BEAVERTON CITY COUNCIL REGULAR MEETING MINUTES MARCH 31, 2003 CALL TO ORDER: The Regular Meeting of the Beaverton City Council was called to order by Mayor Rob Drake in the Forrest C. Soth Council Chambers, 4755 SW Griffith Drive, Beaverton, Oregon, on Monday, March 31, 2003, at 6:39 p.m. ROLL CALL: Present were Mayor Drake, Couns. Betty Bode, Dennis Doyle, Fred Ruby, Forrest Soth and Cathy Stanton.  Also present were Chief of Staff Linda Adlard, City Attorney Mark Pilliod, Finance Director Patrick O'Claire, Community Development Director Joe Grillo, Engineering Director Tom Ramisch, Operations/Maintenance Director Gary Brentano, Library Director Ed House, Police Chief David Bishop, Development Services Manager Steve Sparks, Senior Planner John Osterberg, Utilities Engineer David Winship and Deputy City Recorder Catherine Jansen. PRESENTATIONS: 03070 Presentation by Marci Hosier, Executive Director, Tualatin Valley Television (TVTV) Marci Hosier, Executive Director, Tualatin Valley Television (TVTV), explained TVTV managed the Public, Educational and Government (PEG) media access channels for this area.  She reviewed the services they provided and reported last quarter TVTV aired twelve new series and thirty-seven locally-produced programs, logged 759 hours of volunteer time, and had over 6,000 programmed hours.  She said it was estimated that 512 reservations would be received this quarter to use TVTV’s equipment and facilities.  She explained the majority of their funding was from franchise fees, with additional income raised from grants, sponsorships and production services for governments, non-profits and educational institutions.  She noted they were located in a new facility at the Beaverton Arts & Communications Magnet Academy and she reviewed their training program for the public.  She listed the programs that TVTV covered for Beaverton which included the City Council meetings, the Beaverton Chamber Safety Luncheon and the Beaverton Candidates Forum.  She noted TVTV was awarded a grant of $119,000 to install a civic studio in the Forrest C. Soth Council Chambers and reviewed the services available to the City.  She noted their program listings were available on the Web at www.yourtvtv.org. Mayor Drake thanked her for the presentation. Beaverton City Council Minutes – March 31, 2003 Page ² 03071 Presentation of Shields and Swearing-In of Four New Officers and Two New Sergeants to the Beaverton Police Department Police Chief David Bishop introduced and swore in the new sergeants and officers. Mayor Drake and Bishop presented the officers with their badges.  The new officers were: Mathew Groshong, Jason Perrizo, James Patrick and Kenneth Terry.  The sergeants promoted from within the Police Department were Jim Shumway and Terry Merritt.   CITIZEN COMMUNICATION: Reverend Ja West, Beaverton, spoke of a holocaust of white-American, heterosexual capitalist Christians occurring nation-wide and of a plot to destroy the country.  She said she was the founder of Saint United Missions of God and Christ and she hoped the City would help her find a place to purchase to use as a house for the Lord.   COUNCIL ITEMS: Coun. Soth expressed his appreciation to everyone for their sympathy, encouragement and good wishes during his recent surgery.   STAFF ITEMS: Chief of Staff Linda Adlard noted there was a legislative hearing tomorrow on the Photo Red Light Bill.  She said it was Senator Starr’s bill that was introduced with unlimited intersections and a four second yellow light mandatory.  She said it now was amended to a limitation of six intersections for Beaverton and other cities in that category and twelve for Portland with the adoption of the State transportation standards for yellow lights.  She said staff would be in Salem tomorrow and would ask for eight intersections for Beaverton at that hearing.    CONSENT AGENDA: Coun.  Doyle MOVED, SECONDED by Coun. Stanton, that the Consent Agenda be approved as follows: Minutes of Regular Meeting of March 3, 2003 03072 Authorize the Mayor to Sign the Joint Water Commission – Hillsboro, Forest Grove, Beaverton and Tualatin Valley Water District Water Service Agreement 03073 Final Order Denying Appeal and Upholding the Board of Design Review’s Approval of Krispy Kreme Doughnuts at NW Cornell Road; BDR 2002-0148, APP 2003-0005 Contract Review Board: 03074 Consultant Contract Award – Hydrogeological Operational Services for Groundwater Aquifer Storage and Recovery (ASR) Wells  Beaverton City Council Minutes – March 31, 2003 Page ³ Coun. Stanton thanked staff for answering her questions.  She said there was one minor correction to the minutes that she gave to the Deputy City Recorder. Couns. Doyle and Ruby said they would abstain from voting on the minutes as they were not at that meeting. Question called on the motion.  Couns. Bode, Doyle, Soth, Ruby and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)  Couns. Doyle and Ruby abstained from voting on minutes of March 3, 2003. PUBLIC HEARING: 03075 APP 2002-0016, APP 2002-0017, APP 2002-0018 Salem Communications Appeal  Community Development Director Joe Grillo read a prepared statement defining the process to be followed for the hearing, including the various required disclosure statements (in record). Grillo asked if there was anyone present who wanted to challenge the Mayor’s or Councilors’ right to hear the matter that evening. There were no challenges. Grillo asked if there were any Councilors who wished to abstain due to impartiality. There were none. Grillo asked if there were any Councilors who had received any exparte contacts, the nature of such contacts and whether the contact had impaired the Councilor’s impartiality or ability to vote on the matter. Coun. Soth stated he did not have any exparte contact; he had participated in the Clean Water Services Task Force that studied the drainage basins for eastern Washington County.  He said he was familiar with the Oregon Episcopal School (OES) marshes and the surrounding area from that study.   Coun. Stanton stated she did not have any exparte contact but her boys had played sports on those fields in the past.   Coun. Doyle said he visited the site but he did not have any contact to disclose.   Coun. Ruby stated his familiarity was the same as Coun. Stanton’s. Mayor Drake said he visited the site yesterday; but no one had contacted him from either side of the issue.   Coun. Bode stated she did not have any contacts either. Grillo asked if there was anyone present who wished to challenge the Council’s authority to hear the matter. Beaverton City Council Minutes – March 31, 2003 Page 4 There were no challenges. Development Services Manager Steven Sparks reviewed the three appeals from Salem Communications and the history of the applications.  He noted since the December, 2001, submittal, the proposal had been revised twice by the applicant.  He summarized the proposal (in record) and noted the Planning Commission denied all three applications based on recommendations in the October, 2002, staff report.  He explained the Commission made the following decisions:  1) The Conditional Use Permit application was correct although the use was not compatible with surrounding uses based on the potential for Radio Frequency Interference (RFI) in the area;  2) The Conditional Use for height, evidence was not submitted that demonstrated the visual impacts of the 199-foot tower were mitigated to the degree feasible; 3)  The Tree Preservation Plan, evidence was not submitted that demonstrated the trees to be removed within the significant natural resource area and the significant tree grove were potentially hazardous.   Sparks explained the Planning Director appealed the three Planning Commission decisions in December, 2002, and since the appeal Salem Communications submitted a second revision to the proposed plan.  