BEAVERTON CITY COUNCIL
REGULAR MEETING
NOVEMBER 15, 2004

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, November 15, 2004, 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 City Attorney Alan Rappleyea, Chief of Staff Linda Adlard, Finance Director Patrick O'Claire, Community Development Director Joe Grillo, Engineering Director Tom Ramisch, Operations/Maintenance Director Gary Brentano, Library Director Ed House, Human Resources Director Nancy Bates, Risk Manager Tim Pope and Deputy City Recorder Catherine Jansen.

PROCLAMATIONS:

Mayor Drake proclaimed the week of November 14 – 20, 2004, as Association of Operating Room Nurses Perioperative Nurse Week.

PRESENTATIONS:

04231 - Presentation of Risk Management Function for the City of Beaverton

Human Resources Director Nancy Bates introduced Risk Manager Tim Pope, who presented a program on the City’s Risk Management Program.

Pope explained the Risk Management Program covered a broad range of functions; the goals of Risk Management were to ensure public safety and reduce the City’s potential liability. He said Risk Management included: Public Risk – Assessing public buildings and open spaces to ensure they were free of hazardous conditions and to maintain a safe environment for the public and City employees; ADA Compliance - Ensuring City properties meet ADA (Americans with Disabilities Act) s tandards for accessibility; Environmental Risk – Training City employees involved in environmental issues and in the handling, storage and disposal of hazardous materials. He displayed photographs of the handling of hazardous waste in the cleanup of soils and buildings.

Pope said Employee Safety and Security was a function of Risk Management. He said security was at the forefront for everyone since the attacks of September 11, 2001. He said employees were trained on worksite safety, OSHA s tandards, hazard training, and First Aid/CPR. He added worksite surveys were conducted to ensure compliance with safety s tandards.

Pope explained Risk Management included Insurance Review and Renewal, Employee Health and Welfare, the Employee Wellness Program and Workers’ Compensation. He said very few agencies had an Employee Wellness Program. He said the Wellness Program fostered healthier employees, healthier lifestyles and lower health care costs. He said regarding Workers’ Compensation, the City had a strong and effective workplace-safety program, which was supported by all City managers; this kept Workers’ Compensation costs down. He said the City’s Workers’ Compensation Current Experience Modification rate was .78; the average employer in Oregon had a Current Experience Modification rate of 1.02. He said the City was about 24% below the average rate.

Coun. Stanton thanked Pope for doing a good job in keeping the costs down for Workers’ Compensation.

Pope said he would pass that on to the City’s department heads, supervisors and employees who worked very hard to ensure the City’s rates remained low.

Pope reviewed what constituted Third Party Liability Claims, Damage to Third Party Property and Damage to City Property. He reviewed a few of the City’s insurance cases and showed pictures of damaged bridges, vehicles, homes and sewer laterals. He concluded Risk Management was a continual evaluation of the City’s exposure to accidental, legal and regulatory risks; and continual self-education on current developments and insurance loss trends and costs.

Coun. Bode confirmed with Pope that there were 453 City employees. She asked how many participated in the Wellness Program in the last 24 months.

Pope explained at the last Wellness Fair 138 employees attended. He added the brown bag wellness sessions during employees lunch hours were well attended.

Coun. Doyle asked who provided the Workers’ Compensation Program for the City.

Pope explained the City was self-insured and claims were processed through Pinnacle Risk Management. He said the City’s liability was handled by CCIS (City County Insurance Services), a consortium of cities and counties throughout the State, in conjunction with the League of Oregon Cities, which provided insurance and risk management services to public agencies. He said CCIS was a very efficient and effective organization and Pinnacle was a member of CCIS.

Coun. Soth asked how often the City collected on its insurance claims.

Pope explained the City collected 60% to 70% of the time. He said the remainder of the claims were hit-and-run or uninsured motorists. He said the City used collection services to collect some of those claims, but the return was low.

Mayor Drake thanked Pope for the presentation.

CITIZEN COMMUNICATIONS:

Barbara Wilson, Beaverton, referred to Ballot Measure 34 (BM 34 – Tillamook 50/50 Plan) that had failed in the November, 2004 Election. She said the Council adopted a resolution opposing BM 34, although Beaverton was not a logging community. She said she never thought the Council would take a s tand on old growth forest. She said she cared deeply about endangered and threatened species because it was morally wrong to push a threatened species toward extinction. She said she wanted the Council and the majority of voters to recognize the impact they had in pushing the spotted owl and marbled murrelet toward extinction. She said both birds were totally dependent on old growth forest for existence. She said there was no hope for the marbled murrelet; it would become extinct in a short time. She said the murrelet lived at sea and came into the old growth forest to lay one egg; if there was no old growth forest, it returned to the sea without offspring. She said there was hope for the spotted owl as long as government agencies did not take actions which removed the old growth.

