BEAVERTON CITY COUNCIL  REGULAR MEETING MINUTES MARCH 17, 2003 CALL TO ORDER: The Regular Meeting of the Beaverton City Council was called to order by Mayor Rob Drake in the Forrest C. Soth Council Chambers, 4755 SW Griffith Drive, Beaverton, Oregon, on Monday, March 17, 2003, at 7:50 p.m.   ROLL CALL: Present were Mayor Drake, Couns. Dennis Doyle, Fred Ruby and Cathy Stanton.  Couns. Forrest Soth and Betty Bode were excused.  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, Human Resources Director Sandra Miller, Operations/Maintenance Director Gary Brentano, Library Director Ed House, Police Captain Wes Ervin, City Engineer Terry Waldele, Transportation Engineer Randy Wooley, Project Engineer Jim Duggan, Building Official Brad Roast, Development Services Manager Steven Sparks and City Recorder Sue Nelson. CITIZEN COMMUNICATION: Ruth Borick, Beaverton, Community Relations Officer, Hearthstone, expressed her concern about the lack of housing for low-income seniors in Washington County.  She read a letter she had written to Michael Parkhurst, CDBG Project Coordinator, on the shortage of senior housing.  She said the Washington County Council on Aging was developing low-income senior housing in Multnomah County and  Washington County seniors might have to go to Multnomah to find housing.  She noted Washington County purchased 7,000 acres for environmental purposes and asked if senior housing wasn’t equally important.  She added that the City purchased property from Teufel Nursery and asked that governmental agencies devote resources and funds to senior housing.  She said two acres were adequate to develop housing and HUD would participate with a grant of $7,000 per housing unit.  She asked that City and County leaders work together to find the answers for this long-standing concern.   Mayor Drake thanked her for the letter and said the City was interested in all affordable housing.  He said the City was committed to helping facilitate the construction of affordable housing but there was limited funding and the City received less in Block Grant funds than had been anticipated.  He clarified it was the Beaverton School District that purchased land from Teufel Nursery and not the City.   Borick said her concern was that agencies worked together.  She asked if the City was planning any senior housing facilities in the near future. Beaverton City Council March 17, 2003 – Minutes Page ² Mayor Drake replied there were some projects in progress.   Borick said she would offer the assistance of the Council on Aging and other seniors as needed.    COUNCIL ITEMS: Coun. Stanton said she attended the National League of Cities Conference.  She said she was concerned about clean water issues and funding; particularly Hagg Lake and Bull Run.   Mayor Drake replied he had not received any news on the Federal government level.  Coun. Doyle said he attended the League conference and heard from several sources outside of Oregon who thought Oregon did not have any economic problems.  He said he worked hard to set the record straight.  He stressed that there would not be help from the Federal government.  He noted Homeland Security would be funded but there would not be any money for the State of Oregon.  He said he was happy to be in Oregon where government agencies worked together; for that was not the case in other areas of the country.   STAFF ITEMS: There were none. CONSENT AGENDA: Mayor Drake added Agenda Bill 03069 to the Consent Agenda, a resolution supporting the Beaverton School District’s local option levy which would be on the May 20th ballot. Coun. Doyle  MOVED, SECONDED by Coun. Stanton, that the Consent Agenda be approved as follows: Minutes of Regular Meeting of February 24, 2003. 03062 Traffic Commission Issues No. TC 501-509 03063 Allocation of Traffic Enhancement Funds for Installation of Pedestrian Countdown Signals 03064 Liquor License – Annual Renewals 03065 Liquor License - Change of Ownership: Valley Lanes 03066 A Resolution Authorizing Participation in the Appeal of the 2003 PERS Rate Order Through the League of Oregon Cities and Retention of Mersereau & Shannon, LLP, Attorneys (Resolution No. 3709) 03069 Resolution Supporting Beaverton School District Local Option Levy (Resolution No. 3710) Beaverton City Council March 17, 2003 – Minutes Page ³ Coun. Stanton said she had two minor additions to the minutes that she gave to the City Recorder. Coun. Doyle said he would support Agenda Bill 03069.   Question called on the motion.  Couns. Doyle, Ruby and Stanton voting AYE, the MOTION CARRIED unanimously.  (3:0) PUBLIC HEARING: 03067 APP 2003-0005; Appeal of the Board of Design Review Decision of the Proposed Krispy Kreme Doughnuts at NW Cornell Road (BDR 2002-0148)  Mayor Drake opened the public hearing. Community Development Director Joe Grillo read a prepared statement defining the process to be followed for the hearing, including the various required disclosure statements (in record). Grillo asked if there was anyone present who wanted to challenge the Mayor or Councilors’ right to hear the matter that evening. There were no challenges. Grillo asked if there were any Councilors who wished to abstain due to impartiality. There were none.   