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 a cost associated with

this request and that she appeared to want information that dated back

approximately four years.  

Cook asked if the cost of the additional information could be included in the cost

of the appeal.  ($600.00)

Mayor Drake noted there was a great deal of information in the record.  He noted

the cost for the additional request was not included in the appeal.

Cook said that she felt some information was missing and she was interested in

the e-mails between members of the city staff.

Mayor Drake advised Cook that staff would respond appropriately as soon as the

request was received.

At the request of Mayor Drake, Pilliod noted that Kane’s request for additional time

was up to the discretion of the City Council.  

Coun. Stanton responded to Kane’s comment with regard to Goal 1 and

developing a citizen involvement program to ensure citizens are involved with all

phases of the planning process.  She emphasized that Goal 1 addressed

specifically the development and updating of comprehensive plans only and it had

nothing to do with individual quasi-judicial land uses.  

Coun. Soth requested clarification from Ms. Cook concerning a reference to new

evidence.

Cook stated that in her experience with the Planning Commission, there was an

incident involving a document that had been omitted and not submitted by staff. 

She said she was certain that this had not been deliberate, but unfortunately this

document contained important information.  She explained that this happened

because people were ignorant of land use issues and were not aware of what

information was available to them.

Coun. Soth questioned Cook’s reference to the lack of notice.  

Cook said that she did not recall making any comment with regard to lack of

notice.  She stated that although the City Council was familiar with documents

such as Goal 1, the general public was very uneducated with regard to these

issues.  She pointed out that she would like to eliminate some of the problems

involving land use, including the 120-day deadline.

Coun. Soth asked Ms. Cook if she was a member of her NAC.

Cook replied that she was a member of the NAC and always reviewed the

information she received with regard to land use issues.  She said she felt the

issues were confusing to the general public.

Coun. Soth referred to Kane’s Exhibit 2, Page 33, and asked for clarification with

regard to public involvement in the decision-making process.  He observed that

the exhibit provided a detailed outline of the opportunities available to the citizens,

including meetings of the City Council, Planning Commission, Traffic

Commission, Board of Design Review, Historic Resource Review Committee,

and Facilities Review Committee.  He stated that it was inappropriate for Kane to

insinuate that there was no public involvement.  He added that in Kane’s

suggestions to shorten the 120-day requirement, he had also failed to consider all

of the required time frames for public notices.

Kane added that limiting each speaker to five minutes on the Planning

Commission level was not very helpful; and that complicated and technical

issues, such as those involving Aspen Woods and the Bus Barn required lengthy

input.

Coun. Soth stressed that that was the reason the “A Team” should testify at the

Planning Commission or Board of Design Review.  

Kane said it was very difficult for citizens to go through the appeal process and

many did not wish to fight city hall.  

Mayor Drake advised Cook that he was appreciative of her opinion and testimony,

adding that she had been very consistent with regard to the de novo hearing

issue.  He mentioned that some of the information she had requested had been

obtained by Kane either Wednesday or Thursday of the previous week, adding

that staff had contacted her before 9:00 a.m. today and offered to deliver the

information to her home. 

Cook agreed that staff had offered to deliver the requested information and that

while she appreciated the effort; she was not going to be home.  She emphasized

that she did not blame staff in any way; her point was that sometimes things

happen that no one can predict or prevent and that apparently Kane had assumed

that she had also obtained the information.

Coun. Brzezinski advised Cook that she remembered the document she had

referred to that had been left out of the record with regard to the Hagen Project.

She noted that this had provided an example involving a procedural error that

prejudiced the rights of the appealing party, which would have provided a

legitimate reason to reopen the record.

Cook thanked her for the clarification.  

Coun. Doyle referred to the “A Team/B Team” issue and said he felt that any

individual who was able to attend a hearing of the City Council should have also

been able to find the opportunity to attend the original hearing of either the

Planning Commission or the Board of Design Review.  He wondered if they did

not attend the initial hearing because they knew they could go to the Council. 