Wilson said at a previous meeting, Coun. Soth talked about the risk of forest fires. She said the serious fires in the Tillamook were caused by careless and illegal logging activities. She said old growth forests were not the same type of forests that burned in those fires. She said Ballot Measure 34 allowed logging of the smaller undergrowth trees in 100% of the forest to reduce fuel in the forest, and it retained 50% of the old growth forest. She said a lot of money would have come from logging the allowed 50% of the old growth and the understory. She said this measure failed because of greed; she wanted Council to hear these facts for there was considerable misinformation publicized on this measure.

COUNCIL ITEMS:

Coun. Soth thanked Mayor Drake for the “Your City” article the Mayor wrote about him in the City’s newsletter. He said he had no idea the Mayor was writing an article and it was overwhelming to him that the Mayor put his feelings into print. He said he appreciated that very deeply and it would stay in his memory forever.

Mayor Drake said the subject matter was easy to write about. He complimented Coun. Soth for his dedication and level of professionalism, stating he earned the respect and honor of Beaverton citizens. He said on December 13, 2004, the Council would be holding a short Council Meeting from 6:30 p.m. to 7:00 p.m. and from 7:00 p.m. to 9:00 p.m. there would be a reception to honor Coun. Soth for his many years of service. He invited the community to attend the reception.

STAFF ITEMS:

Finance Director Patrick O’Claire reminded Council of the Budget Committee Meeting on Thursday, November 18, 2004, at 6:30 p.m., to discuss the supplemental budget.

CONSENT AGENDA:

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

Minutes of Regular Meeting of November 8, 2004.

04232 - Authorize Acceptance of FY03 Critical Infrastructure Protection Grant Awarded to the City of Beaverton and Establish the Necessary Appropriations Through a Specific Purpose Grant Budget Adjustment Resolution (Resolution No. 3787)

04233 - Special Purpose Grant Budget Adjustment Resolution for 2004 Local Law Enforcement Block Grant (LLEBG) (Resolution No. 3788)

04234 - A Resolution Designating Territory in the Vicinity of the Intersection of Cedar Hills Boulevard and Barnes Road to be Annexed to the City of Beaverton (Resolution No. 3789)

04235 - A Resolution Designating Territory Near Downtown Beaverton to be Annexed to the City of Beaverton (Resolution No. 3790)

Coun. Stanton said she had a minor clarification to the minutes that she gave to the Deputy City Recorder. She also stated she would not be attending the Budget Committee Meeting on Thursday for she would be out of town.

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

WORK SESSION:

04236 - An Ordinance Amending Chapter 2 of the Beaverton City Code by Establishing a Process for Evaluating Claims for Compensation Under the Amendments to Oregon Revised Statute Chapter 197 As Approved Under Ballot Measure 37 in the 2004 General Election and Declaring an Emergency (Ordinance No. 4333)

City Attorney Alan Rappleyea distributed to Council a copy of a Briefing on Impacts of Measure 37, dated November 15, 2004, that he had prepared.

RECESS:

Mayor Drake declared a brief recess for Council to review the Briefing on Impacts of Measure 37.

RECONVENE:

Mayor Drake reconvened the meeting at 7:18 p.m.

Rappleyea explained that last Wednesday there was a joint meeting of the area’s city attorneys and county counsels to discuss how Ballot Measure 37 (BM 37) should be interpreted and implemented. He said one of the main issues considered was whether local governments should adopt a claims processing ordinance to implement this measure. He said it was decided that the majority of agencies were going to do an ordinance and it had to be done before December 2, 2004, the effective date of BM 37. He said that was why this item was brought quickly to Council.

Rappleyea reviewed the Impacts of Measure 37 (in the record). He said there were still more questions than answers to BM 37 and assistance was needed from the courts to interpret the measure.

Rappleyea said BM 37 allowed property owners to file claims for compensation with government agencies whose land use regulations restricted the use of their private property, if the restriction reduced the value of the property. He said BM 37 was retroactive because it applied to existing and new regulations and to family members. He said it also applied to forest practices, Metro’s regional and framework plans, Comprehensive Plans, and transportation, zoning and land division ordinances. He said the applicability to the Traffic Impact Fees (TIF) would be a major impact to the City.