He advised the current proposal was for a 196-foot tower, with an underground wire radius of 100 feet from the tower base (originally submitted at 199 feet) and the number of trees to be removed was reduced from 48 to 13.  He noted the trees to be removed were in the significant natural resource area but not in the significant tree grove.  He explained the March 18, 2003, staff report reflected staff review of the revised proposal; staff found that each of the Planning Commission’s reasons for denial were satisfactorily addressed by the applicant’s second revised proposal.  He said staff recommended approval of appeals on the following basis: 1) The proposed use was a conditionally permitted use; 2) RFI was not an issue of compatibility and the FCC had sole discretion on matters concerning RFI; and 3) The proposed use had not adversely impacted the significant riparian corridor or the wetlands on the site (evidenced by letters from CWS, pgs. 236- 237; Division of State Lands, pg. 289; and Army Corps of Engineers Permit, pgs. 583- 607).  Concerning the CUP for height, he said the applicant submitted evidence that indicated that 196 feet was the minimum height required to operate within its FCC license.  He said the applicant proposed removing fewer trees and planting more trees.  He said these actions adequately mitigated visual impacts to the degree feasible.  He said the applicant submitted evidence that the thirteen trees to be removed were potentially hazardous.  He noted staff recommended approval of all three appeals based on the reasons stated at this hearing and facts and evidence in the record.   Senior Planner John Osterberg explained that prior to the hearing the applicant submitted an additional exhibit, which he distributed to Council.  He said it was a list of names, addresses and responses to letters that were mailed to surrounding neighbors concerning radio frequency interference.  He noted RFI was not a subject for this hearing because it was not a criterion for review; but since the applicant submitted it, staff distributed it to Council.   Osterberg noted for the record an e-mail submitted by Suzanne DeStephano opposed to the proposal. Beaverton City Council Minutes – March 31, 2003 Page 5 Mayor Drake asked the City Attorney if the information on the RFI should be accepted into the record since it was not a criterion under consideration. City Attorney Mark Pilliod advised the Council should not consider the preemptive issues, although it was considered by the Planning Commission and influenced their decision which led to the appeal.  He said the preemptive issue was appropriate, for the applicant needed to demonstrate he had addressed RFI issues, but it was not a matter for the Council to judge if the applicant complied with the FCC license.   Coun. Bode asked for a description of the hazardous trees.   Osterberg explained that at the Planning Commission’s hearing for the Tree Preservation Plan, staff found based on a letter from the arborist Mr. Halstead, that the trees were not hazardous.  He said that with the revised application Halstead submitted a revised letter (Exhibit 3.20) that said he was not aware people walked through the site by the trees and due to insect infestation, the trees were in danger of falling.   He said the trees could be hazardous due to their close proximity to pedestrian walkways.  He said the arborist based his original letter on the belief that pedestrians did not walk in that area.   Coun. Soth asked if the borers were the lilac borers. Osterberg noted the applicant could address the insect issue.  He confirmed there was an established insect infestation problem.    APPLICANT: Mark Whitlow, Perkins Coie, 1211 SW Fifth Avenue, No. 1500, Portland, Attorney representing  Salem Communications. He thanked staff for a well written and thorough report.  He explained that as they revised the proposal, they balanced concerns about the environment, aesthetics and view.  He said the tower would be added to boost the night-time signal and improve the quality of the radio broadcast signal so it would not interfere with other stations.  He said they also wanted to expand the area of the broadcast signal to pickup additional listeners.  He explained that KPDQ was a religious broadcast station and many people found it to be instrumental, educational and a convenient way to exercise their religion.  He noted there were several KPDQ listeners in the audience.  He explained that after the Planning Commission hearing the applicant went into the community to address the concerns voiced by the neighbors.  He said the applicant sent a letter (pg. 574 of the record) to the residents offering to fix their RFI problems.  He noted they talked with local school officials about the tower; how long the tower had been there (since 1947) and how it operated.  He said they spoke with the residents and asked them what they wanted for landscaping around the tower.      Whitlow reviewed the revised landscaping plan, Exhibits 3.26 and 3.27, in detail (in record).  He noted design review was the time to talk about landscaping details.  He stated they spoke with the Citizens for Environmentally Responsible Development, Mr. Andrea, The Fans of Fanno Creek and Dan Haggerty.  He noted they were concerned with what would happen during the construction process.  He explained lowering the height of the tower resulted in a reduction of the wetland impact area from .61 acres to Beaverton City Council Minutes – March 31, 2003 Page 6 .05 acres (92%).  He added that the vegetation impact area was reduced from 1.55 acres to 0.36 acres (76%).  He said the reduction moved the project out of the significant tree grove and the only point of impact left would be the wire connecting the two towers.   Rob Douglas, Vice President Real Estate, Salem Communications, said when they started this project they gave easements to CWS to cleanup and replant Fanno Creek.    He said they had an agreement with Mountclair School to construct a soft trail access to the natural habitat.  He said they granted these items as a good corporate citizen.  He said the second tower was important for it could reach a half million more people.   Whitlow explained that Salem Communications was not fully aware of the extent that people used the site until the project got underway.  He said this was okay with the applicant but the willow grove was decayed and needed attention.  Coun. Stanton noted the proposed tower did not have lights or a guy wire.  She asked about the FAA requirements for lights.   Douglas explained the FAA standard was a tower below 200 feet was not required to be  lit or painted.     Coun. Stanton stated that creating the soft trail was an excellent idea. Coun. Soth referred to Exhibit 3.26, and asked what the distance was from the property line to the new tower in all four directions. Douglas replied that from the east and north it was approximately 250 feet; the area to the south was about 200 feet and to the west it was over 500 feet.   Coun. Soth noted he was curious about the visual impact because the further away an object was, the less intrusive it appeared.   Douglas explained that this tower was  “state-of-the-art”  60 inches at the base and 24 inches at the top.  He said the lattice towers blended in well and would not be seen at a half-mile distance.   Coun. Soth noted the proposed landscaping indicated an addition of forty red cedar trees that would enhance the vegetation in the area and would provide more screening to the north. Douglas replied that was correct; they would be adding perimeter screening with the trees and landscaping around the base of the towers.     Whitlow referred to Exhibit 3.27 noting the photographs showed the views around the northern edge.  