BEAVERTON CITY COUNCIL
REGULAR MEETING
NOVEMBER 3, 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 City Council Chamber, 4755 SW Griffith Drive , Beaverton , Oregon , on Monday, at 6:32 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 Alan Rappleyea, Finance Director Patrick O'Claire , Community Development Director Joe Grillo , Engineering Director Tom Ramisch , Operations/Maintenance Director Gary Brentano, Library Director Ed House, Human Resource Director Nancy Bates, Police Chief David Bishop, Development Services Manager Steve Sparks, Senior Planner John Osterberg and Deputy City Recorder Catherine Jansen.

CITIZEN COMMUNICATIONS:

There were none.

COUNCIL ITEMS:

There were none.

STAFF ITEMS:

There were none.

CONSENT AGENDA:

Coun. Doyle MOVED, SECONDED by Coun. Ruby, that the Consent Agenda be approved as follows:

Minutes of Regular Meeting of October 6, 2003, and the Joint Dinner Meeting with the Tualatin Valley Fire & Rescue District Board of October 13, 2003

03233 - Liquor License Applications: New Outlet - Denny's; Change of Ownership - Koreana Restaurant

03234 - Resolution in Support of Continuing Assault Weapons Ban (Resolution No. 3734)

03235 - A Resolution Authorizing the Filing of an Application for a Local Law Enforcement Block Grant for the 2003 Fiscal Year (Resolution No. 3735)

03236 - A Resolution Approving the Acceptance of a Specific Purpose Grant and the Associated Appropriations for the Identity Theft and Fraud Prevention Program in the General Fund of the City During the FY 2003-04 Budget Year and Approving the Appropriations for the Fund (Resolution No. 3736)

03237 - Traffic Commission Issues No. TC 529-532

03238 - Authorize Intergovernmental Agreement Allowing Tualatin Hills Park and Recreation District Use of City Property Located at or near 5550 SW Hall Boulevard

Coun. Stanton noted two corrections to the minutes of October 6, 2003 : 1) Page 6, under Ordinances, first paragraph, she said she asked for confirmation that the bond issue savings would fall into State requirements and Mr. O'Claire responded it would; and 2) Remove extra space on Page 2. She noted she would abstain from voting on the October 13, 2003 minutes.

Coun. Stanton asked when the City would receive the funds for the identity theft grant.

Police Chief Dave Bishop noted the funds were now available and the program would start January 1, 2004 .

Finance Director Patrick O'Claire explained the identity theft grant was a reimbursement grant; the City would be reimbursed as funds were spent.

Coun. Stanton stated she looked forward to having the stop sign installed at Betts Avenue and First Street and she was pleased the City was doing a 20-year lease with the Tualatin Hills Park and Recreation District for the Elsie Stuhr Center.

Question called on the motion. Couns. Bode, Doyle, Soth, Ruby and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0) Coun. Stanton abstained from voting on the minutes of October 13, 2003 .

ORDINANCES:

Suspend Rules:

Coun. Soth MOVED, SECONDED by Coun. Stanton, that the rules be suspended, and that the ordinances embodied in Agenda Bills 03239 through 03242 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, Soth, Ruby and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

First Reading :

City Attorney Alan Rappleyea read the following ordinances for the first time by title only:

03239 - An Ordinance Annexing Property Generally Located at 1500 NW 167 th Place to the City of Beaverton : Expedited Annexation 2003-0007 (Ordinance No. 4272)

03240 - An Ordinance Annexing Property Generally Located at 9730 SW Cynthia Street to the City of Beaverton : Expedited Annexation 2003-0010 (Ordinance No. 4273)

03241 - An Ordinance Amending Ordinance No. 4187 Figure 6.4, the Functional Classification Plan and Table 6.6 of the Comprehensive Plan, Removing the Neighborhood Route Street Classification to a Portion of NW Cambray Street between NW 183 rd Avenue and NW 185 th Avenue, Further Reclassifying that Portion of NW Cambray Street between NW 180 th Avenue and NW 183 rd Avenue from a Neighborhood Route to a Local Street: CPA 2003-0004 (Ordinance No. 4274)

