BEAVERTON CITY COUNCIL REGULAR MEETING MINUTES MARCH 31, 2003 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, March 31, 2003, at 6:39 p.m. ROLL CALL: Present were Mayor Drake, Couns. Betty Bode, Dennis Doyle, Fred Ruby, Forrest Soth and Cathy Stanton.  Also present were Chief of Staff Linda Adlard, City Attorney Mark Pilliod, Finance Director Patrick O'Claire, Community Development Director Joe Grillo, Engineering Director Tom Ramisch, Operations/Maintenance Director Gary Brentano, Library Director Ed House, Police Chief David Bishop, Development Services Manager Steve Sparks, Senior Planner John Osterberg, Utilities Engineer David Winship and Deputy City Recorder Catherine Jansen. PRESENTATIONS: 03070 Presentation by Marci Hosier, Executive Director, Tualatin Valley Television (TVTV) Marci Hosier, Executive Director, Tualatin Valley Television (TVTV), explained TVTV managed the Public, Educational and Government (PEG) media access channels for this area.  She reviewed the services they provided and reported last quarter TVTV aired twelve new series and thirty-seven locally-produced programs, logged 759 hours of volunteer time, and had over 6,000 programmed hours.  She said it was estimated that 512 reservations would be received this quarter to use TVTV’s equipment and facilities.  She explained the majority of their funding was from franchise fees, with additional income raised from grants, sponsorships and production services for governments, non-profits and educational institutions.  She noted they were located in a new facility at the Beaverton Arts & Communications Magnet Academy and she reviewed their training program for the public.  She listed the programs that TVTV covered for Beaverton which included the City Council meetings, the Beaverton Chamber Safety Luncheon and the Beaverton Candidates Forum.  She noted TVTV was awarded a grant of $119,000 to install a civic studio in the Forrest C. Soth Council Chambers and reviewed the services available to the City.  She noted their program listings were available on the Web at www.yourtvtv.org. Mayor Drake thanked her for the presentation. Beaverton City Council Minutes – March 31, 2003 Page ² 03071 Presentation of Shields and Swearing-In of Four New Officers and Two New Sergeants to the Beaverton Police Department Police Chief David Bishop introduced and swore in the new sergeants and officers. Mayor Drake and Bishop presented the officers with their badges.  The new officers were: Mathew Groshong, Jason Perrizo, James Patrick and Kenneth Terry.  The sergeants promoted from within the Police Department were Jim Shumway and Terry Merritt.   CITIZEN COMMUNICATION: Reverend Ja West, Beaverton, spoke of a holocaust of white-American, heterosexual capitalist Christians occurring nation-wide and of a plot to destroy the country.  She said she was the founder of Saint United Missions of God and Christ and she hoped the City would help her find a place to purchase to use as a house for the Lord.   COUNCIL ITEMS: Coun. Soth expressed his appreciation to everyone for their sympathy, encouragement and good wishes during his recent surgery.   STAFF ITEMS: Chief of Staff Linda Adlard noted there was a legislative hearing tomorrow on the Photo Red Light Bill.  She said it was Senator Starr’s bill that was introduced with unlimited intersections and a four second yellow light mandatory.  She said it now was amended to a limitation of six intersections for Beaverton and other cities in that category and twelve for Portland with the adoption of the State transportation standards for yellow lights.  She said staff would be in Salem tomorrow and would ask for eight intersections for Beaverton at that hearing.    CONSENT AGENDA: Coun.  Doyle MOVED, SECONDED by Coun. Stanton, that the Consent Agenda be approved as follows: Minutes of Regular Meeting of March 3, 2003 03072 Authorize the Mayor to Sign the Joint Water Commission – Hillsboro, Forest Grove, Beaverton and Tualatin Valley Water District Water Service Agreement 03073 Final Order Denying Appeal and Upholding the Board of Design Review’s Approval of Krispy Kreme Doughnuts at NW Cornell Road; BDR 2002-0148, APP 2003-0005 Contract Review Board: 03074 Consultant Contract Award – Hydrogeological Operational Services for Groundwater Aquifer Storage and Recovery (ASR) Wells  Beaverton City Council Minutes – March 31, 2003 Page ³ Coun. Stanton thanked staff for answering her questions.  She said there was one minor correction to the minutes that she gave to the Deputy City Recorder. Couns. Doyle and Ruby said they would abstain from voting on the minutes as they were not at that meeting. Question called on the motion.  Couns. Bode, Doyle, Soth, Ruby and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)  Couns. Doyle and Ruby abstained from voting on minutes of March 3, 2003. PUBLIC HEARING: 03075 APP 2002-0016, APP 2002-0017, APP 2002-0018 Salem Communications Appeal  Community Development Director Joe Grillo read a prepared statement defining the process to be followed for the 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. 