He said the additional plantings would help block the views of the existing tower and in almost every view there would be large existing trees that blocked the new tower. Coun. Soth asked if the existing vegetation was deciduous or evergreen. Beaverton City Council Minutes – March 31, 2003 Page 7 Douglas replied it currently was a mixture of both; CWS also had started planting new trees.     Coun. Soth asked for the approximate distance from the rear line of the site north to the nearest residential home on Exhibit 3.26. Whitlow said that was the backyard of the homes; but he did not know the lot depths.   Pilliod noted the setbacks from the property boundaries were on page 93.  He confirmed these were the radio tower setbacks.   Coun. Ruby asked for verification that the second tower would be the only way to enhance the nighttime broadcast signal. John B. Ehde, Vice President Engineering, Salem Communications, Camarillo, California, explained the Federal Communications Commission (FCC) had stringent guidelines on signal propagation.  He said KPDQ was licensed at 1,000 watts during the day and 500 watts at night.  He said the signal traveled differently during the day than at night; at night it skipped off the ionosphere and created interference.  He said the added tower would allow them to expand and redirect the signal to provide better protection. He said the extra power would allow them to increase to 900 watts which would be closer to their daytime coverage.       Coun. Doyle asked Douglas if he had done similar projects.   Douglas explained he currently had eight projects going on around the country; all involved tearing down an old tower and building a new one.  He said this was the only project where there was an existing tower with an addition.  He said it would be going from a non-directional signal to a directional signal at night; the purpose was to maintain the audience base in the evening. Coun. Stanton noted the form letter (pg. 574) to residents asking them to respond if they experienced radio interference problems.  She said she appreciated the follow- through and was glad to see how many residents had responded.     Douglas said they were committed to correcting the problems.  Coun. Stanton asked if residents called the FCC to complain about the tower. Douglas replied they typically called the radio station.  Ehde said they received letters from the FCC about complaints concerning interference and asked the station to correct the problem.  He said the station corrected the problem and notified the FCC.    PUBLIC AGENCIES: Nora Curtis, Engineering Division Manager and Douglas Gates, Project Engineer, OES Marsh Enhancement Project, represented Clean Water Services.  She explained if this project was approved, it was required to follow the City’s and CWS’s regulations for Beaverton City Council Minutes – March 31, 2003 Page 8 erosion control and sensitive-area impacts.  She stated CWS was neutral concerning the proposed project.  She added CWS was interested in the implementation of the tower installation and how it could coordinate with the Marsh Enhancement Project.  Curtis explained the stream enhancement project would improve the local conditions of Fanno Creek.  She said construction was scheduled to begin in the early summer of 2003.   Curtis explained CWS coordinated its design efforts with affected property owners, especially Salem Communications.  She said CWS had an agreement with Salem Communications that identified the work to be done and coordinated efforts in areas where the two projects overlapped.  She said if the second tower was approved, the ideal construction time would be the summer of 2003; this would allow grading, revegetation and ground wire installation in the same construction and planting season.  She noted coordinated construction activities and schedules would minimize costs for both projects and avoid future disturbance of newly enhanced areas.    Coun. Soth asked about the construction window.    Curtis replied that the window was from July 1 to September 30; any work that would be done in the wetland area had to be done then or they would lose that window for the year.   RECESS:   Mayor Drake called for a brief recess at 8:14 p.m. RECONVENED:   Mayor Drake reconvened the meeting at 8:25 p.m. TESTIMONY IN SUPPORT: Maureen Wedge, Lake Oswego, stated she supported KPDQ; she felt it would be an asset to the community.  She noted over 100 million people had died in the 20th Century for what they believed and free speech could be controlled by making it impossible to find a place for radio and television towers.  She said every effort should be made to accommodate free speech, and after listening to staff presentations and Salem Communications, she felt that was being done.  She said it would be a plus to the environment in that area.     Brad Christiansen, Lake Oswego, said he represented KPDQ listeners.  He read a letter from Michael Holsgang, a Beaverton area resident that was in response to a letter sent by Michael Andrea of Heller Ehrman.  He said the letter from Mr. Holsgang spoke about the resources that KPDQ provided to people in the community, and strongly supported KPDQ and the expansion of its audience.  He said he appreciated the environmental concerns, but the goal was to come to a compromise and understanding of preservation, business needs and desires.  He said there continued to be a need in Oregon for business growth and development.   TESTIMONY IN OPPOSTION: Beaverton City Council Minutes – March 31, 2003 Page 9 Charlie Haugh, Beaverton, Willowmere resident, said he bought his house six years ago because of the wetlands.  He said the purpose of the height limit was to limit the visual impairment from any building, particularly in a resource area.  He noted the vegetation screened the first 30 feet of the tower; not the remaining 166 feet.  He said the project diminished his property value and asked that Council reconsider the staff recommendation.   Coun. Soth asked Haugh if he had any appraisals that supported his claim of diminished property value.   Haugh said he did not have an appraisal but he had worked in property development for fifteen years and had a lot of experience in this field.    Coun. Bode asked Haugh when he purchased his home if he could see the first tower. Haugh responded that he could see the tower.   Jeff Kleinman, Portland, Friends of Mountclair Marsh, said the Friends were opposed to the appeal and asked that the record be held open for seven days.  He said the application was substantially changed from the previous application and a new application needed to be filed and heard under current applicable criteria.  He stated under Code Section 20.05.15.2.B conditional uses in a residential neighborhood were for utility substations and related facilities.  He stated this was not a utility, not a substation, not a utility substation nor a related facility.  He referred to Code Chapter 90 that defined a utility as infrastructure that was primarily underground.  He said the definitions did not fit this use and he thought the Planning Commission relied on a 1996 interpretation that dealt with public not private utilities. Kleinman said they also believed there were Code violations.  He said they disagreed that the issue of RFI should not be before Council and it was the burden of the applicant to prove RFI was pre-empted.  He read from the Federal Communications Act, Section 302A, “In addition to any other remedy authorized by law” and said from this they believed the compatibility requirements for conditional uses included RFI issues.  He noted the Comprehensive Plan Residential Policy, Section 3.4.3.B, provided that all on-and-off-site improvements in residential areas should add to the character and quality of the areas.  