MARCH 31, 2003
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.
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.
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
Mayor Drake thanked her for the presentation.
Beaverton City Council
Minutes – March 31, 2003
Page ²
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
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.  
Coun. Soth expressed his appreciation to everyone for their sympathy, encouragement
and good wishes during his recent surgery.  
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.   
Coun.  Doyle MOVED, SECONDED by Coun. Stanton, that the Consent Agenda be
approved as follows:
Minutes of Regular Meeting of March 3, 2003
Authorize the Mayor to Sign the Joint Water Commission – Hillsboro, Forest Grove,
Beaverton and Tualatin Valley Water District Water Service Agreement
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:
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.
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.   
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
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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.
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Minutes – March 31, 2003
Page 7
Douglas replied it currently was a mixture of both; CWS also had started planting new
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.   
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
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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
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.  
Mayor Drake called for a brief recess at 8:14 p.m.
Mayor Drake reconvened the meeting at 8:25 p.m.
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.  
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
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 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.
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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
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
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
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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
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
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
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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
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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.    
Mayor Drake called for a brief recess at 9:28 p.m.
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
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
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
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,, 3.4.3A, 3.4.3B and
Development Code Section, 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
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,, and 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, and 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
Mayor Drake confirmed there was no additional public testimony.  
Mayor Drake called for a brief recess at 10:35 p.m.
Mayor Drake reconvened the meeting at 10:44 p.m. 
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
Whitlow referred to Code Section,  “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
Beaverton City Council
Minutes – March 31, 2003
Page 20
Coun. Stanton asked if the towers operated in tandem or would be running different
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
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
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
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
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)
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:
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)
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)
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)
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.
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
Approved this 2nd day of June, 2003.
Rob Drake, Mayor