Coun. Stanton asked if SDCs (System Development Charges) would be affected.

Rappleyea said park SDCs would probably not be affected by BM 37, but the Traffic Impact Fees would be.

Mayor Drake explained that meant if a large national retail store, with thousands of customers per day, were to locate on a vacant lot, this would remove the requirement for fees based on the traffic generated by the new store. He said that meant the City would not be able to require a Traffic Impact Fee to cover the cost of expanding the road system to offset the increased traffic from the new store. He said as a result, traffic congestion would increase and the City could not mitigate the impact. He said this would be development not paying its share.

Coun. Stanton asked how this would affect conditions of development, such as sidewalks or turn lanes.

Rappleyea explained the conditions could be subject to a waiver. He said if the conditions reduced the property value, the City could not require any traffic capacity improvements or amenities such as street trees or sidewalks. He said potentially, the City could require certain improvements to ensure safety.

Coun. Stanton asked if there would be a mechanism to indicate sidewalks were a safety issue.

Rappleyea said the measure talked about Fire and Building Code issues; however, that was one of the questions BM 37 raised but did not answer. He said it would probably have to go to court. He said BM 37 exempted ordinances which addressed public nuisances, public safety and health, Health and Building Codes, solid waste regulations, and measures that complied with Federal law.

Rappleyea said that within 180 days of a filed claim the City may either pay compensation or remove or modify the offending regulation. He said in discussion with other cities there was no funding available to pay these claims; and the City had no funding in its current budget to pay the claims.

Coun. Doyle asked how a tree could reduce the value of a property; was it because the tree could take space that could be used for parking.

Rappleyea said if the City imposed a tree ordinance that required people to plant trees on their property they could argue that by having to purchase the trees that would reduce the value of the property.

Coun. Doyle asked if the argument couldn’t be made that it improved the property value.

Rappleyea said that would have to be shown in an appraisal.

Coun. Doyle confirmed with Rappleyea that the same claim could be made for turn lanes. He asked if what was being considered was the value of the unimproved or improved land.

Rappleyea said the measure stated “Compensation shall be equal to the reduction in fair market value of the affected property resulting from the enactment or the enforcement of the land use regulation at the date the owner makes the written demand.” He said the City would look to condemnation legal principles to measure that valuation. He said at the date the owner filed a claim, the City would look at the highest and best use of the property; then it would look at the value of the land with the restriction and without the restriction to determine just compensation.

Coun. Soth asked if it was correct this would not apply to eminent domain proceedings, as that would be settled in court if an agreement was not reached.

Rappleyea said that was correct, but the principles the Court would apply to determine just compensation would be similar.

Rappleyea explained the City would either pay just compensation, which was unlikely, or it would modify or waive the regulation. He said the waiver was limited to the use of the property by the present owner. He said there was a big question about whether land division, partition or subdivision statutes from State law were subject to BM 37, as they did not address the use of the property. He said the City could make a good argument that following subdivision requirements made sense because the City needed to have a parcel description and a method to record that. He said the development conditions might be in doubt.

Coun. Stanton asked about the exemption from BM 37 for “Regulations enacted prior to the date of acquisition of the property by the owner or family member of that owner (“owner” is present owner; “family member” probably includes legal entities owned by one or more family members).”

Rappleyea said that was one of the big questions from this measure. He said the long-term retroactivity of the measure may be in doubt because of how it was written and how it applied only to the owner. He said the provisions regarding waiving the ordinance were restricted to the current owner and the regulations when that owner had the property. He said the only time the term “family member” was found in the measure was in a subsection that discussed compensation, but the waiver only applied to the current owner. He said the City would have to waive or pay, but there may be a situation where the waiver was not available because of the definition of family member. He said the retroactivity was one of the biggest issues of the measure.

Rappleyea explained the claimant could seek compensation through the courts if the regulation continued after 180 days and would be entitled to costs, including attorneys fees, if he prevailed. He said there was no provision for the City to be awarded attorneys fees if the City prevailed. He said cities could adopt procedures for processing claims; however, there was no requirement that claimants follow the procedures and they could still file a court claim.

Rappleyea explained there was no requirement in BM 47 for property owners to provide cities with needed information (who owned the property, when they purchased it, what land use regulations applied and when, what reduction in valuation occurred) to make determinations on their claims. He said that was why it was recommended that cities provide some type of framework for owners to provide the information needed so Councils could make a decision. He said without proper information, it would be difficult to process the claim and make a decision.