He said there wasn’t any evidence this project supported that.  He suggested as an alternative adding the second tower to the first, to make a single tower.   Coun. Stanton asked him to clarify his quote.  Kleinman repeated the quote and said during the record-open period, they could provide a copy of the entire section for review. Coun. Doyle asked if he had submitted written testimony.   Kleinman said he had not for he was involved late in the process. He said he intended to submit his material in the record-open period. Beaverton City Council Minutes – March 31, 2003 Page 10 Marilyn Durkin, Portland, Willowmere resident, said she sold residential real estate for fifteen years and knew house values were affected by their proximity to towers.  She said she had sales fail due to research about the  towers.  She said she understood the Council supported collocations (attachment of other features to towers, such as satellite dishes) and asked for reassurance that would not happen in this case.  She asked that a local FCC number be provided to report RFI problems.  She said she received the letter from Salem Communications concerning reporting problems, but it arrived on the day it was to be returned, so she had not contacted them.  She asked the supporters of the project if they wanted a tower in their back yard.  Mayor Drake explained to Durkin that one Council could not bind another Council on a commitment.   He suggested the applicant could provide her with the number for the FCC. Coun. Bode confirmed Durkin sold real estate for 15 years and asked when she bought her house.    Durkin replied she bought the house in 1998 and the tower was there.  She added that two years ago they added an addition to the house and had to go through many hoops through the County, though her house was not as near to the wetlands as this project.  She added that the wetlands issues were County and State issues also. Coun. Soth asked Durkin if she would be satisfied if the applicant was required to give the residents the name and local number of someone from Salem Communications to whom they could report RFI problems.   Durkin said that was reasonable and she felt each tower site should have the FCC number posted on it.    Coun. Bode noted one of the pictures of the tower site showed the number was posted.   Durkin stated she had not been to the tower site for eight to nine years.   Coun. Stanton asked Durkin in what other areas did she sell property and what types of towers were located in those areas.   Durkin said she was speaking about the West Hills area. Coun. Stanton asked for the engineer’s comment during rebuttal, on whether or not they could co-load the radio towers.     Chris Palmedo, Portland, said he opposed the tower and read excerpts from letters in opposition to this project that were already in the record.  He added that the sign posted at the tower could only be seen by people driving to Mountclair School; it was not on the public roadway.  Dave Bosworth, Portland, said it was important to consider the community and the values of the station.  He said he lived on Dogwood Lane 1000 feet from the tower and he distributed a picture of the tower that was taken from his front yard.  He noted the Beaverton City Council Minutes – March 31, 2003 Page 11 whole area was in the flood plain and the flooding was worse every year.  He said the tower should not be in the wetlands; for the tower was visual pollution.  He said this project had not added any value to this area.     Coun. Bode asked at the time he purchased his home were the towers and wetlands there.   Bosworth replied he bought his house in 1989 and they were there. Dean Waters, Portland, Willowmere resident, said he was speaking for Gail Halladay who had to leave the meeting early.  He said the dangerous tree issue was not a strong argument and should be deleted.  He said the religious aspect of the station was irrelevant because the developer’s goal was financial; it was inappropriate to bring up religious aspects because the broadcasting rights could be sold to a non-religious station.  He stated the right to free speech was not being impinged; there were many avenues available to increase free speech.  He said the tower was there when they bought the house but this proposed tower would be closer to them and it was unnecessary.   Mary Ann McDowell, Portland, said she bought her house last year and the proposed site was outside of her kitchen window.  She said she sold real estate for sixteen years and she would not have paid the price she had for her house if she had known there was going to be a second tower.  She said she heard that if the second tower was approved, there was a loophole in the law that precluded any public participation if more towers were added.  She asked for staff comment for adding towers was her biggest concern.  She noted the ground on which the tower was to be built was in a high earthquake alert zone; she questioned the safety since school children used that area.  She asked staff to comment on the safety issues.   Coun. Soth asked where her house was located. McDowell said she lived on the south side of the back of Mountclair and the distance to her house was 250 feet plus the length of the playfield. Coun. Bode confirmed McDowell purchased her house in September, 2002, and noted this process started before then.   McDowell explained she had not learned of the tower until after the property transaction had closed; the seller had filled out a disclosure form that indicated he had no knowledge of the tower therefore it was not revealed to her.  She agreed it was a public record at that time.   Paul Kaptur, Portland, said he worked in the utility regulation industry for many years.  He said Salem Communications was not a utility. He said a utility had a customer base, a contractual economic base that allowed the utility to offer service or goods, and was obligated to serve.  He said that was a structure long held under public and private utilities going back to the Private Utility Holding Act of 1928.  He said Salem Communications did not have an obligation to serve; if they stopped broadcasting, they were not obligated to provide that service.  He noted customers did not pay for Beaverton City Council Minutes – March 31, 2003 Page 12 that service and were not obligated to pay for or receive the service. He said Salem Communications was an entertainment facility.   Coun. Bode asked Kaptur to clarify his definition of “utility.”  She noted the first tower went up in 1947 and someone found it was compliant with the 1928 definition.   Kaptur replied that under the conditional use proposal staff said this was a utility because it was similar to a cell tower.  He said cell towers were used for telephone  communication and were regulated and considered a utility under the Communications Act.  He said based on his expertise, a radio station was not a utility.  He said he had worked 20 years in the private and public sectors, 10 years in the regulatory section, and now worked for the Bonneville Power Administration.  He said he could not argue in any form that Salem Communications was a utility.  He said it was an entertainment marketer, raising revenue through advertising only and it did not have an economic agreement with its customers, so it could not be called a utility. Coun. Stanton referred Kaptur to Chapter 90 of the Beaverton Development Code which delineated the difference between a public and private utility.   Kaptur reaffirmed his position that this was not a utility and noted he had made the same argument at the Planning Commission hearing.   Paul Hogan, Portland, said he was a Mountclair parent and Vice Principal at Jesuit High School.  He said his primary concern with the second tower was the safety of students at Mountclair.  