BEAVERTON CITY COUNCIL
REGULAR MEETING
JULY 14, 2003
CALL TO ORDER:
The Regular Meeting of the Beaverton City Council was called to order by Mayor Rob
Drake in the Forest C. Soth Council Chambers, 4755 SW Griffith Drive, Beaverton,
Oregon, on Monday, July 14, 2003, at 6:30 p.m.
ROLL CALL:
Present were Mayor Drake, Couns. Betty Bode, Dennis Doyle, Fred Ruby, Forrest Soth
and Cathy Stanton. Also present were Chief of Staff Linda Adlard, City Attorney Mark
Pilliod, Finance Director Patrick O'Claire, Community Development Director Joe Grillo,
Engineering Director Tom Ramisch, Operations/Maintenance Director Gary Brentano,
Library Director Ed House, Police Captain Stan Newland, Development Services Manager
Steven Sparks, Utilities Engineer David Winship, Transportation Engineer Randy Wooley
and City Recorder Sue Nelson.
CITIZEN COMMUNICATION:
Sandra Camley said she was in support of Will-Call service for garbage pickup. She said
it was a win-win situation for everyone. She reviewed how the service benefited residents,
the environment, the haulers and the City. She asked that the City actively promote will-
call service and also publish in the Your City newsletter an information sheet entitled
“Save Money - Save the Environment” which she gave to the City Recorder for the record.
She asked for a statement of support for the idea of promoting will-call service.
Mayor Drake thanked her for the information.
Reverend Ja West, founder of Saint United Missions of God and Christ, said she was
looking for a building for her church. She asked if the City had an empty building for they
would need a donated building.
Mayor Drake explained the City did not have any vacant buildings available.
West thanked the Council for listening.
Henry Kane, referred to the 114th Avenue Redevelopment Plan. He read from page 5 of
the March 4, 2002, Council Minutes “Coun. Doyle agreed and noted that the input from the
business community would be essential as to what they thought the market would
support.” He said he attended all the meetings and the only people who testified were
from Carr Subaru and Fred Meyer; He said it was impractical and would cost taxpayers
millions of dollars. He noted there was no assurance of success and the property was
frozen, which would affect its sale and lease. He asked that Council direct staff to
abandon the 114th Avenue scheme unless staff demonstrated the existence of the millions
of dollar needed to buy out property owners and compensate them for lost business. He
asked that amendments that reduce the value of property be removed from the
Comprehensive Plan and that the property not be frozen.
Beaverton City Council
July 14, 2003 – Minutes
Page 2
COUNCIL ITEMS:
Coun. Soth reported on the Joint Water Commission meeting. He noted there will be a
number of significant improvements necessary in the next few years. He said the projects
that would affect Beaverton the most were the continuation of the Aquifer Storage/
Recovery Project, a new reservoir at Spring Hill and an upgrade of the existing reservoir
on Spring Hill. He noted the proposals to raise Scoggins Dam would also be considered.
He suggested everyone check the newspapers for information on these issues over the
next year.
Coun. Doyle announced the SummerFEST would be this weekend in Griffith Park. He
noted the parade would be on Saturday and the entertainment being offered was
excellent.
Coun. Stanton noted the Doobie Brothers would be performing on Sunday night and the
tickets were $10.00, if purchased in advance.
STAFF ITEMS:
There were none.
CONSENT AGENDA:
Coun. Doyle MOVED, SECONDED by Coun. Soth, that the Consent Agenda be approved
as follows:
Minutes of Regular Meeting of July 7, 2003
03161
Traffic Commission Issues No. TC 521-525
03162
Final Order for Traffic Commission Issue No. TC 500 Regarding Left Turn Restrictions on
SW Greenway at the Driveway Near Hall Boulevard
03163
Allocation of Traffic Enhancement Funds to Additional Projects for Traffic Calming and
Traffic Signal Modifications
03164
Annual Resolution to Update Development Services Fees for Planning Permits, Appeals,
and Other Services (Resolution No. 3724)
03165
Authorize the Mayor to Sign Letter Agreement with ODOT Regarding City Reimbursement
for Utility Relocation in Sunset Highway (US 26) - Highway 217 to Sylvan Interchange
03166
Liquor License Application: Pacific Coast Wine Club, Inc.