Grillo asked if there were any Councilors who had received any ex parte contacts, the nature of such contacts and whether the contact had impaired the councilor’s impartiality or ability to vote on the matter. Coun. Stanton stated she was familiar with the site. Grillo asked if there was anyone present who wished to challenge the Council’s authority to hear the matter. There were no challenges. Development Services Manager Steven Sparks noted two letters were entered into the record; (1) Henry Kane letter dated March 17, 2003, and (2) Michael Robinson, Perkins Coie letter dated March 17, 2003.  Sparks explained the appeal before Council was filed by the Beaverton School District and the two points of appeal were based on traffic issues discussed by the Board of Design Review.  He introduced Transportation Engineer Randy Wooley and Associate Planner Tyler Ryerson and offered to answer Council questions. Coun. Stanton confirmed that old Code Section 60.60 was Section 60.55 in the new Code.  Beaverton City Council March 17, 2003 – Minutes Page 4 Coun. Doyle confirmed with Sparks that the two appeal points had not changed. City Attorney Mark Pilliod asked if staff had a chance to evaluate the material that the School District distributed at this meeting. Sparks said they had not had an opportunity to review it.  Mayor Drake called for a recess to give staff a chance to review the Beaverton School District’s material. RECESS: Mayor Drake called for recess at 8:20 p.m. RECONVENED: Mayor Drake reconvened the meeting at 8:30 p.m. Michael Robinson, attorney for Kremeworks Oregon LLC (applicant), 1211 SW 5th, Suite 1500, Portland, asked that Council approve the staff’s recommendation and affirm the Board of Design Review’s (BDR) approval.  He noted the letter he distributed to Council was part of the record.  He introduced Kevin Bruzzone, Kremeworks Oregon, LLC, and Michael Swenson, Transpo Group, the traffic engineering firm that prepared the traffic analysis that was the subject of the appeal.  Robinson said he had a brief opportunity to review the March 17, 2003, documents submitted by the School District.  He pointed out that on Page 2, the District cited Development Code 60.10.10.7H; he noted this section was not cited in the appeal and the appellant was limited to issues raised in the appeal.   He stated access safety (60.10.10.7H) was beyond the scope of this appeal.   Robinson explained the record included the Traffic Impact Analysis (TIA) and memorandum prepared by Transpo in response to questions raised at the BDR Hearing.  He said that after hearing all the evidence, questions and responses, the BDR concluded this project met all the approval criteria.  He stated the TIA and supplemental memorandum were ample evidence and demonstrated that the BDR was correct in finding that the applicant met the relevant approval criteria.  He said the District wanted a traffic study done that was not allowed by the Code and the Code clearly stipulated what the TIA must include.   He reviewed the first point of appeal; the applicant failed to include traffic counts from the District’s Transportation and Support Center (TSC) as required by Code Section 60.60.10.7.F.2.  He noted the TSC application did not have final development approval; it was denied by Council and was on appeal to LUBA.  The Code requirements were that this could not be included in the TIA because it had not received final development approval.  He added this was the conclusion of the staff report and the BDR.  Robinson noted the second point of appeal was that the Krispy Kreme TIA should have included bus storage and dispatch uses at the TSC site.  He noted the use was allowed in that zone, but the Code required existing traffic be measured over the past twelve months.  He noted school buses were not operating at that time and there wasn’t an obligation under the Code to speculate on the level of activity that might occur on property that wasn’t  developed.   Beaverton City Council March 17, 2003 – Minutes Page 5 Robinson concluded that the staff and BDR found the Krispy Kreme TIA complied with the Development Code.  He reiterated that the TSC could not be considered as it was not an approved plan and traffic could not be counted from a non-existing use.  He added the Facilities Review Committee reached the same conclusion  (pages 168-169 of record).  He asked that Council reject the appeal and affirm the BDR.   SUPPORT OF APPLICANT’S POSITION:   Rachel Nettleton, Aloha, Chair Five Oaks Triple Creek Neighborhood Association Committee (NAC), said the NAC favored the applicant’s proposal because it brought business and employment to the area.  She noted other uses could be developed in that area; they would rather have a Krispy Kreme than a Mr. Peeps.  She said the applicant came to the NAC meetings and listened to the residents’ concerns.  She said they were pleased with the project and the developer’s willingness to work with the neighborhood.   Jeff Gregor, Beaverton, noted the Beaverton School District was another developer and it was not the Council’s responsibility to School District’s bus problems.  He said Krispy Kreme had been an extremely good applicant; in contrast to the Beaverton School District’s application.    Mayor Drake asked Gregor to keep on track and address the traffic issues for Krispy Kreme. Gregor thanked the Mayor and said he had no further comments. David Kamin, Beaverton, Five Oaks Triple Creek NAC, reported that last June Krispy Kreme made an excellent presentation to the NAC.  