He said he didn’t have any issues with the Christian nature of the radio station.  He passed out copies of a photograph of Mountclair School with the existing tower behind the school.  He said he was concerned about the nature and need for a second tower.  He said it created an intersection of multiple beams known as RF hot spots.  He read from an FCC publication that conductive objects that caused RF hot spots included metal playground equipment.  He noted the photograph showed children playing on metal playground equipment at the school, which was why the second tower was a concern.  He said the second photograph showed what the second tower would look like; he was not sure the western red cedars would screen that tower.   Coun. Bode stated she could accept the first picture of the existing tower, but not the second picture of the proposed tower because it had not come from an engineer and was not certified.     Hogan explained the photograph was created by Burt Jergens, an expert in this field and was consistent with the plans.  He acknowledged Jergens had not signed and verified the photograph.   Coun. Stanton asked Hogan if the FCC regulations he quoted concerning metal playground equipment indicated distances from the tower to metal objects.   Hogan read from the FCC publication Section 1.42 “An RF hot spot is a localized area where the RF field strength is substantially higher than the surrounding area.”  He said it did not indicate distance.  He said the Mountclair school committee talked at length about the ten-foot fencing around the current tower and Edhe testified that they only let Beaverton City Council Minutes – March 31, 2003 Page 13 their employees into that area a few minutes at a time.  He noted at the commission hearing the Salem Communications staff indicated they did not know how far the hot spots extended beyond the ten foot fence around the tower.  He said he was most concerned about the safety implications since it was not known how far the hot spots extended.  He said he also questioned which direction the beam would travel. Mayor Drake noted Hogan submitted the photographs for the record along with a letter from John Edhe to John Osterberg. Coun. Doyle asked Hogan if he discussed this with applicant. Hogan replied he had not; it was discussed at the local school committee meeting. Coun. Bode asked Hogan if it was his understanding that both towers operating simultaneously would create the hot spot. Hogan replied that was his concern. Coun. Bode asked for clarification concerning the power levels during rebuttal.    John Hatch, Portland, principal broker, Windomere Real Estate, said he was testifying on behalf of the Citizens for Environmentally Responsible Development concerning the effect the tower had on real estate values.  He said he had direct experience with marketing properties in the Sylvan area where there were towers.  He said the values in this area were already somewhat affected by the existing tower and the proposed additional tower negatively affected the values in the immediate area and the perceived livability.  He noted the views from some homes would be spoiled which affected the value.  He concluded that realtors were obligated to disclose these features and their effects.     RECESS:   Mayor Drake called for a brief recess at 9:28 p.m. RECONVENED:   Mayor Drake reconvened the meeting at 9:40 p.m. Daniel Heffernan, Portland, said he opposed the tower because it was not a utility; it had not met the City’s definition for a utility.  He said if it was accepted as a utility in the R7 zone, it was a utility in all City zones and would be allowed everywhere.  He said the standard that should be applied was one of location; was this facility necessary because it had to located near urban development.  He noted all examples used in the Code (water, electricity, etc.) served the development.  He said a radio broadcast facility did not need to be close to residences, or any use in the City, to provide the service.  He stressed it was not a utility under that standard.  He stated the Code had not intended that this be defined as a utility in every zone.  He suggested sending this back to the Planning Commission to develop clear and objective criteria to approve the project, but deny it on the basis that it was not a utility.  He said the project should go back to “square one” and be evaluated as a commercial use not as a utility.   Beaverton City Council Minutes – March 31, 2003 Page 14 Doug Hunt, Beaverton, Northwest Steelheaders Resource Director, said he opposed  setting a new radio tower in the OES Wetlands and Mountclair Marsh.  He said this area was a significant natural resource and scenic area.  He noted his concern was the potential loss of native fish in Fanno Creek (steelhead and cutthroat trout).  He said U.S. Fisheries had confirmed that surveys had been taken of Fanno Creek that established the presence of these fish.  He noted the towers called for 120 copper radials buried in the floodplain and the boundary from the tower would be 260 feet which transected the stream.  He said copper interfered with the homing instinct of fish and asked if there was arsenic, mercury and lead in the soils.  He explained that fish were the most sensitive index of the health of a stream and native trout were the most sensitive to environmental changes.  He concluded that streams were worth saving for health of the entire area.   Coun. Stanton explained to Hunt that the boundary was decreased to 100 feet; therefore it would not flow into the creek.   Coun. Doyle asked Hunt if he had submitted prior testimony.  Hunt said he submitted a letter earlier but was not at the Planning Commission hearing.   Mayor Drake noted Elizabeth Minthorn, Beaverton, submitted a testimony card in opposition to the project. Brad Baugher, Portland, Fans of Fanno Creek, explained this site was part of a one- half mile continuous natural area that started at Oleson Road (Bauman Park) and went to Nichols Road (OES Marsh).  He said this site was designated a Habitat of Concern, which gave it greater weight when determining development decisions for this area.  He said the Fans were working on renovating this area and felt this entire section was extremely important and needed to stay as protected as possible.  He displayed native cutthroat trout that died in a pollution spill in Fanno Creek a few years ago.  He said they were found in the area just below the current site.  He stressed there were spawning and rearing grounds for trout in that creek.  He said the Fans were concerned about the riparian stand of trees.  He said they had spent thirteen years planting thousands of trees in the Beaverton area to bring the natural systems back up to par.  He said the hazardous trees marked for removal were valuable wildlife habitat; they were a growing, maturing, decaying system that worked with the rest of the system to promote the area’s health.  He said the proposed tree planting would not mitigate this impact.   John LeCavalier, Portland, said he represented Jim Labbe, Portland Audubon Society, and submitted Labbe’s letter for the record.  He said this site was a significant natural area  in the Metro region and one of the most important areas in the Fanno Creek watershed.  He commended the applicant for dealing with the guy wire issue but said it was not enough.  He said the impacted area was home to the small creatures that fed the larger animals and created a stable and diverse system.  He said the goal of the planting over the years was to bring the area to its present state; a mixture of older and younger systems.  He noted the perimeter tree planting was visual mitigation but it Beaverton City Council Minutes – March 31, 2003 Page 15 would not mitigate the impact on the stands.  