03167
Liquor License Application: Blue Cafe
03168
Boards and Commissions Appointment (Holly Isaak to BCCI)
03169
Resolution Authorizing the Issuance of up to $3 Million in New Water Revenue Bonds and
Authority to Submit the Advance Refunding Plan to the State Treasury on the 1994 and
1997 Water Revenue Bond Issues (Resolution No. 3725)
Beaverton City Council
July 14, 2003 – Minutes
Page 3
03174
Resolution of Intent to Condemn Property Generally Located Along SW Barrows Road for
Use as Public Right-of-Way (Resolution No. 3726)
Contract Review Board:
03170
Authorization to Issue a Request for Proposal and to Select an Underwriter and Enter into
a Negotiated Sale of the Proposed 2003 Water Revenue and Advance Refunding and
New Money Bond Issue
Coun. Stanton said she had some additions to the July 7, 2003, minutes which she gave
to the City Recorder.
Question called on the motion. Couns. Bode, Doyle, Soth, Ruby and Stanton voting AYE,
the MOTION CARRIED unanimously. (5:0)
PUBLIC HEARING:
03171
APP 2003-0007: Appeal of Director’s Interpretation for Eating and Drinking Establishments
in the Campus Industrial Zoning District
Joe Grillo, Community Development Director, 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 that Councilors declare if they received any ex parte contacts, the nature of
such contacts and whether the contact has impaired the councilor’s impartiality or ability to
vote on the matter.
Coun. Stanton said she called Eric Johansen, Planning Commissioner, to discuss what
the words meant in some of the sections. She said they had not discussed the outcome.
Grillo asked if there was anyone present who wished to challenge the Council’s authority
to hear the matter.
There were no challenges.
Grillo then read the rules for the hearing (in the record).
Mayor Drake explained this request was not property specific; it was policy specific on the
Campus Industrial Zone.
Beaverton City Council
July 14, 2003 – Minutes
Page 4
Development Services Manager Steven Sparks introduced Senior Planner Kevin Snyder
Sparks explained the appellant requested a determination to find that a free-standing
eating and drinking establishment (restaurant) was authorized in the Campus Industrial
(CI) Zone. He said the Director’s determination found that type of use was not authorized.
He said the CI Zone was clear in that eating and drinking establishments were ancillary to
permitted uses; restaurants benefited the patrons from that principal use (hotels). He said
the Code supported this through other requirements, such as signage. He explained
Development Code Section 10.50 referred to uses listed in other zones and how an
applicant could ask for an interpretation for a similar use. He said that per Section 10.50,
the Director could not authorize a use already listed in another zoning district, and eating
and drinking establishments were listed in other zoning districts. He said based on the CI
Zone requirements and Code Section10.50, the Community Development Director
concluded the request to include eating and drinking establishments as a freestanding use
was not consistent with the Campus Industrial Zone.
Coun. Soth asked about the difference between hotels in the CI Zone and hotels in
General Commercial and other zones.
Sparks replied hotels in the General Commercial (GC) Zone had specific use restrictions;
also, eating and drinking establishments were a permitted use in GC, so whether they
were connected to a hotel or not was immaterial.
Coun. Soth asked if hotels were a conditional use in the CI Zone.
Sparks explained it was a conditional use, subject to the restrictions of the development
control area. He noted if an applicant wanted to include a restaurant with the hotel it
would be considered during the conditional use process.
Coun. Stanton asked if in the CI Zone could a restaurant just be one tenant, such as a
delicatessen.
Sparks replied no. He explained during the development review, an applicant progressed
through the development control process to determine how much retail and office was in
that development control area. He said the process ended there; the Development
Services Division did not check occupancy permits when a tenant would move into the
building.
Coun. Stanton pointed out there were delicatessens in Kole Creekside on Hall Boulevard
and asked how they were allowed.
Sparks replied they were not allowed uses within the Development Code. He explained
the City did not perform zoning checks of over-the-counter building permits for tenant
improvements (as tenants come and go). He said Code Enforcement could shut the
business down if a complaint was received.
Coun. Stanton asked if that went against the concept of the CI Zone with ancillary uses, to
meet the needs of the employees in the development.
Beaverton City Council
July 14, 2003 – Minutes
Page 5
Sparks replied the CI Zone was only ancillary to the permitted use such as a hotel or a
large business with a cafeteria inside.
