BEAVERTON CITY COUNCIL
REGULAR MEETING
OCTOBER 11, 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, October 11, 2004 , at 6:40 p.m.

ROLL CALL:

Present were Mayor Drake, Couns. Dennis Doyle, Fred Ruby, Forrest Soth and Cathy Stanton. Coun. Bode was excused. Also present were 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 Resources Director Nancy Bates, Police Deputy Chief Chris Gibson, Operations Manager Terry Priest, and City Recorder Sue Nelson .

PRESENTATIONS:

04204 Beaverton Creek Restoration Progress Update

Operations/Maintenance Director Gary Brentano and Operations Manager Terry Priest updated the Council on the progress of the Beaverton Creek Restoration.

Priest presented a slide presentation of the Beaverton Creek clean up project. He said the work included removing the blackberries, bank enhancement in areas where the bank had eroded, plantings to preserve and protect the bank and creek, and cleaning debris from the creek and pond area. He said the plants were provided by Clean Water Services.

Coun. Soth asked if the Federal Clean Water Services and the City were aware of the landscape plantings required by Federal Consent Decree from the Tri-Met Light Rail Project. He added the responsibility for this area rested with the City and Tri-Met and it would be good to review the restrictions.

Priest explained the City was consulting with Tri-Met on this project and the work being done was to restore the creek only.

Brentano said the Consent Decree was reviewed by the City Attorney and he indicated that the work the City was doing was within the terms of the Consent Decree.

Coun. Stanton complimented staff for an excellent presentation. She asked how they got rid of the blackberries.

Priest explained they cut and sprayed the blackberries and then treated the area.

Mayor Drake said the creek looked very good a few weeks ago when he toured the transit center terminus with the Director of the Federal Transit Administration.

Mayor Drake stated the Work Session on the Proposed Beaverton Civil Rights Ordinance would be heard before the Citizen Communication and the Consent Agenda

WORK SESSION

04206 - Work Session for Discussion of Proposed Beaverton Civil Rights Ordinance

Mayor Drake thanked Jim Maguire, Chair of the Human Rights Advisory Commission (HRAC), for coming to the Council meeting. He explained the HRAC was formed in 1993 at a time when the community was facing a great deal of change. He said the intention was that the HRAC would be proactive in promoting diversity, tolerance and unders tand ing in the community. He said Councilor Betty Bode was the first Chair of the HRAC.

Mayor Drake said a year ago Maguire approached him concerning a human rights ordinance. He stressed this ordinance was not in response to Ballot Measure 36; it was not a same sex marriage issue. He said this was about basic human rights. He said the HRAC and City Attorney did an excellent job embodying current State and case law into the ordinance. He said the process was that the ordinance would be considered under a work session at this meeting. He said if Council decided to proceed, a public hearing would be held, possibly in November. He said if after the hearing the Council decided to proceed, the ordinance would follow the s tand ard process for ordinance adoption and signature.

City Attorney Alan Rappleyea said he reviewed the HRAC’s proposed draft ordinance and streamlined it, to bring it into conformance with existing State law. He said he compared the HRAC proposed ordinance to other cities’ and counties’ ordinances and incorporated the main points from the other ordinances into this ordinance. He said the proposed ordinance before Council was very similar to the civil rights ordinances adopted by other cities and counties. He said this was not a huge leap forward in law. He said State statutes (ORS) incorporated sex discrimination laws in employment, property transactions and public accommodations. He said State and Federal courts extended sex discrimination to sexual orientation discrimination, so if State law was applied in Beaverton , it would be applied in the same way as this ordinance.

Rappleyea explained the largest policy issue before the Council was the creation of private cause of action for sexual orientation discrimination; he said that cause of action already existed under State case law. He said the City of Portland went to court over the issue of local governments creating causes of action, and it was upheld by the State Appellate Court in Sims v. Besaw’s Cafe. He said this was a difficult social issue and staff tried to be careful and respectful in drafting the language. He said on Page 3 there were provisions referring to ORS Chapter 659; those were revised in the latest Legislative session and they were now 659A. He said that would be revised in the ordinance but it was not a substantive change.

Coun. Soth asked Rappleyea if he had reviewed other cities’ ordinances and the State statutes and if the proposed ordinance was based on that research.

Rappleyea said that was correct. He said the HRAC did a thorough review. He reviewed what the HRAC had done and compared it to other cities, counties and State law. He said the proposed ordinance was written from that review.

Coun. Stanton quoted from the agenda bill and asked if any cities or counties had passed ordinances for gender identity but not sexual orientation.

Rappleyea said he recalled that all cities and counties included both sexual orientation and gender identity. He said he would confirm that.