He said they followed all the rules regarding interaction with the neighborhood, which the NAC appreciated.  He said the developer incorporated some of the NAC’s ideas into the design, including traffic suggestions.  He said the NAC encouraged them to go to the County.  He said there was a spirit of cooperation between Krispy Kreme, the surrounding businesses and the neighbors.  He praised the developer and noted in November the NAC wrote a letter endorsing the 24-hour operation.  He concluded that the NAC Board unanimously supported this project; it was good for the community and for the neighborhood.      Mayor Drake noted a letter of support from David James dated March 10, 2003, was submitted for the record.   APPELLANT: BEAVERTON SCHOOL DISTRICT Dr. Robert J. Fisher, Beaverton School District, read Section I of a prepared statement titled “Appeal of BDR 2002-0148-Krispy Kreme Doughnuts” dated March 17, 2003 (in record).   He said the TSC site was not occupied today because the School District was honoring a request by the Mayor and City staff to hold off on using the site until the LUBA appeal mediation was completed.  He said the mediator concluded that only the Beaverton School District had demonstrated a willingness to compromise; therefore he was terminating the mediation process.   Beaverton City Council March 17, 2003 – Minutes Page 6 Fisher continued by stating that the District would begin to place and operate buses from the TSC site.  He said that on February 27, 2003, the City confirmed that storing and dispatching buses from the TSC site was an allowed use and no additional permits or reviews were required. He asked Krispy Kreme and the City to consider traffic associated with the allowed uses of the TSC site when the Krispy Kreme traffic study was evaluated.  He submitted a new Kittleson traffic study and the original DKS study as evidence to contradict the Krispy Kreme traffic analysis on the number of trips for the TSC.  He said the applicant’s study had not met the requirements of DC 60.60.10.7H, that a realistic daily trip count be used for the TSC.  He said if the District prevailed at LUBA, there would be 196 buses operating from this site which would generate more trips than were presented in the Krispy Kreme TIA. Jan Youngquist, Beaverton School District, read Section II of the District’s statement (in record).  She noted this was a de novo hearing and confirmed new evidence related to traffic could be introduced.  She said the Krispy Kreme project generated 2,550 daily trips and had two unsignalized access points off of Cornell Road.  She said in contrast the TSC generated 1,610 trips, with access at two signalized intersections on Cornell.  She said the Krispy Kreme development generated 60 percent more traffic than the TSC, but the BDR had not required comparable conditions of approval for traffic mitigation as was required of the School District.  She noted east-bound traffic on Cornell had to turn left across oncoming traffic, without a signal, to access Krispy Kreme, which would be difficult and dangerous.   She reviewed information on the Level of Service (LOS) (in the record) and noted that there would be an increase in cut-through traffic on 167th Place and Bethany Court, which could impact school bus operations from the TSC site.  She concluded that the applicant’s traffic analysis had not demonstrated that the proposed access configuration addressed the potential safety problem of the left-turning movements. Jerry Green, Beaverton School District, read Section III of the District’s statement (in record).  He stated the District was not opposed to this application.  He said the District wanted to ensure the traffic generated by the TSC was included in the TIA for Krispy Kreme and that the traffic generated by Krispy Kreme would not create negative impacts to the TSC site.  He reviewed the reasons the District made this request (in record), which included: 1) The TSC (bus and office facility) was a permitted use in that zone; 2) The District was planning to house over 65 buses on this site, along with vehicles from drivers and staff; and 3) This use generated approximately 600-1000 trips daily.  He asked that the application be denied.  He added that if the Council approved the application, the District requested the following: 1) The Council find that the combined traffic from the TSC and Krispy Kreme would not exceed the LOS requirement for the neighborhood’s transportation system; 2) The Council find that the traffic from Krispy Kreme would not create a negative impact on 167th Avenue or Bethany Court, or their associated intersections with Cornell Road; and 3) That the City impose the same traffic mitigation conditions as were imposed on the TSC application.   Coun. Stanton asked how many buses would operate from the TSC site. Green replied they anticipated 80-100 vehicles (40-65 buses and cars) if only the paved portion of the site was used; if the unpaved portion was used, they could accommodate more.  He said this location was mainly for buses leaving to pickup students and coming back, both in the morning and afternoon.  Beaverton City Council March 17, 2003 – Minutes Page 7 Coun. Ruby said he understood the District’s frustration.  He said he had no reason to advocate for or against a doughnut store.  