Coun. Bode stated they had competing codes. She said when 158th Avenue and Walker
Road was developed, food service was an ancillary use and it was decided putting people
within walking distance benefited transportation, health and livability, so they approved the
restaurants and driveways. She said she was wrestling with the definitions and how this
worked out, because in another case the decision might be based on traffic impacts or
pedestrian rights. She said the lack of clarity in the terms and the competing Codes,
placed everyone at odds with each other as they tried to sort it out.
Sparks explained staff was working on updating the Code to provide more clarity. He
agreed there were competing interests to which the City was trying to respond. He noted
policy issues could be debated on whether to allow restaurants based on size. He also
noted the value and importance of industrial land for the local economy had to be
considered; was it more valuable to keep industrial land for industrial purposes or turn it
over for commercial use. He said one could consider whether land was zoned
appropriately. He said there was no quick answer to Bode’s concerns.
Coun. Doyle asked why this type of establishment was not in the CI portion of the Code.
Senior Planner Kevin Snyder said staff reviewed the legislative history and could not find
direct references as to why eating and drinking establishments without drive-through
windows were exempted; he noted they researched the text amendments of 1991 and
1996 at the Planning Commission and City Council levels. He said they could not find a
definitive reason for the exemption.
Coun. Doyle asked if anyone ever challenged the provisions (page 31, b and c) which said
“shall only provide services to the users of the permitted use only” and “shall not serve the
general public and other non-users of the permitted use.”
Sparks said these provisions were criteria in the Code for ancillary uses in a hotel. He
said they were “guide” statements; not enforceable provisions.
Coun. Soth explained when the CI Zone was first developed these types of establishments
were not included because the CI Zone envisioned small delicatessen type restaurants for
the people in that area, rather than attracting the general public. He said that was the
concept of the CI Zone, in contrast to the General Commercial Zone which attracted the
public; and that was the reason for the ten percent (10%) limitation.
Mayor Drake noted Council had the authority to make a text amendment to Campus
Industrial to make it consistent with the other two industrial zones. He added one could
maintain a 10% maximum on retail and, if there was a text amendment to make CI
consistent with the other industrial zones, this could take care of this issue.
Sparks replied that was correct.
Mayor Drake noted a regional discussion had been occurring state-wide on the shortage
of industrial land and a Task Force report was coming out in a few weeks. He noted the
Portland area was short of industrial land to meet a 20-year growth supply. He said
implementing a text amendment would take care of this issue and if the 10% retail was
Beaverton City Council
July 14, 2003 – Minutes
Page 6
retained, the City could “kill two birds with one stone,” protect the current industrial land
and accommodate this specific use in Campus Industrial.
Sparks confirmed that was correct.
Coun. Stanton referred to Coun. Bode’s earlier comments about Regatta Lane
(158th/Walker) which was zoned office commercial. She said restaurants were allowed as
a conditional use but there weren’t any office buildings on that street. She noted a
conditional use had the capability to change the underlying zoning. She noted pages 63-
64 of the packet were the file copies of C. E. John Company’s development application for
the director’s interpretation. She asked if the response was the March 9, 2000, letter to
Stephen Nobach from Joe Grillo (pages 74-75).
Snyder said the March 9, 2000, letter to Nobach was submitted by the applicant as part of
their application for the interpretation.
Sparks said the response to C. E. John Company started on page 21.
Coun. Stanton noted for this project the applicant could have applied for a text amendment
or a rezoning of Tax Lot 800; instead he asked for the Director’s interpretation which was
why the matter was now before Council.
Sparks confirmed that was correct.
Mayor Drake asked if, in the event the applicant did not make a compelling argument
based on the text, the text amendment could be initiated by the City or the appellant. He
noted there was no guarantee it would be implemented, but it would not be inconsistent
with what was in two other segments of the industrial Code.
Sparks replied that was correct.
Coun. Stanton confirmed with Sparks the applicant requested a stand-alone facility.
Coun. Ruby noted one way to resolve the inconsistent language in the CI Zone, was to
initiate a text amendment that made eating and drinking establishments a conditional use,
as they were in the other two industrial districts. He asked for clarification on retaining the
10% retail; were restaurants included in that 10% retail.
Sparks explained eating and drinking establishments were currently allowed in up to 10%
of the development control area. He said the restaurants were not a retail use; they would
be a separate use but still be under the 10% provision.