Coun. Doyle asked Rappleyea if this ordinance was similar to what the City did with other areas of the City Codes; was the City following the normal process of basing this on State law, State practices and State opinion.

Rappleyea replied that was correct and the City was following standard procedure.

Mayor Drake said the Beaverton community was very diverse; this ordinance would recognize that the community had changed and however anyone wanted to live was their own business, as long as it did not affect someone else. He said this was the law of the land and this ordinance said that Beaverton recognized and honored that.

HRAC Chair Jim Maguire said this was his third year on the HRAC and second year as Chair. He said Senate Bill 786 was introduced at the last State legislative session and it would have added sexual orientation and gender identity to the Oregon Revised Statutes. He said the City Council endorsed the bill and the Mayor testified on behalf of the bill in Salem . He said the Legislature had not taken any action on the bill and it died in committee. He said in October 2003 the HRAC voted unanimously to recommend to Council a local ordinance that provided the same protections currently in the Oregon Revised Statutes. He said they did this to demonstrate this was the right thing to do and to demonstrate to the State Legislature that this legislation was important and correct.

Maguire said the cities of Eugene , Lake Oswego , Portland , Bend and Salem , and Benton and Multnomah Counties , had local civil rights ordinances. He said the laws were well received and implemented, and the Portland law was upheld in the Appellate Court. He said Beaverton would join these communities in doing the right thing. He said this created a local non-discrimination ordinance, which included State protections and added the wording sexual orientation and gender identity. He said this was not in response to Ballot Measure 36. He said this ordinance created parity in the City Code by adding sexual orientation and gender identity; it did not add any special rights. He said this ordinance was needed because discrimination on the basis of sexual orientation was a harsh reality. He said all Oregonians deserved basic human rights under the law and it was important to pursue equity in the law to ensure basic rights for all Oregonians. He said a local ordinance in Beaverton was an important step in achieving this goal. He said 80% of Oregonians believed people should be protected from discrimination based on sexual orientation and gender identity.

Coun. Ruby asked if current Oregon statutes prohibited discrimination in all these aspects of life, based upon sex, but not sexual orientation and gender identity.

Maguire replied that was correct.

Coun. Ruby said there was case law that extended the protection against discrimination to sexual orientation and gender identity; however, that case law pertained to actions of State and local governments, and not other parties. He asked the City Attorney if that was correct.

Rappleyea said the language in applicable case law (Tanner v. OHSU) was very broad and it stated sexual orientation was equivalent to sexual discrimination. He said this was easily extended to a non-governmental agency. He said Federal case law (Heller v. Columbia Edgewater Resort Golf Club) also extended sexual discrimination to include sexual orientation.

Coun. Ruby asked about the exception prohibiting against discriminating on the basis of sexual orientation and gender did not apply to the lease or renting of space within a church, temple, synagogue, etc. (Sec. 5.15.040A.1). He said he assumed this appeared in other model ordinances and the reason was to give special latitude to religious groups. He asked why the exception was only limited to sexual orientation and gender identity. He said as an example, he was aware that certain religious groups did not allow women to pray in the same premises as men. He asked why the exception wasn’t broader to include sex, as well as sexual orientation.

Rappleyea replied the U. S. Constitution prohibited government from imposing religious viewpoints and did not allow government to entangle itself in religious affairs. He said the ordinance made a clear exemption for that.

Coun. Ruby asked if the City Attorney was saying the issue he raised about men and women praying together was probably a settled issue under existing law.

Rappleyea said that was correct.

Coun. Soth quoted from Sec. 5.16.060 “…the Mayor and Council find that discrimination on the basis of sexual orientation and gender identity exists in the City of Beaverton and that state law does not clearly prohibit such discrimination.” He asked Maguire if he researched this and had a basis for that statement.

Maguire responded the Oregon Revised Statutes did not clearly prohibit discrimination based on sexual orientation and gender identity. He said there was case law where the Appellate Courts extended sex discrimination to sexual orientation and gender identity. He said the HRAC’s intent was to purposely add sexual orientation and gender identity to the groups already listed in State law. He said it was similar to what Senate Bill 786 would have done. He said in his experience in Beaverton , he and his partner were discriminated against when they tried to rent a one-bedroom apartment and they were turned down twice. He said if the ordinance went to public hearing, people would come forward to share their experiences with the Council. He said this was a big step forward in showing the City of Beaverton honored all of its citizens and all families.

Coun. Soth said the U. S. and Oregon Constitutions said “all citizens” and did not refer to citizens of certain ancestry. He asked if that was the approach used in the development of the ordinance.

Maguire said one of the guiding reasons he wanted to see the ordinance adopted was he was a firm believer in “all men are created equal” and that statement in the Constitution had not always been applied. He said he believed this ordinance would put the City of Beaverton on the side of right when it came to discriminating against two marginalized communities, which it was still okay to discriminate against in this country.

