would be more likely to
appear at the hearing and provide evidence without any effective means of
responding to the evidence at the hearing. He noted that while there could be
difficulties in the long run due to the 120-day deadline, staff had inserted a
provision (Page 081, Paragraph 9), which provided that if an applicant submitted
documents in support of their application less than seven days prior to the
hearing, the hearing would be continued for seven days to allow the other parties
a reasonable opportunity to respond or rebut that evidence. He explained that the
decision would not be made at the hearing; it would be continued for seven days
for opponents to have the opportunity to respond. He clarified that if an opponent
submitted new evidence at a hearing, the practice in most jurisdictions was that if
an applicant was concerned that the contrary or conflicting evidence would
undermine the application, they would request an extension of the 120-day
deadline and an extension of the hearing. He observed that the applicant had the
greatest control of the clock. He added that the point was that what was good for
an applicant to submit late was now balanced with the opportunity for an opponent
to request an extension of seven days.
Coun. Stanton noted that there was no provision in Section 50.45.9 that indicated
that the clock would be extended for the seven days.
Pilliod emphasized that the clock was not extended for this seven days.
Coun. Stanton expressed concern that an applicant could potentially use this ploy
to make the clock run out.
Sparks explained that staff actually produced “timelines”, and that Facilities
Review was generally three to five days following completeness, with the public
hearing 45 days after completeness.
Coun. Doyle referred to Page 0819, and asked if an inexperienced individual
would know that the submittal of information just prior to the hearing would mean
an automatic extension of seven days.
Pilliod noted that the information was in the Development Code.
Sparks added that this information was also in the public notices.
Coun. Doyle referred to Page 104, No. 7, with regard to reopening the record, and
asked who would determine whether the record was reopened.
Pilliod replied that the Council would decide whether to reopen the record and the
proposed language provided an objective basis to make the decision.
Coun. Doyle asked how that would work.
Grillo used as an example that an appeal was received on an alleged error and
staff determined that the error had not been raised before the Board of Design
Review or Planning Commission. He said staff and applicant would come before
Council to submit brief arguments for Council determination concerning whether
the hearing should be reopened.
Pilliod commented that the language in Section 7 was discretionary; that the City
Council “may” reopen the record. He added that any appeal received near the
120-day deadline would most likely be denied, unless the applicant submitted a
request for an extension. He pointed out that reopening a hearing that late,
without an extension, would be risky; an applicant could not be compelled to
request an extension.
Coun. Doyle requested clarification of the motivation for this change.
Sparks explained that the major point was to uphold the importance of the
Planning Commission and Board of Design Review processes, as indicated in
the Municipal Code and Development Code. He emphasized that these boards
were the decision-making authority for certain land use actions within the City and
it was necessary for the public to become actively involved in the process.
Mayor Drake noted that there was some discussion indicating that the applicant
would bring in their “B Team” to address the lower board (Planning Commission
or Board of Design Review) and if they were not satisfied with the results, they
would show up with their “A Team” at their appeal at the City Council level. He
discussed the efforts of the Citizens Review Advisory Committee (CRAC) in
developing revisions to the Development Code to address the “A Team/B Team”
issue and emphasized that the Planning Commission and Board of Design
Review were responsible for making certain decisions. He observed that this
process was started eight years ago by CRAC and asked how long this code
amendment process had been ongoing.
Sparks advised Mayor Drake that while the code amendment process predated
his employment with the City of Beaverton, the most recent revision to the text
with CRAC began in December of 1998.
Coun. Brzezinski noted that there were some appeals, where Council was
informed that it had certain criteria on which to base its judgment and that it had
greater latitude than the Planning Commission or Board of Design Review with
regard to the ability to consider additional criteria. She expressed concern that
by limiting appeals to “on-the-record”, this might impose restrictions or limitations
on this latitude.
Sparks explained that in a quasi-judicial matter, the City Council would be subject
to only the approval criteria for that specific application.
Pilliod responded that the answer to Coun. Brzezinski’s question was on Page
104, No. 6, stating that “No issue may be raised on appeal to the City Council that
was not raised before the decision-making authority with sufficient specificity to
enable the decision-making authority and the parties to respond.” He explained
that Council would be reviewing a decision, rather than literally making a brand
new decision from a “blank slate record,” which was what a de novo hearing
seems to be in the City. He read “Issues that are not raised before the decision-
making body are deemed waived.” He noted that this meant that the scope of
review was limited to issues raised before either the Planning Commission or the
Board of Design Review and that the criteria involved a larger set of issues. He
said this resulted in a narrowing of those issues that were raised on the appeal,
which were the issues on which a decision was based.
Grillo pointed out that Coun. Brzezinski had requested clarification on whether the
Council had greater latitude than the Planning Commission or Board of Design
Review under the current process. He noted that this latitude was greater than
what was within the proposed draft revisions. He agreed with Sparks that the
criteria was specific to the application and Council could not make up new
criteria.
Coun. Soth stated that he participated in both types of hearings, when the City
Council had the option of determining which type of appeal would be allowed on a
case-by-case basis. He pointed out that then it was up to the appellant to provide
a transcribed verbatim record of the hearing and decision of either the Planning
Commission or Board of Design Review. He questioned whether it would be
considered sufficient to include the meeting minutes of either the Planning
Commission or Board of Design Review in order to provide the information
needed for an on-the-record proceeding.