Cook advised that in her experience, her neighborhood had participated in the

process to the best of their ability.  She said that they had believed in what they

were doing and that they could make a difference and they went in with “no holds

barred.”  She emphasized that she had never experienced the concept referred to

as “A Team/B Team” from a neighborhood group.    

RECESS:

Mayor Drake called for a brief recess at 10:45 p.m.

RECONVENE:

Mayor Drake reconvened the meeting at 11:00 p.m.

Mayor Drake observed that each member of the public would be allowed five

minutes in which to testify.

Jack Franklin, Beaverton, stated that in an effort to obtain all relevant facts and

due to the constant struggle to acquire adequate funding, citizen groups were

often eliminated from the process before they became mobilized. He explained

that for Type 2 applications, it would appear to make sense to have only one

appeal to either the Planning Commission or the Board of Design Review, adding

that either of these could be appealed to LUBA.  He emphasized that for Type 3

applications, it was necessary to keep the option open to allow for a de novo

hearing on an appeal, adding that rarely were all of the details with regard to an

application available until there was a hearing before a formal decision-making

body.

Franklin said that the additional time and expense involved in a de novo hearing

was justified by reducing the potential harm to citizen involvement and the City. 

He said that if de novo appeal hearings were eliminated, most citizens would say,

“What’s the use?  I have this new information, and now the City of Beaverton

does not want to hear about it.  This City does not care about their citizen

concerns.”  He said he understood there were issues with the 120-day rule, but

the City had dealt with it in the past and not every citizen understood the

idiosyncrasies of the Development Code or the process.  He explained that a de

novo process had a tendency to keep the testimony more factual, as the

audience realized that half-truths or deceptive testimony could be rebutted at a

later hearing on appeal.

Coun. Doyle referred to Franklin’s statement that the de novo hearing had the

tendency to keep testimony factual and asked whether this could also be

accomplished at the original hearing, rather than on appeal.  

Franklin stated that this was not necessarily possible because opponents were

not provided with a rebuttal process.  

Coun. Soth asked if Franklin was insinuating that members of the public would

not attend an original hearing if a de novo appeal were not an option.  

Franklin clarified that the public’s lives do not revolve around what occurs at City

Hall; often members of the public were out of town or had other obligations.  

Rachel Nettleton, Aloha, stated that because the Five Oaks/Triple Creek NAC

was very serious about its responsibility, they had a website to provide this

information to members of the NAC.  She agreed with Franklin that often

information was not available in time to take necessary action and that some

projects were not presented at the NAC meetings, so the residents did not know

what was happening.  She emphasized the importance of providing the public

with the opportunity to express their opinion and expressed her support of the de

novo hearing option on appeal.

David Kamin, Beaverton, stated that the de novo hearing on appeal served to

promote public involvement that was an asset to both the public and the City.  He

pointed out that the NAC’s serve on a volunteer basis and do not have a great

deal of funding and that persistence was expensive.  He referred to statements

regarding new information that was not received in a timely manner.  

Kamin noted that in the Bus Barn hearing the School District was asked in

February to supply input data from their air quality report which was not received

until late May.  He said that was why the Council did not receive it in their packet

because the NAC did not have time to run it through the model.  He noted that this

was a situation in which one party deliberately withheld information required by an

opposing party, which was an additional reason to allow de novo appeal hearings 

Coun. Soth clarified that while the air quality issue had been introduced at the

Planning Commission hearing, the NAC did not have all of their ducks in a row at

that time to address this issue and had relied upon the time between the

Commission hearing and the appeal hearing to gather the evidence.  

Kamin replied that in February 2002, Hal Oien, on behalf of the Concerned

Citizens of Beaverton (CCB) had requested the input data from the Beaverton

School District’s air quality expert.  He said they did not get it until late May 2002,

following several telephone calls, letters and e-mails.  He said if they had gotten it

back in February, they could have made a presentation to the Board of Design

Review.  He said he felt the information had been deliberately withheld.

Coun. Brzezinski asked if this was an example of an issue that would have been

allowed and that this would have qualified under Condition “B” on Page 105; since

the CCB had needed and requested the applicant’s information in a timely

manner but had not received it until after the hearing.