He said he felt to some extent the District could have been in a better position than the City to address the City’s request by stating that it had to get its 65 buses on the site to build a record of traffic usage in that area for future developments.  He said neither the District nor the City looked at the issue that way.  He explained the Code requirements stated how traffic was to be considered and the City was not responsible for someone’s unintended consequences.   Green stated the District always worked cooperatively with the City and that would continue.  He said they discussed with their legal counsel the importance of mediation to find a resolution that all parties would accept.  He said there were other factors and other Code sections they believed the traffic study had not been addressed.   Coun. Stanton replied to Youngquist that LOS F was a regional standard that the City had not accepted (page 4 of statement), although it was accepted by METRO. Youngquist said Coun. Stanton was indicating there could be consequences from those levels of service.       Mayor Drake referred to the District’s request and said that the City would impose the same traffic mitigation conditions imposed on the TSC application, that the TSC application was denied.  He asked if the District wanted the same conditions imposed on Krispy Kreme. Green replied they felt it made sense that if the District had 1,610 trips and was required to do several things to mitigate the traffic, any developer coming in with 60 percent more trips should be asked to do the same thing.   RECESS: Mayor Drake called for a brief recess at 9:15 p.m. RECONVENED: Mayor Drake reconvened the meeting at 9:20 p.m. REBUTTAL: Robinson introduced Mike Swensen of Transpo.  He noted that on page 6, item 3, of the District’s statement, the District asked that the same traffic mitigation conditions be imposed on Krispy Kreme as were imposed on the TSC.  He explained that conditions were imposed to address criteria and to mitigate impacts (landscaping, hours of operation, traffic improvements).  He said the same conditions would not be imposed on this application as on the TSC because they would not be roughly proportional.  He said the District’s application was a vastly different operation; the conditions were tailored to respond to the mitigation required for that operation.  He said that imposing conditions on Krispy Kreme that were not warranted to respond to the impacts, would not be something any Council would be anxious to do.   Beaverton City Council March 17, 2003 – Minutes Page 8 Robinson continued by saying he agreed with Fischer that the Krispy Kreme application was on a 24-hour basis and generated more traffic, but the concern was when the traffic was generated.  He said the peak hours between Krispy Kreme and the TSC were starkly different.  The TSC had morning peak hours between 6:00 – 7:00 a.m. and generated 377 trips.  Krispy Kreme peak hours were 9:00 – 10:00 a.m. and generated 180 trips.  He said the reason the City imposed conditions on the TSC was that it generated substantial traffic during commute hours.   He noted the evening peak hours for the TSC were between 4:00 and 6:00 p.m. when it generated 247 trips.  Krispy Kreme’s evening peak hours were 7:00 – 8:00 p.m. when it generated 100 trips.  He noted this information was from the February 7, 2002, letter from DKS, the District’s traffic consultant.  He noted the times and traffic for each were very different and that was why it was not appropriate to impose the TSC conditions on Krispy Kreme.  Robinson read excerpts from pages 3 and 4 of the record concerning existing traffic which showed the TSC traffic could not be included because it was not approved.  He read from page 4 that the Code required  “existing traffic shall be measured within the previous 12 months.”  He sympathized with the District but noted the reality was the TSC site was not developed and per the Code, that use could not be counted.  He repeated that Section 60.10.10.7H was not included in the appeal but there were two sources that indicated on- site access was adequate.  He noted on page 302 of the record (the applicant’s TIA), it explained how the LOS and queuing at the two driveways were adequate.  He also noted on pages 117-126 of the record (Washington County traffic report) that Cornell Road was a County facility and it showed an adequate level of access safety.  He restated that he thought access safety should not be considered; however if it was, there was adequate evidence to show there was safe access. Mike Swensen, Transpo, traffic engineer, stated they received the necessary permits from Washington County for the shared access on the east side of the property; also, the access on the west side was approved.  He noted several mitigation measures were conditioned as part of those access permits.  He said that one of the conditions was that on the north side of Cornell Road, the fifth lane would be striped with right-turn drop lanes on both the east and west driveways.  He said this would allow safe access on Cornell Road.  In addition, he said the County required the construction of a median on the west access to prevent left turns into and out of the site at the west entrance.  He said the County staff decision  was that the driveways operated at a safe and adequate level.  