He noted thirteen trees might seem small, but when looking at the whole system there was value in the small pieces.     Mayor Drake asked if willows were native to the area. LeCavalier replied that some were natives; however there were many species of willows.    Mayor Drake noted CWS was embarking on an aggressive program to remove non- native vegetation and clean the area; there would be some disruption which could not be avoided.  He asked if plants other than trees could be planted outside of the ring, possibly on a three-to-one ratio to help duplicate what was already there.   LeCavalier replied the CWS restoration plan had not disturbed that stand.  He said that over time that could be replicated, but his opinion was that it was a time tradeoff.  Mayor Drake noted that in trying to find the common ground between the value of the tree stand and the balance of need, Metro had only talked about voluntary replacement.  He suggested more aggressive plantings with larger trees.   LeCavalier said he thought it was difficult to mitigate real time with large expensive trees.  He noted willows grew fast and it was probably better to plant small trees that would grow quickly.  He said this was such a significant area, he questioned if this was the place for another radio tower from ecological and aesthetic points of view.  He said Audubon’s position was that it was not.   Mayor Drake said he believed good preservation and business were both possible in Oregon and this could be that opportunity.   LeCavalier responded he agreed with Mayor Drake in principle; but given the size of this area and its contiguous units of systems it was atypical.  He said his opinion was to be very careful of what was allowed to occur there. Baugher stated that dealing with it as a functional unit, one needed to be very careful.   Coun. Stanton referred to the Audubon Society’s letter in opposition to the project.  She asked if there was a meeting where the members voted on this issue.   LeCavalier said Audubon gave the responsibility for urban conservation issues to certain staff people who were given the latitude to speak for their members.   Kelly Palmedo, Portland, said she believed the Salem Communication’s application was incomplete.  She stated they did not have a DSL permit.  She noted the applicant said one was not needed because they were moving less than 50 cubic yards of soil (Exhibit 2.3).  She said the foundation plans indicated 39.58 cubic yards of soil would be moved without the tree removal and radials.  She said the US Army Corps Permit, the CWS Permit and the Salem Joint Corps Permits were inaccurate as they denied the presence of endangered species even though they were documented by their surveys.  She said the environmental assessment and environmental impact statement were incomplete as they failed to include endangered or threatened species and failed Beaverton City Council Minutes – March 31, 2003 Page 16 to address the impact on wildlife and the hydrology of the soil.  She said the applicant had not considered more expensive alternatives that were less invasive to the neighborhood, such as diplexing on the original tower or new technologies to construct towers under 100 feet.  She said she was concerned that about collocation on the new tower; she said Condition 6, page 133, limited attachments extending more than six inches from the exterior of the tower.  She said this should be further limited to six inches in any direction and dimension.  She asked that the record remain open for seven days since new testimony had been given.   Coun. Bode complimented Palmedo and asked about her background in this area.    Palmedo replied she studied biology and was an owner of part of Pendleton Creek (a tributary of Fanno Creek) and was working on its restoration. Laurie Newton, Beaverton, Citizens for Environmentally Responsible Development, expressed concern that this was being considered for a residential zone and that the arborist’s revised report was given too much credibility by staff.  She reviewed the history of the arborist’s report and said the revised report should not be relied on to be accurate.  She said it came in late and the Citizens were unable to respond with their own report.  She said she was not unsympathetic to Salem’s plight for she worked for a large corporation that sited new plants.  She said Salem Communications was not reasonable in purchasing that property; the site was not posted until after the Planning Commission denied the Conditional Use Permit.  She said the tower would be incompatible with the neighborhood; it would not add to the livability of the neighborhood or increase property values.  She said it would allow people to listen to Christian broadcasting outside of the neighborhood where the tower would be built.     Mayor Drake asked Newton if she knew whether the area was posted.   Newton explained she drove out to the site one day and there wasn’t a sign but the next time she was at the Mountclair School she noticed the sign.  She said that occurred after the October decision, about the same time the letters went out to the residents. Mayor Drake noted the areas were traditionally posted; the City had an aggressive notification practice of notifying residents within 500 feet.  He said unless she went to the school on a regular basis she wouldn’t know if it was posted.  He asked if she visited the school regularly.   Newton said she did not, but the sign was not there one day and appeared later.  She speculated the sign was posted after the Commission denied the permit and one of the reasons for the denial was RFI.  She said the applicant wanted to show the Council they were taking steps to communicate with the neighborhood. Mayor Drake reiterated that RFI was not something the City regulated; whether the sign just went up or not had little bearing on the criteria the Council had to decide at this meeting. Newton said she felt this issue was before Council and she did not believe it was pre- empted by the FCC. Beaverton City Council Minutes – March 31, 2003 Page 17 Joe Schoen, Portland, Arranmore resident, said he was a member of the Homeowners’ Association Board and came on a fact-finding mission as he did not believe the residents knew a lot about this project.  He said he was concerned that if this project was approved there would be additional towers or further desecration to that area.  He said he was not speaking for the Association and asked if this went through CPO 3 as he had not seen anything in the CPO’s publications.  He said he hoped this could be postponed so he could take information back to the Board.   Mayor Drake explained an additional extension was probably not possible.  He noted this was extended before and the City was operating under the 120-day rule.  He noted the applicant would have to grant an extension.   Mick Omun, Portland, said he bought his house five years ago; it was at the north end of the wetlands.   He said the broadcast signal overpowered every communication in his house.  He said they put their house up for sale last month and had people inquire about the radio transmission.  He said it was a difficult situation; they invested in one tower and not two.  He said the native wildlife was disrupted and noted this was a very emotional issue.  He said he felt it was obvious the Council had made up their minds;  he asked that Coun. Bode step down from the vote because he felt she had a particular interest which he thought was obvious from the questions she had asked.     Mayor Drake stated that Omun was out of line and did not have the right to ask Coun. Bode to step down now.  He stressed that Coun. Bode declared she did not have any conflicts and his accusations were inappropriate. Omun apologized and said he based his decision on what he heard tonight. Mayor Drake stated Coun. Bode’s questions were appropriate; there was nothing out of line concerning her attitude.  