Pilliod pointed out that this was with the assumption that the requested

information was in the possession of the Beaverton School District.  He clarified

that the expert hired by the School District had this information and that assuming

that the data had been furnished to the School District; it was feasible that they

could have fulfilled the request of the CCB.  

Sparks explained that because staff had not required the minutia of detail

pertaining to the air quality that had been requested by Kamin, it was not part of

the record.  He further clarified that in terms of making that request, because the

information involved a private party, the applicant was not obligated to provide that

information to the City.  

Pilliod stated that “all documents in evidence relied upon by the applicant shall be

submitted to the City.”  He added that it would ultimately be up to the discretion of

the City Council to determine whether or not this failure to submit this information

within the requested time line constituted procedural error, and if it did, some relief

should be provided. 

Catherine Arnold, Beaverton, stated that she did not believe in a carte blanche de

novo but that she had concerns that evidence get to the table.  She was primarily

concerned about late changes that might alter an application but not substantially

enough so that the Planning Director could call it a new application.  

Arnold pointed out that seven days was not adequate time in which to retain an

expert to take any meaningful action and that she would rather see a continuance

of the initial hearing.  She noted that her review of the situation basically clarified

two issues, as follows:  1) Citizens who appeal usually lose; 2) Regardless of the

outcome tonight, citizens need to understand the process more clearly.  She

noted that the Planning Commission vote on this issue had been extremely close

(3:2), and that those who voted “nay” had been concerned with the fairness issue

and late evidence.  

Arnold pointed out that staff’s proposal ranged from the most open de novo

possible to as closed as possible.  She mentioned that a procedural error did not

actually occur very frequently.  She added that if an applicant submitted an

appropriate proposal and staff recommended approval, the majority of those

applications should be approved.  She felt if there was a compelling reason to

take a second look, the City might need a wider range of options than going from

one extreme to the other.

Marv Doty, Beaverton, said he wanted to discuss “the rules of the game” and that

in the 34 years he had lived here, he was involved in numerous land use efforts. 

He expressed his opinion that the City of Beaverton was an outstanding operation

and that the City Council was doing a great job.  He stated that it is important to

focus on the criteria of the developments and attempt to acquire necessary

information as quickly as possible.  He emphasized the importance of considering

the livability and compatibility of these proposed developments as well.  He

mentioned that property values, safety and health were all major issues.   He

expressed his respect for the Planning Commission, noting that he had

participated in many of their applications.  He expressed his opposition to

diminishing the authority of either the Planning Commission or the Board of

Design Review.  He said that both of these boards should have more strength

and latitude, and that the appeal somewhat diminishes their capability at times. 

He complimented Councilors for their perceptive questions with regard to this

matter.  He suggested that there should be a facility for these boards to review

issues or points affecting the compatibility of a development adjacent to

community properties.  He emphasized that citizens should never be denied the

ability to provide pertinent facts before the appropriate boards and that special

conditions might prevent a citizen from presenting these facts in a timely manner. 

He asked that Council evaluate a limited option for credible and new information to

be considered, adding that the door should not be permanently closed due to the

closure of a hearing.

Coun. Soth asked for Arnold and Doty opinion’s regarding the option where

Council determined whether a hearing would be on-the-record or de novo.  

Arnold stated that most appeals by individuals other than the applicant were a

lose/lose situations; it would cost a developer more time and money, and in most

cases the citizen would lose.  She said she would prefer that the information all

be presented at the first table.  She pointed out that she was not in favor of de

novo hearings because while it provided more citizen participation, it was not

necessarily more effective participation.  She favored putting the onus on the

citizen to get full information at the beginning.

Doty stated that at the Planning Commission’s hearings on this issue, Pilliod had

presented some excellent ideas, including the possibility of a certain facility that

would provide an extension for special information.  He asked that power not be

taken away from the Planning Commission or the Board of Design Review.  He

emphasized that both bodies need to have the opportunity to hear and review

pertinent information.  

Doty noted that citizens possess neither the power nor the strength to bring these

important issues to the appropriate hearings board in a timely manner.  He

stressed that citizens need to be educated on how to gather and present

information in a timely manner, and that some latitude should be given to help

them if needed.