Coun. Ruby asked if the text amendment would make stand-alone restaurants a
conditional use subject to a 10% limitation combined with other types of retail uses.
Sparks explained it was implemented by looking at a development control area rather than
a parcel; it would be 10% of the entire development control area.
Coun. Ruby thanked Sparks for the answers to his written questions. He said he
understood the current Code should be interpreted to only permit company cafeteria
Beaverton City Council
July 14, 2003 – Minutes
Page 7
restaurants in the CI Zone. He said he thought an equally plausible way of reading that
section was to say they were contrasting the type of restaurants inside hotels as opposed
to restaurants outside of hotels in the CI Zone.
Sparks explained if Council considered recommending a text amendment, there was an
omnibus text amendment in process to cleanup the Code; this could be included in that
process.
Mayor Drake noted if Council considered an amendment, the timing was uncertain on the
omnibus amendment. He said if Council gave specific direction on an issue, it could be
taken out of order if needed.
APPELLANT:
Mark Perniconi, Vancouver, Washington, Vice President, C. E. John Company, noted he
was responsible for development activities. He said four years ago they purchased the
Westpark Parcel, on the corner of Murray Boulevard and Millikan Boulevard, from
Tektronix. He said the site was 8.8 acres; of that, 3.6 acres were either wetlands or
undevelopable. He said after the purchase they annexed the site into the City, the
property was rezoned to Campus Industrial and added to Development Control Area No.
1, with the terms of the designation outlined in a letter of March 9, 2000 (in record). He
said in 2000 they submitted a Type 3 Application to develop the site, which included a
restaurant pad at the corner of Murray and Millikan. During the design review process
they were informed restaurants were not an allowed use in the CI Zone. He said they
appealed the Director’s interpretation on the basis that it was not what was stated in the
Development Code. He said they disagreed with that interpretation and noted their
attorney would explain why they felt this interpretation was legally incorrect.
Joseph S. Voboril, Portland, attorney for C.E. John Company, confirmed his memorandum
of July 10, 2003, was distributed to Council last week and was part of the record. He said
they believed this was a simple issue and only when one strayed from the definitions in
the Code did it become confusing. He noted the site was in the CI Zone and was part of
Development Code Area No. 1. He stated the March 9, 2000, letter from the City to
Nobach said that 4.6 acres was designated for retail development.
Voboril stated protecting industrial lands had nothing to do with this issue. He said the
question was whether a free-standing restaurant, without a drive-through window, was
considered retail and allowed as a permitted use in the CI Zone. He said in the
Development Code, a free-standing retail business offering products or services that had
no more than 15,000 square feet of building area, was a permitted use under Subsection
20.15.05.2.A.7.a, provided the property received a retail allotment. He said his client’s
property had a retail allotment. He said the proposed project had a 9,100 square foot
building pad, so it was within the 15,000 square foot limitation. He noted the Director
concluded a restaurant was not a retail business and said they disagreed with that
interpretation.
Voboril continued by reading definitions from the Development Code “Restaurant: An
establishment where meals are prepared and served to the public for consumption on the
premises entirely. Eating Establishments: An establishment where meals or drinks, either
alcohol or non-alcohol, are prepared and served to the public for consumption; including
Beaverton City Council
July 14, 2003 – Minutes
Page 8
delicatessens, cafes, coffee houses, taverns, bars and restaurants.” He said the Code did
not contain a definition of retail business, but it included “Retail Store: A place of sale to
the ultimate consumer for direct consumption and not for resale.” He said it was clear an
eating and drinking establishment, including a restaurant, was a retail store under the
Code, because a restaurant was a place where a customer directly purchased and
consumed the products sold there. He said they felt it must be a retail business offering
products within the context of Code Section 20.15.05.2.A.7.a. He said to reach a different
conclusion one must assume a retail business offering products meant something other
than a retail store, which he felt was illogical. He said the Code Section 20.15.05.2.C.4
prohibited eating and drinking establishments with drive-through windows in the CI Zone.
He said the reason restaurants with drive-through windows were prohibited was because
the writers of the Code recognized eating and drinking establishments were retail and
permitted uses; they purposely wanted to exclude restaurants with drive-through windows.