03242 - An Ordinance Amending Ordinance 2050, the Zoning Map, from Urban Standard Density (R7) to Urban Medium Density (R4) ZMA 2003-0007 (Ordinance No. 4275)

Second Reading :

Rappleyea read the following ordinance for the second time by title only:

03232 - An Ordinance Amending Ordinance No. 4187, Figure III-1, the Comprehensive Plan Land Use Map and Ordinance No. 2050, the Zoning Map for Property Located at 8605 and 8635 SW Beaverton-Hillsdale Highway; CPA 2003-0006/ZMA 2003-0008 (Ordinance No. 4271)

Coun. Soth MOVED, SECONDED by Coun. Ruby, that the ordinance embodied in Agenda Bill 03232, now pass. Roll call vote. Couns. Bode, Doyle, Ruby, Soth and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

PUBLIC HEARING:

03243 - CUP 2001-0032, CUP 2001-0033 Salem Communications LUBA Remand

Community Development Director Joe Grillo read a prepared statement defining the process that needed to be followed for this hearing, including the various required disclosure statements.

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 the Mayor or any Councilors had visited the site.

Mayor Drake asked if they had to declare if they had not visited the site since the last hearing.

Rappleyea replied if they just had general familiarity from the last hearing, it did not have to be declared.

There was acknowledgement that the Councilor's has not visited the site.

Grillo asked if the Councilors received any ex parte contacts, the nature of such contacts and whether the contact had impaired the Councilor's impartiality or ability to vote on the matter.

There were none declared.

Grillo asked if there was anyone in the audience who wished to challenge or object to the City Council's authority to hear this matter.

There were none.

Grillo noted for the record that the Council received three letters, regarding arguments on both sides of the issue, from: 1) Michael Andrea, Heller Ehrman, dated October 31, 2003 ; 2) Steven Hultberg, Perkins Coie, dated November 3, 2003 ; and 3) Beverly Woodward dated October 21, 2003 .

Rappleyea explained this was a remand from LUBA of the Council's approval for a 196-foot AM radio tower in the R7 District. He said the R7 Zone allowed utility substations and related facilities as a conditional use; when Council considered this issue, it found the tower had met the definition of a private utility and approved the use. He said LUBA found that "private utility" was a subset of "utility" and since the City found the tower was not a utility, there was some conflict. LUBA remanded the issue back to the City to analyze that conflict.

Rappleyea explained LUBA provided guidance referring to how the City Code could be interpreted to allow this use. He said LUBA referred to the definition of R7 in Code Chapter 20, that said utility stations and installations were a conditional use. LUBA said it could not see a reasonable argument that a radio broadcast tower was not properly viewed as a station, substation, installation or related facility. LUBA said the only debatable question was whether it was properly viewed as a utility station, utility substation or utility installation. LUBA's definition of a utility in Code Chapter 90 of the BDC was "Infrastructure that is primarily underground. For the purposes of this Code, utilities include but are not limited to waterlines, sanitary lines, storm lines, culverts, natural gas lines, power lines, and their appurtenances above and below grounds, and/or any components thereof." LUBA said that definition was reasonably susceptible to an interpretation that included a radio broadcast tower. LUBA also said that though it was not among the specifically listed uses, that list was not an exclusive list; and the definition said infrastructure was primarily located underground, which left open the possibility that infrastructure could be above ground.

Rappleyea said the LUBA remand also covered the Comprehensive Plan Objective 3.4.2.11 which required that "Various residential uses should be protected from the intrusion of incompatible uses in order to preserve and stabilize values and the character of the area." He noted the Council found that these utilities were allowed in this area, and there was an existing tower, so this would not be an intrusion of incompatible use. He said since LUBA found the City had not adequately defined what a utility was, the City could not rely on this argument of not being an intrusion of incompatible use; LUBA could not sustain the City on this argument. He said staff recommended that if the City met the definition of utility, and if utilities were allowed in the zone as a compatible use and there was an existing use (a 246-foot tower), this would not be an intrusion of an incompatible use.