Coun. Soth pointed out that these actions often extended the procedure to the

point where the 120-day deadline became an issue.

Doty explained that he felt the limited option should be very limited.

Arnold mentioned that Grillo was correct with regard to the extension concerning

the Bus Barn and that it was instrumental in allowing individuals to bring additional

evidence to the table.  She said she had reviewed the cases over the past three

years, and that appeals by non-applicants had not been reversed, with the

exception of Aspen Woods and Fantasy Video, both of which occurred within the

120-day deadline.  

Jim Persey, Beaverton, said that he was on the Code Review Advisory

Committee and that the homebuilders did not get everything they wanted as Kane

indicated.  He noted that the entire procedure included numerous compromises

and he felt it was very effective.  He stated he was not in agreement with the de

novo change.  He briefly discussed the appeal process, noting his support for de

novo and expressed his appreciation for the opportunity to discuss these issues. 

Andrew Rapp, Beaverton, pointed out that most citizens who testify for the first

time were not familiar with the rules of the game and that he was offended by the

City’s insinuation that the citizens deliberately do not make their best efforts on

their first attempt.  He emphasized that the only benefit of an on-the-record

hearing was that it made the job of the decision-making body extremely easy.  He

said he did not hear the Planning Commission or Board of Design Review

complaining of having to deal with new information; he said that they dealt with it

and did not seem to have a problem.  He discussed the benefits of de novo

appeals, expressing his opinion that more information was always better and

allowed for a better decision.  He said that an on-the-record appeal would mean 

“one strike and you are out.”   

Bob Tenner, Beaverton, noted that some of these issues were discussed at the

CCI Meeting and that while CCI had voted 10:2 in favor of this proposal, he had

personally voted “nay.”  He said he was a member of the Planning Commission

for seven years and that as a Planning Commissioner he would not be in favor of 

having de novo appeals.  

Tenner explained that that the emphasis should be on the Planning Commission

or the Board of Design Review having all of the evidence and that the “A Team/ B

Team” should be eliminated.  In conclusion, he stated that it should be up to the

developer and the public to submit all of their evidence at that time.  

Tenner repeated he did not favor de novo but wondered if a middle ground could

be reached.

Coun. Soth constructed a hypothetical example, where a project had gone

through the neighborhood meeting, the application process was deemed

complete, and the hearing process had begun.  He asked Tenner his opinion on

the possibility of providing for a mandatory extension of one week for a hearing at

the Planning Commission/Board of Design Review level, to allow new evidence to

be presented. 

Tenner stated that he would favor such an option.  He emphasized that the final

position presented by an applicant was not necessarily what had been presented

at the Neighborhood Meeting and expressing his opinion that there was often a

great deal of discrepancy between the two presentations.  He noted that the

neighborhood meeting was a trial intended to get the voice of the neighbors at the

beginning of the process.  

Mayor Drake noted that Richard Pogue expressed his support of Susan Cook’s

position on his testimony card; but he was not present to testify.

Ernie Platt, Lake Oswego, stated that he represented the Home Builder’s

Association.  He said he served on the CRAC Committee and objected to Kane’s

comment insinuating that this was a “stacked committee” and that he was the

sole member of the development community to serve on CRAC.  He emphasized

that there was more than an adequate opportunity for any concerned individual to

learn of a pending application and determine what that particular application

entailed.  He noted that Type 3 applications required a neighborhood meeting and

posting of the property, along with staff review and hearings.  He said that

maintaining the de novo hearing diminished the importance of the Planning

Commission and Board of Design Review and their ability to make meaningful

decisions.  He noted that in his experience, the larger, busier cities use hearings

officers and on-the-record appeals; smaller cities with less business have de

novo hearings before Council.  He stated that on-the-records hearings worked

fine and expressed his objection to the “A Team/B Team” concept, noting that it

was important to present the best case at the first hearing.   

Coun. Soth asked Platt if he felt that the requirement for mailed notices within 500

feet of a proposed development, along with the neighborhood meetings, was

adequate to notify the public of any potential development in advance.