Voboril explained the Director’s interpretation was that all restaurants were prohibited in
the CI Zone. He said if the City wanted to prohibit restaurants in the CI Zone, the words
“with drive-through windows” should be removed. He noted the Director’s interpretation
lead to an anomaly in that restaurants were allowed as a conditional use in the Industrial
Park and Light Industrial Zones, and prohibited in the Campus Industrial Zone which was
a mixed use zone. He said this did not make sense and was proof that the Code was not
wrong. He said the appellant’s interpretation was consistent with the Comprehensive
Plan. He said the purpose of the CI Zone was to provide areas to combine light
manufacturing, office, and limited retail uses in an employment center concept. He said it
made sense restaurants would be permitted in a mixed use; a restaurant use would be
supportive of existing and future employment areas within the vicinity and would assist in
reducing employees’ vehicle trips. He said the Code intended that restaurants be allowed
as retail uses because it added to the employment center concept. He added the
designation of 4.6 acres as retail use enhanced that point. He stressed the Comp Plan
policy also included lessening the dependence on the automobile for workday activities.
He said with that policy it made sense fast-food restaurants were prohibited because they
had a different customer base than a sit-down restaurant which promoted the employment
center.
Voboril summarized why he believed the Director’s conclusion was incorrect. He said to
reach that conclusion words in the Code had to be ignored, i.e. drive-through windows.
He noted one had to go through many gyrations to reach the conclusion restaurants were
excluded. He stated there were many reasons the writers of the Code might have had
separate definitions for separate uses; however, it was clear that restaurant was a subset
of “eating and drinking establishments” which was a subset of “retail store” which was a
subset of retail business which was not defined in the Code. He noted the Director
argued that other sections of the Code differentiated between “retail trade” and “eating and
drinking establishments.” The term retail trade was not defined in the Code and was not
the term used in this Code section. He noted the term used in this section was retail
businesses offering products and services.
Voboril concluded if the Council used the definitions in the Code, it would find the
Director’s interpretation was wrong and the appellant’s interpretation was correct. He said
the Director’s interpretation violated legally-mandated principles of statutory construction.
He said to affirm the Director’s interpretation, the Council had to conclude that a retail
business offering products and services meant something other than a retail store and that
Beaverton City Council
July 14, 2003 – Minutes
Page 9
it was okay to have restaurants without drive-through windows in Industrial Park and Light
Industrial Zones, which were true industrial uses, and not permit them in the Campus
Industrial Zone which was a mixed use. Based on this, he asked that Council reverse the
Director’s interpretation.
Coun. Soth noted the appellant’s arguments focused on three main points, one of which
was since there was no permitted use for this type of restaurant in the CI Zone (it was not
mentioned as a prohibited or other use), then by inference it was a permitted use, either
conditionally or otherwise.
Voboril replied that was not their argument. He said their argument was the reason it was
not mentioned specifically was because it was within the definition of retail businesses, as
provided in Subsection 7.A, and so there was no reason to mention it by reference.
Coun. Soth asked if he was equating restaurants with retail uses.
Voboril said their position was that food was a product and the Code said consumption, so
it came within the definition of retail store.
Coun. Soth asked if his third point was that because the March 9, 2000, letter specified the
4.6 acres for retail use within that Development Control Area No. 1 and CI Zone, that
would fit within part of the retail use.
Voboril said that was correct.
Coun. Stanton said she believed the Director made clear points to support his position.
She referred to the definition of a retail store “a place of sale to the ultimate consumer for
direct consumption and not for resale” and said that direct consumption meant retail and
not wholesale; it did not mean consuming it.
Coun. Stanton referred to Section 10.50 which stated “The Director may not permit a use
already allowed in any other zoning district in this Code.” She noted it was allowed in
other zoning districts so he could not allow it here.
Voboril responded that the question was whether a restaurant was within the definition of
a retail business offering products for sale. He said their position was it was already in
Section 20.15.05.2.A.7.a, so there was no need to go the Director for an interpretation.
He said this was not subject to the Director’s discretion; this was allowed as a retail
business offering products for sale in Section 20.15.05.2.A.7.a. He said he was convinced
of this because later in that section they prohibited eating and drinking establishments with
drive-through windows. He asked why that was included if restaurants without drive-
through windows weren’t already covered in 20.15.05.2.A.7.a.