Coun. Soth said it appeared the burden was on the City to do necessary research of title records to clarify who owned what and when; and the present owner had no obligation to work with the City to provide that information. He added it would be current land use regulations that had to be applied.

Rappleyea replied that was correct and it will be burdensome on City to make these determinations. He said it will take a lot of work which was why the process was written so the owners supplied the information, as they had the best information available on ownership and property values.

Coun. Doyle said it sounded as if the government body was guilty until proven innocent.

Rappleyea said the burden was on the City to decide these issues within 180 days and there was no obligation that the claimants provide needed information to the City.

Coun. Doyle said he found it interesting that this measure would make it difficult to enforce the public desire for order and sensibility. He said this was a silly way to do business and in private business this would be laughed out of the building. He said he did not unders tand why people voted for it and it was an awful way to conduct public business.

Rappleyea said the proponents have said this will not cost governments a lot of money because governments will just waive the regulations and that was the intention of the measure.

Coun. Doyle said this was a bullying tactic.

Rappleyea reviewed how BM 37 would impact various City programs (in the record).

Coun. Doyle said he hoped the Council would get an estimate of the departments’ personnel costs for staff hours needed to handle the increased workload, for the next budget.

Rappleyea said the City will look at that. He said the City was waiting to see the number of claims that were filed after the effective date.

Coun. Soth gave as an example, a situation where he and his neighbor wanted to develop the rear of their property and the Code required 25 feet for access. If he said the 25 feet impacted his property value, so he would develop 15 feet, would that be considered a claim.

Rappleyea replied that would constitute a claim and the limitation would be what was required by the Fire Department for access. He said if the Fire Department only required 15 feet, the claim would be valid. He added paving could also be a potential issue.

Coun. Stanton asked if the 15 feet was an easement, for utilities lines or pipes, how would that be affected by the measure.

Rappleyea said that would be exempted as there was an exemption for health and safety and for sewer regulations. He said that would not qualify for a claim.

Coun. Stanton asked if storm water permits, issued by DEQ, to meet Clean Water Act standards, were exempt under health and safety or Federal requirements.

Rappleyea responded they would probably be exempt. He said the State DEQ administered this through an agreement with the EPA. He said he thought most courts would find this was a health, safety or Federal regulation, but that was one of the issues that needed to be answered.

Rappleyea reviewed the proposed ordinance in detail (in the record). He said the City could do a waiver of a regulation through a license, which would be non-transferable if the ownership changed.

Coun. Stanton asked if someone owned a parcel and had not installed sidewalks; if the property was sold, could the City require the new owner to install sidewalks.

Rappleyea said no for that would be a non-conforming use. He said if they wanted to develop a new use of the property, improvements could be required.

Community Development Director Joe Grillo said if the property was being remodeled at 51%, hypothetically the improvements could be required. He said there was a possibility that it could not be required; it would depend on what was being done in the remodel.

Rappleyea explained this will create a new way to describe properties and ownerships, because property transactions will try to reach back as far as possible. He said the ordinance will require an application be made and application fee paid. The application includes information on property ownership, regulations being contested and the amount of the claim supported by an appraisal.

Coun. Soth said he heard that a certified appraisal would not be required under the measure.

Rappleyea repeated the applicant did not have to provide any information to the City to perfect their claim under BM 37. He said the City was trying to establish a process where the City could get the information needed in order to make a good determination on the claim. He said that was why the ordinance included a provision for a licensed appraisal on the property.

Coun. Stanton confirmed with Rappleyea that all the points under Section 2.07.015C were suggestions and not mandatory. She said the application did not have to be perfected to file a claim.

Rappleyea said the City was hoping people would provide the needed information but it would not be necessary to start the 180-day clock. He said it was hoped that case law would be forthcoming to help cities on the information needed to process claims.

Mayor Drake said staff was torn on what to do. He said when each Councilor was sworn in they swore to a fiduciary responsibility to the citizens who elected them. He said it was critical that staff supply as much information as possible to Council so it could make its determination. He explained how this involved protecting neighboring property owners. He said the Council owed it to all property owners and the 80,000 citizens of Beaverton to make the right decision. He said he hoped most property owners would unders tand and believing they have a fair claim, they would cooperate. He spoke on the need to let people know how BM 37 affects their City. He said he felt the exemption process should be noticed and the public should have the opportunity to comment; once a decision was made the public would know why that decision was made.

Coun. Stanton asked if there was a way to allow an adjacent property owner to make a claim for a reduction in their property value because of something a neighboring owner did.