John Osterberg , Senior Planner and Steven Sparks , Develop Services Manager, introduced themselves.

Osterberg briefly summarized the staff report (in the record). He noted staff was recommending that Council adopt the amended findings under Criterion 1, that Council readopt the findings for Comprehensive Plan Objective 3.4.2.11 under Criterion 2, and that Council readopt the findings under Criterion 3 as still applicable. He said LUBA had not cited any findings under Criterion 3, so those would remain unchanged.

Coun. Stanton asked if the copper wire for the tower was underground or on top of the ground.

Osterberg responded the copper wire would be buried underground at least six inches deep.

Coun. Soth asked when this property was annexed to the City. He thought it was five or six years ago.

Osterberg replied that seemed correct; it was the mid 1990's.

Coun. Soth said he was just wondering from the standpoint of historical perspective and the reference in the record to when the original tower was installed.

APPLICANT:

Steven Hultberg, Salem Communications, Portland , said the City staff did a good job of summarizing LUBA's decision and the guidance it provided, and he concurred with the findings and conclusion in the staff report. He said the important point was that in the first decision, the Council classified the use as a utility substation and related facilities. He said LUBA had not questioned that interpretation; what LUBA questioned was if this was not a utility, how could it be a private utility. He said the City had not looked at whether a use had to be a utility, before it was a private utility and that was LUBA's focus. He said the staff report did a good job explaining why the tower was a utility and LUBA said it would not have a problem with that interpretation. He said they were asking the Council to adopt the findings and conclusions in the staff report with respect to the utility.

Hultberg said he wanted to address an issue raised by the opponents in their letter of October 31, 2003 . He explained the opponents argued that the existing tower was a non-conforming use and the City relied on the existence of that tower to conclude there was no intrusion of an incompatible use. He said the opponents cited Code Section 30.45 as support for their conclusion. He stated he thought that Code section said the exact opposite of the opponents' position. He noted that Section 30.45 said that uses that existed before the zoning district regulations were in effect and now classified as a conditional use in that zone, were now considered a conforming use. He said the Council properly identified the tower as a utility substation; because utility substations were listed as a conditional use in the R7 zone, under Section 30.45 they were a conforming use. He said it was appropriate for Council to find that use was not an intrusion of an incompatible use. He asked that the Council deny the opponents' argument and accept the position set forth in the staff report and also the interpretation response in Hultberg's letter of November 3, 2003 .

Mayor Drake noted that in his letter of October 31, 2003 , Michael Andrea, attorney, said he represented the Citizens for Environmentally Responsible Development. He asked Council if they felt he should testify under the classification for organized groups.

Coun. Soth asked when this group was formed; was it a subcommittee of a recognized homeowner's association in that area or was it formed after the March hearing for purposes of appearing at this hearing.

Rappleyea noted Andrea could answer those questions. He suggested if Andrea was recognized as the group representative for the opponents, that Council first finish hearing from those who supported the application.

Mayor Drake asked if the opponents indicated Andrea was their representative, would they also be allowed to testify individually in addition to the group testimony.

Rappleyea said the Council should decide whether or not to grant the additional time.

Mayor Drake asked Andrea to speak with the opponents to decide how to organize their testimony. He said in the meantime Council would finish hearing from those who supported the application.

TESTIMONY IN SUPPORT OF THE APPLICATION:

Maureen Wedge, Lake Oswego , stated she felt strongly that radio was the wave of the future and an education source for the public. She said she believed the more radio stations there were and the more debate of ideas, the better the quality of living was for everyone. She noted she traveled 6,000 miles this summer and she found radio was important. She said she was happier listening to the radio than watching television and she felt it was important to the public interest to encourage radio broadcasting and she appreciated the Salem Communication's radio station. She concluded by saying she appreciated the Council's and City's recognition of the importance of radio broadcast and what they were doing to encourage the idea that people be educated and informed.