Coun. Stanton noted if they took that position they could put a Texaco gas station in there
and that was not allowed though it was retail for consumption of gas and snacks. She
noted the eating and drinking establishments and auto uses were set out separate from
general retail because they were specific and had different requirements because of their
impact on the area.
Beaverton City Council
July 14, 2003 – Minutes
Page 10
Voboril replied that though there was a separate definition for eating and drinking
establishments, it wasn’t a separate use; it was still a retail use. He said the fact that
restaurants with drive-up windows were excluded, told him those without drive-up windows
were included, or the exclusion would not have had to be done. He said that brought up
the question of why it was allowed as conditional uses in the other industrial zones, where
industrial land was protected, and excluded in the Campus Industrial Zone.
Coun. Ruby noted restaurants were allowed as conditional uses in the other two industrial
zones to have more control over their development. He asked why the framers of the
Code would have been so eager to allow restaurant placement in a less restricted way in
the CI Zone as opposed to the other zones.
Voboril replied because of the purpose of the zone. He said one was intended as a
mixture of uses, including office, manufacturing and retail and there was retail allotment of
10% to protect from encroachment by retail uses. He said statutory construction required
reading the words “with drive through windows” in the prohibited section and since it was
not in there as a conditional use, it was reasonable to conclude it was in there as an
allowed use under the retail businesses category. He said he felt it was legally mandated
given the Code and the definitions.
Coun. Ruby asked how the appellant felt about fixing this through a Code revision to adopt
a more consistent conditional use format for restaurants in all three zones.
Perniconi said from the first day they asked if the restaurant use was a conditional or
permitted use.
Voboril said he had not thought through the implication of proceeding with a legislative fix
and how that would affect the appellant’s application. He said it might work but he hoped
it would not be done in a way that would deny his client’s rights that existed before the
legislative change. He said it would make sense for Council to have a policy discussion
on what was wanted in the CI Zone, but not today. He added he did not think it was a
good idea to discourage restaurants there.
Coun. Soth asked if a development application for this property had been submitted.
Perniconi replied it was submitted and the Design Review was continued subject to the
resolution of this question; they were scheduled for August.
Coun. Soth noted there was nothing to keep the developer from proceeding with a
modification of the plan, to include 4 ¼ acres as retail according to what was presented.
Perniconi explained one of the problems the uncertainty of the restaurant use had caused
was the site plan was non-compliant due to parking issues. He said part of the
development plan for that site “would be set on its ear” because part of the development
area, including the restaurant, was a future pad; their intent was to develop the site from
east to west. He said those were the technical issues that would be impacted significantly.
Brian Doherty said it sounded like the developer’s goal was to have a sit-down restaurant
and he thought that type of establishment would have been wanted there. He said he was
looking at putting in a mobile beverage (coffee) trailer by Bally Total Fitness, which would
Beaverton City Council
July 14, 2003 – Minutes
Page 11
leave at the end of the day. He spoke in favor of small mobile food trailers as they did not
use up the industrial land and could serve up to 2,000 people per day from the area
businesses. He noted these trailers made it easier to start and maintain a business
because of the low overhead.
Mayor Drake asked the staff if Doherty was talking about the same issue.
Grillo responded he thought it was temporary retail which was under a different Code
section.
Doherty added using the smaller trailers allowed more people to start their own business.
He said keeping within the 10% limit allowed more businesses to come in and kept more
industrial space for industrial use.
Coun. Stanton confirmed with Doherty that he was asking Council to maximize the options
in the Code so every opportunity for all kinds of eating and drinking establishments in CI
Zone would be considered.
Coun. Soth noted under Doherty’s scenario, there was nothing to prevent several of these
vehicles lining up along the curb or parking lot of these zones, providing the cumulative did
not exceed 10%.
Doherty said that was not what he envisioned; he was thinking of a four-to-six-hour time
frame, where the trailer would leave at the end of the work day.
REBUTTAL:
Voboril responded to Coun. Stanton that the appellant’s argument was that this was an
outright permitted use under Subsection 7 because you do not have to go to Section 10.50
until you go to Subsection 7.c. He stressed this was not a threat to the industrial land
inventory. He said if the Council looked at the remaining development control areas to
determine what was left and what could happen, the precedent was not as much as they
thought especially in the short-term. He noted he was not sure the Code should be
changed, but if Council wished to do that he did not think there would be a huge influx of
retail if they accepted the appellant’s interpretation.