Pilliod advised that under the proposed revisions, on Page 104, the minutes were
sufficient and became part of the record submitted to the City Council. He added
that an applicant or an appellant also had the option of preparing a certified and
verbatim transcript at his own expense.
Coun. Stanton asked if she represented a company on an application at the initial
hearing, could another representative of the same company testify on an appeal.
Grillo replied that a representative of the same company would be provided with
the opportunity to testify during the appeal process even though the individual had
not testified during the initial hearing.
Coun. Stanton stated that she was not comfortable with allowing an individual
who had not testified during an initial hearing to testify during an appeal.
Mayor Drake gave an example that David Kamin, who represented the Five
Oaks/Triple Creek NAC, testified at an original hearing but was unavailable during
an appeal. He concluded that another representative of this NAC, should have the
opportunity to testify.
Grillo agreed that another representative of the NAC would be allowed to testify in
the absence of David Kamin.
Coun. Ruby pointed out that these were both accepted models utilized by various
jurisdictions for handling appeals. He asked if information was available that
indicated that the League of Oregon Cities or any other organization had any
preference.
Sparks stated that staff had not solicited the opinion of the League of Oregon
Cities and it was not offered.
Grillo indicated that the 120-day clock issue was where the League and similar
organizations focused their major efforts.
Sparks pointed out that he had not noticed any information on this particular topic
in any of the major planning publications over the past five years.
Coun. Stanton asked again why this particular piece was brought forward.
Consultant Irish Bunnell advised Coun. Stanton that it had been his experience
that often the full effort was not made by an applicant at the original hearing before
the Planning Commission or Board of Design Review, but rather in front of the
City Council. He expressed his opinion that as long as a de novo hearing was
allowed before the City Council, including all new evidence, an applicant would not
consider the initial hearing to be a serious process. He said that the individuals
on the Planning Commission and Board of Design Review should feel that they
were making the decision on the best case presented. He added that people
realized they could present a new case before Council; that was the problem and
why this solution was recommended.
Mayor Drake commented that Mr. Kane, who was present this evening, was a
classic example. Although he was not involved with the CRAC process, and had
not testified in the original process, he took advantage of the appeal process.
Grillo pointed out that because of the 120-day issue, it was important to provide
the best evidentiary record possible at the initial board hearing. He added that any
decision-making body had a tendency to make a more appropriate decision
before midnight. He emphasized that when new evidence was not presented in a
timely manner, it was not possible for staff to provide the quality service that
should be available.
Coun. Stanton noted that this occurred at the Planning Commission and Board of
Design Review level.
Pilliod pointed out that the only solution to address this issue would be to continue
a hearing for a minimum of seven days, upon request.
Mayor Drake observed that the Bus Barn served as a classic example; a great
deal of the information was provided at the last minute, which made it extremely
difficult to review appropriately.
Coun. Stanton said she felt strongly about the need to participate in the process;
in the past information was not provided to the citizens in a timely manner.
Coun. Soth explained that the City Council delegated the Planning Commission
and the Board of Design Review with the authority and responsibility to take action
in these types of issues and that these decisions were final unless an appropriate
appeal was filed. He expressed his opinion that the “A” Team needed to address
either the Planning Commission or Board of Design Review at the original
hearing. He said that some type of restrictions should be applied to the current
appeal process.
Mayor Drake noted that Susan Cooke and Henry Kane were the appellants in this
case and that they would be allotted a total of fifteen minutes to testify.
APPELLANTS:
Susan Cook, Beaverton, stated that she had only received this information this
evening and asked that the record be left open for a period of at least seven days
to allow her an opportunity to review the document. She noted that the City of
Beaverton was renowned for its citizen involvement process, that the elimination
of the de novo option would not benefit anyone and that new information could
play an important role in making an informed decision. She said the Land Use
Board of Appeals (LUBA) provided an expensive and difficult option for a potential
appellant and that it also provided little opportunity for citizen involvement. She
expressed her opinion that citizen involvement was vital in City government,
urging the City Council to accept responsibility to those who elected them and
maintain the City’s leadership in land use. In conclusion, she requested copies of
all internal memorandums and e-mails with regard to the de novo portion of the
proposed Chapter 50 revisions and said that she would submit this request in
writing, if necessary.
Henry Kane, Beaverton, said that his 37-page statement contained a suggestion
that the Mayor and City Council direct the Planning Commission to eliminate the
sequential facts in the current City timelines to process applications under the
120-day statutory deadline. He said that he prepared a three-page affidavit
containing personal knowledge and that the Supreme Court had stated that an
affidavit that was not contradicted must be accepted as true.
Kane referred to his Exhibit 1, Page 27, which he said was a simple process for
appealing to the Planning Commission. He noted Exhibit 2 covered public
involvement for the Comprehensive Plan and emphasized that this was the law
and must be obeyed. He referred to Page 32, which addressed city wide public
involvement and observed that Coun. Stanton always appeared to represent the
City Council as a liaison at the meetings of the Committee for Citizen
Involvement. He pointed out that the CCI voted to support and retain de novo
hearings. He said that the 1200 members of the Metropolitan Homebuilders
Association should not be permitted to take away the rights of the citizens of
Beaverton. Concluding, he stated that this “scheme” did not conform, and asked
for additional time to submit written testimony, stating that he would provide this
information to staff by 4:55 p.m. on the following day.
Mayor Drake requested clarification regarding the additional information requested
by Cook. He advised her that a written request, through the Freedom of
Information Act, would be required and that she should submit this request either
to his office or the City Recorder. He noted there might be