Robinson asked that Council affirm the BDR decision and reject the appeal. Mayor Drake noted that page 2 of the District’s statement referred to DC 60.60.10.7H.  He asked staff to clarify that section in relation to the points of appeal.   Transportation Engineer Randy Wooley explained that Section 60.60.10.7F was the basis of the appeal and it related to trip generation and capacity.  He added that 60.60.10.7H related to safety considerations (geometric design, acceleration and turn lanes, site distance, etc.).  He noted that in the applicant’s original TIA, they addressed safety on page 294 of the record and on the other pages noted by Swenson in his testimony.   Beaverton City Council March 17, 2003 – Minutes Page 9 Wooley continued by stating the conditions adopted by the BDR addressed the issues in Section H.  He reviewed the conditions, as follows: Condition 71 required the widening for five lanes; Condition 73 required the addition of the west-bound right-turn lane at NW Rugs driveway; Condition 75 required the issuance of the County permits related to driveway spacing standards; Condition 77 addressed site distance and design; and Condition 78 related to internal circulation.  He said these issues were discussed in the Facilities Review process and with Washington County, and were addressed by these conditions.   There were no further Council questions. Mayor Drake closed the public hearing. Coun. Ruby MOVED, SECONDED by Coun. Stanton that Council deny the Beaverton School District’s appeal, APP 2003-0005, and uphold the decision of the Board of Design Review to approve BDR 2002-0148 at NW Cornell Road, as memorialized in Order No. 1567 dated January 31, 2003.    City Attorney Mark Pilliod asked if the Council was directing staff to prepare findings on the issues raised at the hearing and distinguish those raised in the appeal, which included the record and any staff response. Couns. Ruby and Stanton confirmed that was the intent of the motion. Coun. Stanton said she would support the motion.  She noted that the staff memorandum of March 3, 2003, laid out the issues per the Code.     Coun. Doyle said he supported the motion.  He said he was convinced they had followed the Code, as required.  He said he appreciated the School District’s participation in the concurrent discussion on this versus the TSC.  He said he also appreciated that the District participated in the mediation sessions.  He explained this was a cut-and-dried situation; the Code was followed.   Question called on motion.  Couns. Doyle, Ruby and Stanton voting AYE, the appeal was denied unanimously.  (3:0)   WORK SESSION: 03068 Draft Ordinance Amending the Site Development Ordinance City Engineer Terry Waldele offered to review the staff report and answer questions.       There was Council concurrence to proceed with questions. Coun. Stanton asked on page 25, Section G, asked why it did not apply to the “grading only permit.”  Beaverton City Council March 17, 2003 – Minutes Page 10 Pilliod explained this related to an enforcement proceeding the City held recently, when an applicant proceeded with grading before the site development or grading-only permits were issued.  He said the distinction recommended here was because the site development fee was higher than the grading-only fee; if there was a violation of the Code, the penalty was based on the full site development permit fee.      Waldele explained using the higher fee would send the right message.   Coun. Stanton asked what range they had for fines; she said she wanted a minimum on the penalty. Mayor Drake explained that was discussed internally.  He said there was no minimum, but Council had the experience to determine the merits of each case and the ordinance provided the discretion to set the penalty based on the circumstances of each case. Coun. Doyle said there was no minimum and the penalty could be whittled down as desired.  He said he appreciated the staff time on this issue.  Coun. Stanton said she appreciated 9.05.020B, where every possible combination was spelled out.    Coun. Ruby said he appreciated all the good work and the discretion now provided for setting the penalty.  Project Engineer Jim Duggan noted this dealt with fault and the potential damage or risk created by the work produced.  He noted in some prior cases the fee was disproportionate to the situation.   Pilliod noted on page 18 of the record, on 4.d. there was a typo; “property” should be “properly” and should be in front of the word administer.  There was no further discussion.   ORDINANCES: Second Reading: City Attorney Mark Pilliod read the following ordinance for the second time by title only: 03061 An Ordinance Amending Beaverton Code Chapter Two Relating to Boards and Commissions and to the Committee for Citizen Involvement (Ordinance No. 4247) Coun.  Stanton  MOVED, SECONDED by Coun. Ruby that the ordinance embodied in Agenda Bill 03061 now pass.  Roll call vote.  Couns. Doyle, Ruby and Stanton voting AYE, the MOTION CARRIED unanimously.  (3:0) Beaverton City Council March 17, 2003 – Minutes Page 11 ADJOURNMENT There being no further business to come before the Council at this time the meeting was adjourned at 10:00 p.m.   ______________________________ Sue Nelson, City Recorder APPROVAL: Approved this 5th day of May, 2003. _______________________________ Rob Drake, Mayor