Mayor Drake closed the hearing.
Coun. Soth MOVED, SECONDED by Council Ruby, that Council deny the appeal based
on the findings of June 24, 2003, staff memorandum, the May 16, 2003, Director’s
interpretation Notice of Decision, and direct staff to prepare a land use order affirming
Council’s decision.
Coun. Soth said though this restaurant use was not specified in the CI Zone as a
conditionally permitted use, nor was it prohibited, that did not mean it was a permitted use.
He said whether or not an error occurred several years ago was not a substantive
question; the fact was it was not addressed at that time. He said when the application
came to the Director for his opinion, he had to apply the Code. He noted they were
discussing general policy for the entire CI Zone and not a specific site. He said the denial
was consistent with the Comprehensive Plan and Development Code because the CI
Zone was never envisioned to attract the public but was intended to cater to the people
Beaverton City Council
July 14, 2003 – Minutes
Page 12
and the actions within the CI Zone. He said for those reasons he recommended upholding
the Director’s decision.
Coun. Ruby said he was not sure if this was a friendly amendment. He said he wanted to
advance the text amendment to change the CI Zone to add eating and drinking
establishments as a conditional use, consistent with the two other industrial zones, but
subject to the 10% limitation for restaurants and retail establishments. He said he favored
taking the Code revision out of turn to expedite the process and work in good faith with the
appellant.
Coun. Soth said he saw that as a separate motion.
Coun. Ruby said his second was only for discussion purposes.
Coun. Stanton said she supported the motion because she agreed with Coun. Soth. She
said she believes the General Provisions are the overriding guiding principles that would
supercede all the other sections of the Code. Because of this, she said, you would look at
Section 10.50 first, not last. She said the requirement that “The Director may not permit a
use already allowed in any other zoning district of this Code” was specific. She noted
Section 20.15.05.2.B.3.C.6 did not allow the Council to do any more than what the
Director had done. She said she supported addressing this issue in the future.
Coun. Doyle said he understood the applicant’s argument and it made sense to him. He
said it may have pointed out a necessary correction to the Code. He noted a lot hinged on
the conditional use. He said he probably would not support the motion.
Coun. Bode said she would go with logical development and sequential thought as
competing Codes did not help. She said she favored addressing the issue and she
supported the appellant’s request. She stressed that to expedite City government, clearly
defined terms that were logically presented were needed. She said she could not support
the motion.
Coun. Stanton said supporting the motion would give Couns. Bode and Ruby what they
wanted. She said by upholding the Director’s decision, they were saying the Code did not
allow for a stand-alone eating and drinking establishment in the CI Zone. She said it was
not clearly defined in the Code but that was what it said, especially when Section 10.50
was considered. She suggested upholding the Director’s interpretation and coming back
with a text amendment soon. She said if the Director’s decision was overturned, then
stand-alone restaurants would be allowed in the CI Zone with no restrictions because
there would be no criteria. She asked would we be ready for 75 developers coming into
the Community Development Department the day after the Final Order was signed.
Coun. Bode said she thought it was logical that this was retail and if Code revisions were
needed, that was the City’s job. She noted the question before the Council needed a yes
or no answer.
Mayor Drake explained they were talking about the entire Campus Industrial Zone and the
issue was the City’s interpretation of what happened in the industrial area. He noted he
had no vested interest in this item. He cautioned they were getting specific about a piece
of property and that was not what this was about; the issue was the specific zone. He
Beaverton City Council
July 14, 2003 – Minutes
Page 13
noted the text amendment process took five months due to noticing requirements and
State law, and the applicant had the option to request a text amendment. He repeated the
discussion was on the broader issue not on the specific property.
Coun. Ruby stated the Council could not find in favor of the appellant without accepting
the argument that eating and drinking establishments were retail uses. He asked if
reaching that conclusion might have some implications for other aspects of interpreting the
Code, since the Director noted there were other parts of the Code where eating and
drinking establishments were treated separately from other retail uses.
Grillo responded if the Council found eating and drinking establishments were a retail
business within the CI Zone, staff would proceed with implementing this decision with this
and any other applicant, until such time as the Council directed the Department to adopt
other language. He noted he was not certain it would affect other zoning districts as there
were a variety of subsets of retail uses in the Code, in other districts, not called retail
trade, one of which was eating and drinking establishments. He said this community
decided to allow retail businesses in a variety of different districts and had established
specific subsets of that, i.e. eating and drinking establishments, gas stations. He said a
decision to approve eating and drinking establishments for Campus Industrial did not
mean it would be approved for other zoning districts if they were not mentioned.