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 had received any exparte contacts, the nature of such contacts and whether the contact had impaired the Councilor’s impartiality or ability to vote on the matter. Coun. Soth stated he did not have any exparte contact; he had participated in the Clean Water Services Task Force that studied the drainage basins for eastern Washington County.  He said he was familiar with the Oregon Episcopal School (OES) marshes and the surrounding area from that study.   Coun. Stanton stated she did not have any exparte contact but her boys had played sports on those fields in the past.   Coun. Doyle said he visited the site but he did not have any contact to disclose.   Coun. Ruby stated his familiarity was the same as Coun. Stanton’s. Mayor Drake said he visited the site yesterday; but no one had contacted him from either side of the issue.   Coun. Bode stated she did not have any contacts either. Grillo asked if there was anyone present who wished to challenge the Council’s authority to hear the matter. Beaverton City Council Minutes – March 31, 2003 Page 4 There were no challenges. Development Services Manager Steven Sparks reviewed the three appeals from Salem Communications and the history of the applications.  He noted since the December, 2001, submittal, the proposal had been revised twice by the applicant.  He summarized the proposal (in record) and noted the Planning Commission denied all three applications based on recommendations in the October, 2002, staff report.  He explained the Commission made the following decisions:  1) The Conditional Use Permit application was correct although the use was not compatible with surrounding uses based on the potential for Radio Frequency Interference (RFI) in the area;  2) The Conditional Use for height, evidence was not submitted that demonstrated the visual impacts of the 199-foot tower were mitigated to the degree feasible; 3)  The Tree Preservation Plan, evidence was not submitted that demonstrated the trees to be removed within the significant natural resource area and the significant tree grove were potentially hazardous.   Sparks explained the Planning Director appealed the three Planning Commission decisions in December, 2002, and since the appeal Salem Communications submitted a second revision to the proposed plan.  He advised the current proposal was for a 196-foot tower, with an underground wire radius of 100 feet from the tower base (originally submitted at 199 feet) and the number of trees to be removed was reduced from 48 to 13.  He noted the trees to be removed were in the significant natural resource area but not in the significant tree grove.  He explained the March 18, 2003, staff report reflected staff review of the revised proposal; staff found that each of the Planning Commission’s reasons for denial were satisfactorily addressed by the applicant’s second revised proposal.  He said staff recommended approval of appeals on the following basis: 1) The proposed use was a conditionally permitted use; 2) RFI was not an issue of compatibility and the FCC had sole discretion on matters concerning RFI; and 3) The proposed use had not adversely impacted the significant riparian corridor or the wetlands on the site (evidenced by letters from CWS, pgs. 236- 237; Division of State Lands, pg. 289; and Army Corps of Engineers Permit, pgs. 583- 607).  Concerning the CUP for height, he said the applicant submitted evidence that indicated that 196 feet was the minimum height required to operate within its FCC license.  He said the applicant proposed removing fewer trees and planting more trees.  He said these actions adequately mitigated visual impacts to the degree feasible.  He said the applicant submitted evidence that the thirteen trees to be removed were potentially hazardous.  He noted staff recommended approval of all three appeals based on the reasons stated at this hearing and facts and evidence in the record.   Senior Planner John Osterberg explained that prior to the hearing the applicant submitted an additional exhibit, which he distributed to Council.  He said it was a list of names, addresses and responses to letters that were mailed to surrounding neighbors concerning radio frequency interference.  He noted RFI was not a subject for this hearing because it was not a criterion for review; but since the applicant submitted it, staff distributed it to Council.   Osterberg noted for the record an e-mail submitted by Suzanne DeStephano opposed to the proposal. Beaverton City Council Minutes – March 31, 2003 Page 5 Mayor Drake asked the City Attorney if the information on the RFI should be accepted into the record since it was not a criterion under consideration. City Attorney Mark Pilliod advised the Council should not consider the preemptive issues, although it was considered by the Planning Commission and influenced their decision which led to the appeal.  He said the preemptive issue was appropriate, for the applicant needed to demonstrate he had addressed RFI issues, but it was not a matter for the Council to judge if the applicant complied with the FCC license.   Coun. Bode asked for a description of the hazardous trees.   