Rappleyea said that was covered in the ordinance and he would review it.

Coun. Bode asked if the procedure was optional; how could the application fee be mandatory.

Rappleyea said the cities were hoping for guidance from the court, stating this was what local governments need.

Rappleyea reviewed the sections on recovering costs for invalid claims and the public part of the process, which was a detailed process requiring notice to owners within 500 feet of the property owner making the waiver request. He said this was consistent with current land use notice requirements. He said the claims will be reviewed by the Community Development Director who will make a recommendation to grant the waiver through a license or deny the waiver. He said the Council would then make a determination on that recommendation.

Coun. Stanton asked what was the difference between granting a waiver or giving a license.

Rappleyea explained a license was a term of property law and it was revocable. He said there was a body of law that dealt with licenses and a license was not a permanent right to use a piece of property. He said it allowed property owners to do what they wanted with their property but it was recorded in the title, so subsequent purchasers would know when they buy the property the land use regulations would apply to them.

Rappleyea reviewed the options available to Council in the ordinance (in the record). He noted in the last section there was a fund to which people could contribute if they wished to keep the land use regulation in place. He reviewed the burden of proof was on the applicant to substantiate they had a legitimate claim and the City had the burden of proof to show the regulation was exempt from the obligation. He reviewed the standards of interpretation, the licensing, the payment of claim, and the recording requirements.

Rappleyea explained local government attorneys were concerned that if they waived a regulation that was duly enacted, and someone put a large intensive use on a property that negatively affected neighboring property values, how would that be dealt with. He said the ordinance had a potential cause of action which was directed toward the person seeking the waiver of the requirement and not the local government.

Coun. Doyle referred to Section 2.07.045A and asked if a property was inherited by a family member, would that person lose the license.

Rappleyea said they would lose the license but the property would still be a non-conforming use.

Coun. Stanton asked if private cause of action would leave the City subject to further claims from neighboring property owners.

Rappleyea said BM 37 was clear if someone made a claim to put a large retail development on their property, and the City had to waive a requirement because it could not afford to pay the just compensation, and neighbors property values were greatly reduced, BM 37 did not provide any method for neighboring property owners to put a claim against the City. He said the neighboring property owners could seek redress from the person benefiting from BM 37. He said the City was a home rule City so it had the authority to craft the ordinances needed to fill in the blanks of BM 37. He said this was what the staff was trying to do. He said based on the home rule authority, the last section of the ordinance provided that if the City won in a court action on an invalid claim, that the court would grant the City its attorneys fees.

Coun. Stanton thanked the City Attorney for his diligence with writing the ordinance.

Mayor Drake noted the ordinance was scheduled for first reading and the second reading included an Emergency Provision that would make the ordinance effective upon passage and Mayor’s signature.

Rappleyea noted a few amendments might be needed which would be brought back at the second reading. He thanked the Community Development staff for their input in writing the ordinance.

ORDINANCES:
Suspend Rules:

Coun. Doyle MOVED, SECONDED by Coun. Soth, that the rules be suspended, and that the ordinance embodied in Agenda Bill 04237 be read for the first time by title only at this meeting, and for the second time by title only at the next Special Meeting of the Council. Couns. Bode, Doyle, Soth, Ruby and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

First Reading:
Rappleyea read the following ordinance for the first time by title only:

04237 - An Ordinance Amending Chapter 2 of the Beaverton City Code by Establishing a Process for Evaluating Claims for Compensation Under the Amendments to Oregon Revised Statute Chapter 197 As Approved Under Ballot Measure 37 in the 2004 General Election and Declaring an Emergency (Ordinance No. 4333)

Second Reading:
Rappleyea read the following ordinances for the second time by title only:

04228 - An Ordinance Amending Chapter 5 of the Beaverton Code to Add a New Section 5.16 Relating to Civil Rights (Ordinance No. 4330)

04229 - An Ordinance Amending Provisions of Chapters Four and Five of the Beaverton City Code Relating to Nuisances Affecting the Public Health (Ordinance No. 4331)

04230 - Design Review Update (Ordinance No. 4332)

Rappleyea noted Ordinance 4332 was amended to add Section 7 to make the effective date of the ordinance January 1, 2005.

Coun. Soth MOVED, SECONDED by Coun. Doyle, that the ordinances embodied in Agenda Bills 04228, 04229 and 04230, now pass. Roll call vote. 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 8:20 p.m.

APPROVAL:

Approved this 6th day of December, 2004.

__________________________________
Rob Drake, Mayor