Coun. Ruby noted the appellant’s argument required the City to allow restaurants as an
outright use, up to the 10%, in the CI Zone. He asked if the City had less control on the
type of restaurant to be sited if it was an outright use as opposed to a conditional use.
Grillo explained if it was a permitted use the application would go to the Board of Design
Review; the only criteria that would be applied was the design review criteria for a
permitted use and any traffic impact. He said if it was a conditional use, it would go to the
Planning Commission who would use the criteria for conditional uses in addition to the
design issues. He added the community decided, through the Code, that conditional uses
had the potential for additional impacts and those impacts need to be discussed and
mitigated through conditions, and be considered by the Planning Commission.
Coun. Ruby said there was no evidence in the record to suggest restaurant placement in
the CI Zone was wanted without that type of review.
Question called on the motion. Couns. Ruby, Stanton and Soth voting AYE; Couns. Bode,
and Doyle voting NAY, the MOTION CARRIED. (3:2)
Coun. Ruby MOVED, SECONDED by Coun. Stanton, that staff be requested to undertake
and initiate a text amendment for the portion of the Development Code dealing with the
Campus Industrial Zone to establish that eating and drinking establishments were
conditional uses, similar to the manner in which they were listed in the other two industrial
districts, and subject to the 10% limitation that was in the existing Code; with that 10% to
be the limitation on both eating and drinking establishments and other types of retail uses.
Mayor Drake stated this would be expedited.
Coun. Doyle said he would support the motion because it would make a necessary
correction.
Beaverton City Council
July 14, 2003 – Minutes
Page 14
Coun. Soth said he would support the motion as this Code section needed clarification.
Question called on the motion. Couns. Bode, Doyle, Ruby, Soth and Stanton voting AYE,
the MOTION CARRIED. (5:0)
Coun. Stanton referred to Doherty’s testimony and asked where retail mobile facilities
were in the Code.
Sparks explained they were in the Code as a temporary mobile sales use and through the
design review process for a temporary structure on a permanent foundation in the middle
of a parking lot, which included building permit and County health code licenses.
ORDINANCES:
Suspend Rules:
Coun. Soth MOVED, SECONDED by Coun. Ruby, that the rules be suspended, and that
the ordinances embodied in Agenda Bills 03172 and 03173 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. Bode, Doyle, Ruby, Soth and Stanton voting AYE, the MOTION
CARRIED unanimously. (5:0)
First Reading:
Pilliod read the following ordinance for the first time by title only:
03172
An Ordinance Amending Ordinance No. 2050, the Development Code, Chapter 20; TA
2003-0001 (Section 20.20.50.E Text Amendment). (Ordinance No. 4259)
03173
An Ordinance Amending Ordinance No. 4187, Figure III-1, the Comprehensive Plan Land
Use Map and Ordinance No. 2050, the Zoning Map for Property Located at 8904 SW
Canyon Road and 8917 SW Cashmur Lane; CPA 2003-0003/ZMA 2003-0003.
(Ordinance No. 4260)
Second Reading:
Pilliod noted that Agenda Bill 03260, Ordinance 4258, Section I amending BC 6.02.750
was amended at the last meeting to insert the word “not” in the last clause of that section.
Pilliod read the following ordinance for the second time by title only:
03160
An Ordinance Amending and Repealing Provisions of Chapter Six of the Beaverton City
Code Relating to Vehicle and Traffic Regulations (Ordinance No. 4258)
Coun. Soth MOVED, SECONDED by Coun. Stanton that the ordinance embodied in
Agenda Bill 03160 now pass. Roll call vote. Couns. Bode, Doyle, Ruby, Soth and Stanton
voting AYE, the MOTION CARRIED unanimously. (5:0)
ADJOURNMENT:
Beaverton City Council
July 14, 2003 – Minutes
Page 15
There being no further business to come before the Council at this time, the meeting was
adjourned at 9:00 p.m.
______________________________
Sue Nelson, City Recorder
APPROVAL:
Approved this 4th day of August, 2003.
__________________________________
Rob Drake, Mayor