Osterberg explained that at the Planning Commission’s hearing for the Tree Preservation Plan, staff found based on a letter from the arborist Mr. Halstead, that the trees were not hazardous.  He said that with the revised application Halstead submitted a revised letter (Exhibit 3.20) that said he was not aware people walked through the site by the trees and due to insect infestation, the trees were in danger of falling.   He said the trees could be hazardous due to their close proximity to pedestrian walkways.  He said the arborist based his original letter on the belief that pedestrians did not walk in that area.   Coun. Soth asked if the borers were the lilac borers. Osterberg noted the applicant could address the insect issue.  He confirmed there was an established insect infestation problem.    APPLICANT: Mark Whitlow, Perkins Coie, 1211 SW Fifth Avenue, No. 1500, Portland, Attorney representing  Salem Communications. He thanked staff for a well written and thorough report.  He explained that as they revised the proposal, they balanced concerns about the environment, aesthetics and view.  He said the tower would be added to boost the night-time signal and improve the quality of the radio broadcast signal so it would not interfere with other stations.  He said they also wanted to expand the area of the broadcast signal to pickup additional listeners.  He explained that KPDQ was a religious broadcast station and many people found it to be instrumental, educational and a convenient way to exercise their religion.  He noted there were several KPDQ listeners in the audience.  He explained that after the Planning Commission hearing the applicant went into the community to address the concerns voiced by the neighbors.  He said the applicant sent a letter (pg. 574 of the record) to the residents offering to fix their RFI problems.  He noted they talked with local school officials about the tower; how long the tower had been there (since 1947) and how it operated.  He said they spoke with the residents and asked them what they wanted for landscaping around the tower.      Whitlow reviewed the revised landscaping plan, Exhibits 3.26 and 3.27, in detail (in record).  He noted design review was the time to talk about landscaping details.  He stated they spoke with the Citizens for Environmentally Responsible Development, Mr. Andrea, The Fans of Fanno Creek and Dan Haggerty.  He noted they were concerned with what would happen during the construction process.  He explained lowering the height of the tower resulted in a reduction of the wetland impact area from .61 acres to Beaverton City Council Minutes – March 31, 2003 Page 6 .05 acres (92%).  He added that the vegetation impact area was reduced from 1.55 acres to 0.36 acres (76%).  He said the reduction moved the project out of the significant tree grove and the only point of impact left would be the wire connecting the two towers.   Rob Douglas, Vice President Real Estate, Salem Communications, said when they started this project they gave easements to CWS to cleanup and replant Fanno Creek.    He said they had an agreement with Mountclair School to construct a soft trail access to the natural habitat.  He said they granted these items as a good corporate citizen.  He said the second tower was important for it could reach a half million more people.   Whitlow explained that Salem Communications was not fully aware of the extent that people used the site until the project got underway.  He said this was okay with the applicant but the willow grove was decayed and needed attention.  Coun. Stanton noted the proposed tower did not have lights or a guy wire.  She asked about the FAA requirements for lights.   Douglas explained the FAA standard was a tower below 200 feet was not required to be  lit or painted.     Coun. Stanton stated that creating the soft trail was an excellent idea. Coun. Soth referred to Exhibit 3.26, and asked what the distance was from the property line to the new tower in all four directions. Douglas replied that from the east and north it was approximately 250 feet; the area to the south was about 200 feet and to the west it was over 500 feet.   Coun. Soth noted he was curious about the visual impact because the further away an object was, the less intrusive it appeared.   Douglas explained that this tower was  “state-of-the-art”  60 inches at the base and 24 inches at the top.  He said the lattice towers blended in well and would not be seen at a half-mile distance.   Coun. Soth noted the proposed landscaping indicated an addition of forty red cedar trees that would enhance the vegetation in the area and would provide more screening to the north. Douglas replied that was correct; they would be adding perimeter screening with the trees and landscaping around the base of the towers.     Whitlow referred to Exhibit 3.27 noting the photographs showed the views around the northern edge.  