He said if he thought there was he would have advised her but he did not see a conflict or a bias.    Omun said he based his comments on the interrogatory questions to citizens.   Michael Andrea, Heller Ehrman, Portland, attorney, stated the testimony heard on the impacts related directly to Comp Plan Criteria 3.4.1, 3.4.2.11, 3.4.3A, 3.4.3B and Development Code Section 40.05.15.2C, Criterion 3.  He asked that the record be held open for seven days for new evidence was presented; specifically a list of contacts submitted by Salem Communications.  He said the Citizens for Environmentally Responsible Development which he represented, maintained that a radio tower was not a utility station or installation as determined in the Code and therefore, was not a permitted conditional use.  He said the staff report acknowledged it did not fit within the definition of a utility and tried to define it as a private utility.  He said that was erroneous and it was not a conditional use that could be permitted.   Andrea noted that page 25 of the staff report said that under the Citizen’s interpretation, “cable television, cellular towers, telephones, natural gas and all related equipment would be prohibited.”  He said that was incorrect and it was not what they were advocating.  He said with the exception of cellular towers, each of those utilities listed were included in the definition of a private utility and were permitted conditional Beaverton City Council Minutes – March 31, 2003 Page 18 uses.  He said they were also of a different character as expressed in earlier testimony.   Andrea noted on page 31 of the staff report it said the development of a radio tower in a residential area was not a residential development and was exempt from conditions governing residential development.  He said staff suggested the only development that was residential development was the development of homes.  He said staff then acknowledged on page 37 that the radio tower was a residential development.  He said accepting that argument would subject this use in a residential area to less scrutiny than a home; he felt that didn’t make sense.   Andrea noted that on page 39 of the report staff it stated that Comprehensive Plan Sections 7.3.1.1., 7.3.2.1, 7.3.3.1 and 7.4.4.1 were not applicable because they had not become effective until February, 2002.  He said that was incorrect and that on page 12 of the report it was noted that the Salem Communications applications were not complete until June 12, 2002.  He said that even if the applications were complete on December 26, 2001, Sections 7.3.1.1, 7.3.2.1 and 7.3.3.1 were adopted on May 22, 2002, by Ordinance No. 4156 and Salem Communications addressed these sections in its applications, so they applied.  He thanked the Council for their consideration. Mayor Drake confirmed that Andrea was representing the Citizens for Environmentally Responsible Development.  He explained this was a de novo hearing which meant that new testimony could be heard tonight.   Andrea agreed, but said there was a difference between what was presented in earlier testimony and what would be presented tonight.   He said he requested the record be kept open, so they would have the opportunity for rebuttal. Mayor Drake said he would ask the City Attorney to comment on that after the public testimony.  Mayor Drake confirmed there was no additional public testimony.   RECESS:   Mayor Drake called for a brief recess at 10:35 p.m. RECONVENED:  Mayor Drake reconvened the meeting at 10:44 p.m.  REBUTTAL: Douglas said when this project was started two years ago he read every letter and the project was revised to address those concerns.  He agreed with the Mayor that this was a balance of needs and reiterated their efforts to work with everyone.  He stated they had their Army Corps of Engineer’s Permit that indicated the project did not have any impacts on fish. He said the project now impacted 2500 square feet of property reduced from the original thirteen acres.  He noted they worked with the School District and gave them access to the site.  He said the only alternative would be no tower and Beaverton City Council Minutes – March 31, 2003 Page 19 that was not a balance.  He stressed they needed to locate the tower on that site; it had to co-exist and be in unison with the existing tower that had been there since 1947.  He explained they would like to come together but that did not work with AM propagation.  He added they were not planning on putting any more towers on that site or locating any satellite dishes or cells on the tower.  He said he personally went door- to-door and they sent out 300 letters to contact all the residents.  He said approval of the tower was important from a commercial and human standpoint; to reach people outside of the existing transmission area.  He noted they also provided service to local ministries, so that local services could be broadcast.  He stressed they tried everything they could and complimented staff for their help.   Whitlow said they were relying on the staff report (pages 21-26) regarding use interpretation; the law was clear and there was broad discretion on interpretation of the City Code.  He said the FCC preemption issue was covered in the material before Council.  He said regarding decreased market value the neighborhood moved to the tower, therefore  it did not make sense that the tower depreciated the values. He noted this was an exclusive neighborhood with stable values and the second tower would be less visible.  He referred to the arguments about not allowing development in the significant natural resource area; he noted in the Code these areas were intended to balance economic interests and resource protection by permitting development to the extent that these features were incorporated into the area and any loss would be mitigated.  He noted this was not a no-build zone or a conservation area.  He said the tower preserved the area from development in the past when the rules were different.  He stated it was appropriate to have a balance of development and preservation.  He noted there was a net benefit; they removed a few trees but added many more.  He said the replacement ratio was six-to-one and exceeded CWS standards.  He explained they do not need a DSL permit as the excavation for the tower was not in the jurisdictional wetlands per the CWS assessment.  He said they would provide a local phone number and contact from Salem Communications for the community.  He noted the arborist letter was received December, 2002, which allowed time for comment.    Whitlow referred to Code Section 40.75.15.1.C.3.A,  “The Planning Director should review the request to remove vegetation within a significant natural resource area, and determine the impact to the resource.  If the permanent impact was negligible or minor, the Director shall approve the application.’” He said he thought the original application was not minor; however with the revised project that went from 80 trees to 13, there was a case to be made that the impact was negligible when mitigation was included.  He said the idea that they were subject to the new Code was contrary to State law; they were subject to the law in place when they first applied.     Coun. Soth referred to the letter to the Mountclair School principal concerning access for students to the path.  He asked if there was access to the property off the path or just on the path.   Douglas explained they granted a designated soft trail on the southern portion of the property, below the original tower and across Fanno Creek, so people would not run around the site.  He noted CWS wanted the public to access the creek area to see the improvements.     