Platt stated that those notices, in conjunction with the other required postings and

meetings, sufficiently notified the public of potential development.

Vlad Voytilla, Beaverton, Planning Commission Chair, said that his greatest

concern was that the de novo process diminished the authority of the Planning

Commission and Board of Design Review.  He emphasized that both of these

boards were comprised of volunteers and it was difficult to recruit knowledgeable

volunteers.  

Voytilla said that diminishing this authority would make it even more difficult to find

qualified individuals that would be willing to serve in these positions. 

Coun. Stanton asked Voytilla if he thought with an on-the-record appeal process,

that the Planning Commission would be willing to demand a mandatory

continuance including an extension of the 120-day deadline or deny an application

if necessary.

Voytilla stated that it was relatively easy to determine what information was

needed relative to a specific application.  He noted that if adequate information

was not available, the Commission had to make a decision on what was

submitted and it was not always what the applicant liked.

Voytilla informed Coun. Doyle that while he was not certain how often an applicant

or appellant would use the Planning Commission or Board of Design Review

hearing as a specific strategy to determine the weaknesses in an application, it

occurred in the 25 years he had been involved in the development community. 

He pointed out that he would favor a continuance of seven days in order to obtain

additional information under credible circumstances.

Mayor Drake noted that David DeHarpport expressed his expressed his

opposition to the appeal on his testimony card; but he was not present to testify.

Beverly Bookin, Portland, stated that she had been a planner for 20 years and that

she worked with a large group of planners, private developers, institutions, and

public agencies.  She said she served on the CRAC Committee and   expressed

her opposition to this appeal.  She pointed out that staff had presented a good

case for not allowing de novo hearings on appeal, with the exception of very rare

cases.  She explained that neighbors discussed the need for a level playing field;

that they were at a disadvantage because they did not possess the technical

expertise that developers had. She said she saw the level playing field from a

different perspective; that it was the applicant who would bear the full burden of

proof.  She noted that as the applicant’s representative she was obligated to

ensure that the record was as complete as possible and to address each criteria,

condition, and standard.  She noted that the opponents have only two obligations: 

1) To establish standing at the evidentiary or decision-making hearing; and 2) To

limit their comments to those issues that the decision-making body had the

authority to review.  She expressed her opinion that the applicant appropriately

had a much tougher row to hoe than that of the opponents.  She said she was

very concerned with the discussion with regard to the alleged “A Team/ B Team.” 

Noting that the applicant did not win cases on appeal, she emphasized that the

applicant did not want to have to address an appeal.  

Bookin emphasized that she did not wait until the hearing to submit additional

information; that she made every attempt to avoid any unnecessary delay or

continuance.  She stressed that time was money and that every attempt was

made to work with the neighbors to resolve issues from the beginning.  

Bookin said If there was a disagreement that could not be resolved, then the

decision-making body would resolve the case on its own merits.

Coun. Ruby asked Bookin if she felt that most of her colleagues in the

development community had the same philosophy.

Bookin replied that they did.   She said she would rather deal with an on-the-

record appeal.  She noted reference was made to legal appeals and noted that

murder appeals were conducted on-the-record.

Coun. Stanton said that Bookin had presented a compelling argument for on-the-

record appeals and it was unfortunate that not all consultants approached the

issues as directly as she did.

Bookin replied that all consultants and planners were bound by a code of ethics.

Mayor Drake suggested that the appeal be continued to July 8, 2002. 

Coun. Soth MOVED, SECONDED by Coun. Brzezinski, to continue the appeal to

July 8, 2002, with no additional oral public testimony to be received and written

testimony to be accepted until June 24, 2002.  

Question called on the motion.  Coun. Brzezinski, Doyle, Soth, Ruby and Stanton

voting AYE, the MOTION CARRIED unanimously.  (5:0)   

02204

SNC 2002-0001 Street Name Change Affecting Portions of SW Henry Street and

SW Beaverdam Road and Certain Un-named Streets

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.

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.

There were none.  

Grillo asked if there was anyone present who wished to challenge the Council’s

authority to hear the matter.