He said the additional plantings would help block the views of the existing tower and in almost every view there would be large existing trees that blocked the new tower. Coun. Soth asked if the existing vegetation was deciduous or evergreen. Beaverton City Council Minutes – March 31, 2003 Page 7 Douglas replied it currently was a mixture of both; CWS also had started planting new trees.     Coun. Soth asked for the approximate distance from the rear line of the site north to the nearest residential home on Exhibit 3.26. Whitlow said that was the backyard of the homes; but he did not know the lot depths.   Pilliod noted the setbacks from the property boundaries were on page 93.  He confirmed these were the radio tower setbacks.   Coun. Ruby asked for verification that the second tower would be the only way to enhance the nighttime broadcast signal. John B. Ehde, Vice President Engineering, Salem Communications, Camarillo, California, explained the Federal Communications Commission (FCC) had stringent guidelines on signal propagation.  He said KPDQ was licensed at 1,000 watts during the day and 500 watts at night.  He said the signal traveled differently during the day than at night; at night it skipped off the ionosphere and created interference.  He said the added tower would allow them to expand and redirect the signal to provide better protection. He said the extra power would allow them to increase to 900 watts which would be closer to their daytime coverage.       Coun. Doyle asked Douglas if he had done similar projects.   Douglas explained he currently had eight projects going on around the country; all involved tearing down an old tower and building a new one.  He said this was the only project where there was an existing tower with an addition.  He said it would be going from a non-directional signal to a directional signal at night; the purpose was to maintain the audience base in the evening. Coun. Stanton noted the form letter (pg. 574) to residents asking them to respond if they experienced radio interference problems.  She said she appreciated the follow- through and was glad to see how many residents had responded.     Douglas said they were committed to correcting the problems.  Coun. Stanton asked if residents called the FCC to complain about the tower. Douglas replied they typically called the radio station.  Ehde said they received letters from the FCC about complaints concerning interference and asked the station to correct the problem.  He said the station corrected the problem and notified the FCC.    PUBLIC AGENCIES: Nora Curtis, Engineering Division Manager and Douglas Gates, Project Engineer, OES Marsh Enhancement Project, represented Clean Water Services.  She explained if this project was approved, it was required to follow the City’s and CWS’s regulations for Beaverton City Council Minutes – March 31, 2003 Page 8 erosion control and sensitive-area impacts.  She stated CWS was neutral concerning the proposed project.  She added CWS was interested in the implementation of the tower installation and how it could coordinate with the Marsh Enhancement Project.  Curtis explained the stream enhancement project would improve the local conditions of Fanno Creek.  She said construction was scheduled to begin in the early summer of 2003.   Curtis explained CWS coordinated its design efforts with affected property owners, especially Salem Communications.  She said CWS had an agreement with Salem Communications that identified the work to be done and coordinated efforts in areas where the two projects overlapped.  She said if the second tower was approved, the ideal construction time would be the summer of 2003; this would allow grading, revegetation and ground wire installation in the same construction and planting season.  She noted coordinated construction activities and schedules would minimize costs for both projects and avoid future disturbance of newly enhanced areas.    Coun. Soth asked about the construction window.    Curtis replied that the window was from July 1 to September 30; any work that would be done in the wetland area had to be done then or they would lose that window for the year.   RECESS:   Mayor Drake called for a brief recess at 8:14 p.m. RECONVENED:   Mayor Drake reconvened the meeting at 8:25 p.m. TESTIMONY IN SUPPORT: Maureen Wedge, Lake Oswego, stated she supported KPDQ; she felt it would be an asset to the community.  She noted over 100 million people had died in the 20th Century for what they believed and free speech could be controlled by making it impossible to find a place for radio and television towers.  She said every effort should be made to accommodate free speech, and after listening to staff presentations and Salem Communications, she felt that was being done.  She said it would be a plus to the environment in that area.     Brad Christiansen, Lake Oswego, said he represented KPDQ listeners.  He read a letter from Michael Holsgang, a Beaverton area resident that was in response to a letter sent by Michael Andrea of Heller Ehrman.  He said the letter from Mr. Holsgang spoke about the resources that KPDQ provided to people in the community, and strongly supported KPDQ and the expansion of its audience.  He said he appreciated the environmental concerns, but the goal was to come to a compromise and understanding of preservation, business needs and desires.  