Beaverton City Council Minutes – March 31, 2003 Page 20 Coun. Stanton asked if the towers operated in tandem or would be running different hours. Ehde explained during the day they operated from the tallest tower, as they do now, at 1,000 watts.  He said from sunset to dawn they switched to lower power; from 1,000 watts to 900 watts and the 900 watts were distributed 750 in the current tower and 150 in the new tower.  He said they were not putting out more power; nor creating hot spots.  Mayor Drake asked the City Attorney to comment on the request for continuance and the RFI issue.      Pilliod advised that on the request for continuance the statute made a distinction between an initial evidentiary hearing and not an evidentiary hearing, which in this case was the appeal to the City Council of the Planning Commission decision.  He said if this had been a matter in front of the Planning Commission, the continuance was required if requested.  He noted that under the 120-day rule, the time for making a decision expired on April 14th;  Council had two weeks to announce a decision and adopt written findings, which were not yet prepared.  He said it was his opinion that keeping the record open was discretionary and based on the time frame in which the Council had to make a decision; it was flirting with a mandamus remedy if it continued the matter without the applicant making the request.      Pilliod said concerning the radio interference issue, there were two Federal Court of Appeals cases which concluded the FCC statute had authorized the FCC the exclusive power to regulate radio interference and local jurisdiction’s authority was pre-empted.  He said he was convinced if the Council reached a decision to deny based on its concerns with RFI, such a decision would be subject to Federal claim and potentially overturned by District Court.  He said it was more important to make the decision based on criteria in the Code and avoid those that were not an appropriate basis for decision. Mayor Drake confirmed there were no further questions for staff.   Mayor Drake then closed the Public Hearing. Coun. Soth MOVED, SECONDED by Coun. Ruby, that the City Council grant all three of the appeals (APP 2002-0016, APP 2002-0017 and APP 2002-0018, Salem Communications) and reverse the Planning Commission’s decision for denial, based upon the applicant’s amended proposal and the findings of staff in the amended staff reports of March 18 and March 24, 2003.   Coun. Soth noted a number of issues were raised.  He reiterated that RFI not a province of the Council.  He noted that future use of site or change in ownership was purely speculative.  He noted on the wetland issue, the applicant had the approved Army Corps of Engineers Permit and approval by CWS which was the overseeing body for work in any of the drainage basins in this area.  He stressed the work in the wetlands was regulated from start to finish, including the extent of the work, the timing and the agencies permitted to do the work, subject to supervision and inspection by those entrusted with the responsibility.  He noted there was concern about decreased Beaverton City Council Minutes – March 31, 2003 Page 21 property values, though there was no evidence of a definitive nature to prove values were decreasing; it was a matter of perception, not fact.  He suggested tax statements be watched to determine if assessments or market values were to decrease.  He said he felt all the concerns noted were answered and the revised plan, with the huge reduction in construction space, was a compliment to the applicant.  He said he wanted to add a condition to require the applicant to send a letter to the residents giving a telephone number and name of a local contact for Salem Communications that they could call when problems occurred. Mayor Drake said he would take Coun. Soth’s request for the letter as a friendly amendment.   Coun. Ruby said he agreed to the amendment.   Coun. Stanton said she supported the motion because she knew the City was preempted by the Federal Government and RFI could not be considered.  She explained unfunded mandates and preemptions were issues local officials had to live with.  She said she believed Criterion 1 was met because she accepted the definitions in Code Chapter 90.  She said Criterion 2 was met with the revised and augmented staff report, which she appreciated, and she believed Criterion 3 was met.  She asked to add a condition of approval that the applicant would provide the soft trail path for the school.     Mayor Drake asked staff if this was required at design review. Pilliod noted that since the applicant offered this, it was a good time to incorporate it into Council’s decision, with the details to be worked out in the design review process. Coun. Soth and Coun. Ruby agreed to the amendment to the motion to incorporate a soft path from the parking lot to Fanno Creek into the conditions of approval. Coun. Bode noted the project went through three changes.  She stated everyone would be better served if the most excellent presentations were made to the Planning Commission and settled there.  She noted it was also better if residents became involved in the beginning when notices were first received.  She said it would have been great to see this plan presented at the beginning.     Mayor Drake repeated the motion was to grant all three appeals based on the applicant’s amended proposal and any additional material presented at this hearing, which included what was in the packet, and reverse the Planning Commission’s decision for denial, and with the addition of two conditions: 1) Notify people within the 500 foot notice area, and anyone who testified, of a local Salem Communication’s phone number and contact person; and 2) Add a soft path from the parking lot to the creek, with details to be worked out at design review. Pilliod asked the Council if the recommended conditions as contained in the most recent staff report were part of the decision. The Councilors indicated that was their intent.   Beaverton City Council Minutes – March 31, 2003 Page 22 Question called on motion.  Couns. Bode, Doyle, Ruby, Stanton and Soth voting AYE, the MOTION CARRIED unanimously.  (5:0) ORDINANCES: Suspend Rules: Coun. Soth MOVED, SECONDED by Coun. Doyle that the rules be suspended, and that the ordinances embodied in Agenda Bills 03076 and 03077 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: City Attorney Mark Pilliod read the following ordinances for the first time by title only: 03076 An Ordinance Amending Ordinance No. 2050, The Development Code, by Modifying Existing Text and Adding New Provisions for the Implementation of Regulations and Standards for Wireless Communications Facilities (Wireless Communications Facilities Text Amendment); TA 2002-0001 (Ordinance No. 4248) 03077 An Ordinance Amending BC 9.05.005-.170, The Site Development Ordinance, to Allow Reduced Penalties for Site Development Work Performed Without Permit  (Ordinance No. 4249) REQUEST TO WAIVE PLUMBING FEE FOR RICHARD LEHMAN Coun. Soth MOVED, SECONDED by Coun. Stanton to waive the $40.00 plumbing fee for Richard Lehman.  Couns. Bode, Doyle, Ruby, Soth and Stanton voting AYE, the motion carried unanimously.  (5:0) DERNBACH PROPERTY Mayor Drake asked if the Council was in agreement on moving forward on the Dernbach property (Mt. Williams).  There was Council consensus to move forward. ADJOURNMENT There being no further business to come before the Council at this time the meeting was adjourned at 11:21 p.m. ___________________________________ Catherine L. Jansen, Deputy City Recorder Beaverton City Council Minutes – March 31, 2003 Page 23 APPROVAL: Approved this 2nd day of June, 2003. _______________________________ Rob Drake, Mayor