TESTIMONY IN OPPOSITION TO THE APPLICATION:

Michael Andrea, Heller Ehrman, attorney representing Citizens for Environmentally Responsible Development, stated he would waive the ten-minute allowance for an organized group and would testify as an individual, as others wanted to testify.

Andrea corrected two typos in his letter of October 31, 2003 , for the record: 1) Page 7, second paragraph, second sentence, BDC 30.45 was changed to Objective 3.4.2.11; and 2) Page 7, third paragraph, Section IV.B. was changed to Section IV.D. He said the opponent's position was that the radio tower was not a utility. He said he believed LUBA erred in suggesting that if the Council found it was a conditional use, i.e., a utility, there was no need to go any further because it became a conforming use. He quoted from Section 30.45, which said the conditional use became a conforming use "only upon receiving a conditional use permit." He said the fact that it became a conditional use for which a conditional use permit could be granted, did not transform this into a conforming use. He said it was clear from that provision, that the radio tower was still an intrusion of an incompatible use. He said Objective 3.4.2.11 said the residential area was to be protected from an incompatible use. He said the applicant's argument that if it was classified as a conditional use it became a conforming use, was contrary to the terms of Objective 3.4.2.11. He concluded by saying he visited the site today and it was a pristine area; the existing tower was an intrusion but the residents had learned to live with it and it was calculated into the property values of their homes. He said the homeowners had not expected more towers and had anticipated the R7 zone would protect their property values and the area. He said to allow the tower would nullify that expectation and he asked that the Council protect the homeowners, the neighborhood and the pristine environment.

Coun. Soth asked Andrea if he was saying that the first tower was not an intrusion because it was there prior to that area being developed; however the second tower would be an intrusion.

Andrea replied the first radio tower was built before land development regulations were in effect and was grandfathered in by the Development Code. He said the tower was still a non-conforming use and the Council could not use the existence of that non-conforming use as justification for perpetuating similar uses.

Coun. Soth referred to the setback distances (page 27) of the staff report and asked if Andrea was saying the tower would be an intrusion at these distances.

Andrea replied distance was not relevant; it was the zoning that was relevant. He noted the whole area was zoned R7 so factories or sales lots could not be located in that zone. He said that applied to the radio tower.

Coun. Soth noted his analogy of factories or sales lots did not apply, since these were uses in a commercial area and this was not a commercial area.

Andrea answered his point was that the area was not zoned for non-residential use and that was not what the owners bought into when they purchased the property. He said the residents bought into one tower, not two or more. He stressed more towers could be added and asked where the line would be drawn.

Coun. Soth noted that there has been no factual information to substantiate the opponent's position of depreciation in property values.

Andrea replied he was mostly correct that there was little evidence of impact on property values. He emphasized it was not the opponent's burden to prove property values were impacted; it was the applicant's burden to prove there was no impact.

Coun. Stanton told Andrea she appreciated his memo as it was well written and to the point on the criteria.

Charles Haugh, Portland , stated that by this action, the homeowners in this area could not expect to have their property values preserved and stabilized. He said Salem Communications was investing $150,000 in the tower. He noted this was an out-of-state, for-profit corporation and this would not create additional jobs except for construction of the tower. He said he did not see the City benefiting from this. He explained he invested $400,000 in his house and at a Fourth of July party 80 homeowners from that area signed a petition against this tower. He said that represented $32 million dollars in property values and he questioned the rationale for risking $32 million in property for a $150,000 tower from an out-of-state firm. He said two towers were worse than one and he feared it becoming a radio tower farm. He noted the wetland area had been improved and to add an additional tower went against everything the City was doing to preserve its beautiful areas. He said the City was going to lose the faith of that neighborhood on future projects. He added the Oregon Episcopal School was considering placing a bus maintenance barn on the edge of that wetland and no one in the neighborhood thought the Council would give this a second look. He said the tower was ugly and they did not need more; and the City should work to beautify and improve property values in the City, not degrade them.