He said there continued to be a need in Oregon for business growth and development.   TESTIMONY IN OPPOSTION: Beaverton City Council Minutes – March 31, 2003 Page 9 Charlie Haugh, Beaverton, Willowmere resident, said he bought his house six years ago because of the wetlands.  He said the purpose of the height limit was to limit the visual impairment from any building, particularly in a resource area.  He noted the vegetation screened the first 30 feet of the tower; not the remaining 166 feet.  He said the project diminished his property value and asked that Council reconsider the staff recommendation.   Coun. Soth asked Haugh if he had any appraisals that supported his claim of diminished property value.   Haugh said he did not have an appraisal but he had worked in property development for fifteen years and had a lot of experience in this field.    Coun. Bode asked Haugh when he purchased his home if he could see the first tower. Haugh responded that he could see the tower.   Jeff Kleinman, Portland, Friends of Mountclair Marsh, said the Friends were opposed to the appeal and asked that the record be held open for seven days.  He said the application was substantially changed from the previous application and a new application needed to be filed and heard under current applicable criteria.  He stated under Code Section 20.05.15.2.B conditional uses in a residential neighborhood were for utility substations and related facilities.  He stated this was not a utility, not a substation, not a utility substation nor a related facility.  He referred to Code Chapter 90 that defined a utility as infrastructure that was primarily underground.  He said the definitions did not fit this use and he thought the Planning Commission relied on a 1996 interpretation that dealt with public not private utilities. Kleinman said they also believed there were Code violations.  He said they disagreed that the issue of RFI should not be before Council and it was the burden of the applicant to prove RFI was pre-empted.  He read from the Federal Communications Act, Section 302A, “In addition to any other remedy authorized by law” and said from this they believed the compatibility requirements for conditional uses included RFI issues.  He noted the Comprehensive Plan Residential Policy, Section 3.4.3.B, provided that all on-and-off-site improvements in residential areas should add to the character and quality of the areas.  He said there wasn’t any evidence this project supported that.  He suggested as an alternative adding the second tower to the first, to make a single tower.   Coun. Stanton asked him to clarify his quote.  Kleinman repeated the quote and said during the record-open period, they could provide a copy of the entire section for review. Coun. Doyle asked if he had submitted written testimony.   Kleinman said he had not for he was involved late in the process. He said he intended to submit his material in the record-open period. Beaverton City Council Minutes – March 31, 2003 Page 10 Marilyn Durkin, Portland, Willowmere resident, said she sold residential real estate for fifteen years and knew house values were affected by their proximity to towers.  She said she had sales fail due to research about the  towers.  She said she understood the Council supported collocations (attachment of other features to towers, such as satellite dishes) and asked for reassurance that would not happen in this case.  She asked that a local FCC number be provided to report RFI problems.  She said she received the letter from Salem Communications concerning reporting problems, but it arrived on the day it was to be returned, so she had not contacted them.  She asked the supporters of the project if they wanted a tower in their back yard.  Mayor Drake explained to Durkin that one Council could not bind another Council on a commitment.   He suggested the applicant could provide her with the number for the FCC. Coun. Bode confirmed Durkin sold real estate for 15 years and asked when she bought her house.    Durkin replied she bought the house in 1998 and the tower was there.  She added that two years ago they added an addition to the house and had to go through many hoops through the County, though her house was not as near to the wetlands as this project.  She added that the wetlands issues were County and State issues also. Coun. Soth asked Durkin if she would be satisfied if the applicant was required to give the residents the name and local number of someone from Salem Communications to whom they could report RFI problems.   Durkin said that was reasonable and she felt each tower site should have the FCC number posted on it.    Coun. Bode noted one of the pictures of the tower site showed the number was posted.   Durkin stated she had not been to the tower site for eight to nine years.   Coun. Stanton asked Durkin in what other areas did she sell property and what types of towers were located in those areas.   Durkin said she was speaking about the West Hills area. Coun. Stanton asked for the engineer’s comment during rebuttal, on whether or not