There were no challenges.  

Osterburg said he would answer Council questions from the staff report.

There were no questions.

There was no one in the audience who wished to testify on this issue and there

were no Council questions.  

Mayor Drake closed the public hearing.

Coun. Stanton MOVED, SECONDED by Coun. Soth, to approve Agenda Bill

02204, SNC 2002-0001 Street Name Change Affecting Portions of SW Henry

Street and SW Beaverdam Road and Certain Un-named Streets.

Question called on the motion.  Coun. Brzezinski, Doyle, Soth, Ruby and Stanton

voting AYE, the MOTION CARRIED unanimously.  (5:0)   

ORDINANCES:

Suspend Rules:

Coun.  Soth MOVED, SECONDED by Coun. Brzezinski that the rules be

suspended, and that the ordinances embodied in AB 02205 and AB 02206 be

read for the first time by title only at this meeting, and for the second time by title

only at the next regular meeting of the Council.  Couns. Brzezinski, Doyle, Ruby,

Soth and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)

First Reading:

Pilliod read the following ordinances for the first time by title only:

02205

An Ordinance Relating to the Sale of Tobacco Products, Establishing a Minimum

Quantity of Cigarettes Per Package And Prohibiting Self-Service Tobacco Sales

(Ord. No. 4215)

02206

An Ordinance Annexing Four Parcels and Right-of-Way Lying Generally Outside

of the Existing City Limits to the City of Beaverton; ANX 2002-0006  (SW Canyon

Road/SW 110th Avenue Expedited Annexation)  (Ord. No. 4216)

Second Reading and Passage:

Pilliod read the following ordinances for the second time by title only:

02180

An Ordinance Amending Ordinance No. 4187, the Comprehensive Plan by

Removing a Portion of SW Second Street as a Neighborhood Route from the

Functional Classification Plan Map, Figure 6.7; CPA 2001-0022 (Beaverton High

School) (Ord. No. 4211)

02181

An Ordinance Amending Ordinance No. 4187, the Comprehensive Plan Map and

Ordinance 2050, the Zoning Map for One Parcel Located at 4885 SW Laurelwood

Avenue; CPA 2002-0002/RZ 2002-0013.  (Ord. No. 4212)

02182

An Ordinance Amending Ordinance No. 2050, the Zoning Map, on Seven Parcels;

(East Murray/Davies Residential Zone Change) RZ 2002-0010.  (Ord. No. 4213)

02183

An Ordinance Amending Ordinance No.2050, the Zoning Map, on 102 Parcels;

(Downtown Regional Center: R-1 to RC-OT) RZ 2002-0011. (Ord. No. 4214)

Coun. Soth MOVED, SECONDED by Coun. Stanton that the ordinances

embodied in AB 02180, AB 02181, AB 02182 and AB 02183 now pass.  Roll call

vote.  Couns. Brzezinski, Doyle, Ruby, Soth and Stanton voting AYE, the MOTION

CARRIED unanimously.  (5:0)

EXECUTIVE SESSION:

Coun. Soth MOVED, SECONDED by Coun. Ruby that the Council move into

executive session in accordance with ORS 192.660 (1) (h) to discuss the legal

rights and duties of the governing body with regard to litigation or litigation likely to

be filed.  Pursuant to ORS 192.660 (3), it is Council’s wish that the items

discussed not be disclosed by media representatives or others.  Couns.

Brzezinski, Doyle, Soth, Ruby and Stanton voting AYE, the MOTION CARRIED

unanimously.  (5:0)

Coun. Brzezinski MOVED, SECONDED by Coun. Soth to proceed with the

settlement action as explained and discussed during executive session.  

Question called on the motion.  Coun. Brzezinski, Doyle, Soth, Ruby and Stanton

voting AYE, the motion CARRIED unanimously.  (5:0)   

ADJOURNMENT

There being no further business to come before the Council at this time, the meeting was

adjourned at 12:45 a.m.  

_____________________________

Sue Nelson, City Recorder

APPROVAL:

Approved this     7th    day of     October   , 2002.

______________________________

Rob Drake, Mayor