Coun. Stanton explained the Council was constrained by the Code and the criteria in the Code. She explained Haugh's issues were not part of that criteria. She stressed the Council could not look at the benefits; only the criteria.

Haugh said he believed the preservation and stabilization of property values needed to be factored in, which he felt was clear. He said whether or not this was a utility was not a black and white issue from the viewpoint of the homeowner's.

Coun. Soth said Haugh's concerns about wetlands were well taken. He explained the applicant, as well as Clean Water Services and other agencies including the Oregon Episcopal School, had met and worked to determine what was needed to improve and enlarge the wetland area. He said he looked forward to when the work was done to see the condition of the whole area.

Laurie Newton, Beaverton , Citizens for Environmentally Responsible Development, said they were there for the neighbors and the environment. She said it was unfortunate to have to use the legal process to get someone to pay attention to the needs of a community. She noted the community raised several issues which had many legal consequences and criteria. She said they believed strongly that LUBA erred under the Comprehensive Plan and the towers were an intrusion and an incompatible use with the neighborhood. She said she believed the Council should make this finding and consider all the people who testified tonight and in the past.

Kelly Palmetto, Portland , commented on the non-conforming use. She said when the residents bought their houses they knew there was one radio tower; they did not know there would be another. She asked if one used that logic what would stop that whole area from becoming a tower farm. She said when people bought their homes they were told by the realtors this was an environmentally safe and federally-protected area where nothing more could be built. She said they believed that and now they were hearing that this whole area could be changed. She said many people were not at the meeting because they felt the decision was already made and Council was not listening.

No one else wished to testify in opposition to the application.

There was no one present who wished to testify who was neither in support or opposition to the application.

Mayor Drake noted the applicant was allowed rebuttal.

REBUTTAL:

Hultberg stated in their position, the opponents ignored a phrase in Code Section 30.45 that was critical. He said they alleged the proposed tower required a conditional use permit before the existing tower could be considered a conforming use. He said Section 30.45 had a provision that said "without further action, these uses shall be considered conforming uses." He said the opponent's logic required further action to be considered a conforming use. He said the entire purpose of the non-conforming and conforming use statutes was to allow uses to continue that were otherwise allowed as a conditional use, so the property owner would not have to go through the process again to recognize uses that were already there. He stressed he believed under the opponent's position, the "further-action" violated the provision the opponent cited. He added the question of additional towers was not before Council; only one tower was being considered. He noted there wasn't a provision in the Comprehensive Plan or the Code that required the applicant to demonstrate that property values won't be affected. He said he shared the frustration felt by those who were told by realtors that certain things would not happen and noted that happened often. He concluded the Code allowed for utility substations in the R7 Zone which was what they were dealing with now.

Mayor Drake closed the public hearing at 7:37 p.m.

Coun. Soth MOVED, SECONDED by Coun. Ruby, that the Council, having conducted public hearing, adopt the findings recommended by staff for CUP 2001-0032 & 2001-0033 Salem Communications LUBA Remand as outlined in Agenda Bill 03243.

Coun. Soth said the Council was fully aware of the feelings of the residents in this area and the Council did listen. He explained in this case the Council found that the definition of the radio tower and the appurtenances constituted a utility and a utility building and they fulfilled the three required criteria for this application. He said he had not heard anything to rebut these findings in terms of the criteria Council must observe. He said that was why he made the motion.

Coun. Stanton said she would support the motion though on a personal level she would rather not; however, the Council was constrained by the Code. She noted the discussion of what constituted a utility occurred at the first hearing and said she was glad staff had the time to spell out clearly, and the case was made clearly, that this was an allowed use. She encouraged people to pay attention and said she did not suspect there would be more towers there. She commiserated with those who had not checked their local jurisdiction maps to find out what was allowed in an area.

Question called on the motion. Couns. Bode, Doyle, Ruby, Soth and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

ADJOURNMENT

There being no further business to come before the Council at this time, the meeting was adjourned at 7:41 p.m.

APPROVAL:

Approved this 17th day of November, 2003.

__________________________________
Rob Drake, Mayor