Mayor Drake said in the first year of the Youth Advisory Board, at the first Youth Summit one of the major topics was sexual orientation. He said it was enlightening and sad because the discussion was very heated and people were polarized on the issue. He said the kids related incidences about early discrimination based on perceived or real sexual orientation. He said it struck him that it was learned early and continued. He said in being consistent with the values of the Council, regardless of lifestyle, discrimination was not to be tolerated.

Coun. Stanton said she also attended that Summit and remembered that discussion. She asked if the HRAC voted on this.

Maguire said the HRAC voted unanimously in favor of this ordinance.

Maguire said the ordinance set a strong example for youth and would send a message to the LGBT (Lesbian, Gay, Bisexual and Transgender) youth that their life and experiences were just as important as the lives and experiences of non-LGBT youth. He said according to the Youth Suicide Prevention Task Force, in Oregon youth suicide was the second leading cause of death between those aged ten and 24; the U. S. Department of Health and Human Services found that suicide was the leading cause of death for gay and lesbian youth. He said youth experienced harassment in schools; those at greatest risk for harassment were those who were perceived to be gay, lesbian o r b i-sexual. He said these students were three times as likely to attempt suicide as compared to those who were not harassed. He said this ordinance would send a strong message to youth that it was not okay to discriminate based on perceived sexual orientation.

Coun. Doyle said after the first Youth Summit, the Valley Times wrote a moving piece about what the kids go through and what they had to deal with if they were perceived to be different. He said the treatment they received was not normal.

Coun. Soth asked Maguire if he was a registered voter and if any of his friends were ever refused voting privileges for any of the reasons enumerated in the ordinance.

Maguire said he was a registered voter and he did not believe anyone was refused their right to vote.

Coun. Soth stated the voting rights in the Constitution applied to all citizens.

Mayor Drake asked for Council direction.

Coun. Stanton said she spoke previously with the City Attorney regarding Sec. 5.15.040 E.3 which did not flow well; she suggested incorporating 3 into E. She asked for clarification on the issue that current State laws did not give any of these protections to persons with sexual orientation or gender identity issues.

Rappleyea explained State Statutes (ORS) did not include sexual orientation and gender identity. He said State case law stated these rights were present for sexual orientation and gender identity, and the City would follow case law.

Coun. Stanton asked if the Legislative Review Committee normally looked at new case law and brought legislation forward to incorporate it into the ORS.

Rappleyea, said typically that would be done if it was a clear cut issue. He said on difficult and controversial issues, the bills don’t always go through, as in this case.

Mayor Drake said the hearing on the Senate Bill 786 was held but no action was taken by the Committee.

Maguire said the Legislative majority said this bill was not on its priority list.

Coun. Doyle asked if Lake Oswego ’s ordinance helped the city correct problems. He said he had not read anything on the results or impacts of this ordinance.

Rappleyea said there were the two cases noted earlier; Besaw’s Café and Columbia Edgewater Resort Golf Club. He said the Bureau of Labor said it investigated 20 cases per year on claims made under Portland ’s Civil Rights Ordinance.

Mayor Drake asked if the Council was comfortable with having the City Attorney cleanup the one section requested by Coun. Stanton and then bringing the proposed ordinance forward for a public hearing.

There was Council consensus to proceed.

CITIZEN COMMUNICATIONS:

Rev. Ja West stated her viewpoints on various religious and social issues.

Pavel Goberman, Beaverton , said youth often used the Library computers in the adult section when adults were waiting to use them. He said the Police Department had inaccurate records regarding him. He had asked that the records be deleted and nothing was done. He said his freedom of speech and human rights were violated by the City. He said he was an official write-in candidate for State Representative for District 28, which he previously informed Council of, and he was not invited to the Candidates’ Forum. He said he wanted to know why. He said he called the Mayor and did not get an answer. He said he wanted the City to obey the law and invite him to participate in the forum. He said otherwise he would file a lawsuit against the City for violation of the Constitution.

Mayor Drake explained he had the City Attorney respond to Goberman’s previous calls. He asked the City Attorney to repeat his previous response to Goberman.

Rappleyea explained the question was whether Goberman could appear at the Candidate’s Forum that the Beaverton Citizens for Community Involvement was sponsoring. He said the invitations that went out were for the official candidates to make presentations. He said as a government, the City could not promote one candidate or the other. He said that was why the decision was to invite official candidates and give them an equal amount of time to make presentations. He said if it was opened to anyone who could be a write-in candidate, it would not be an efficient presentation.

Goberman objected saying the City could not make that law.

Mayor Drake said the criteria was that the participants be official candidates as recognized by the Secretary of State.

Coun. Soth asked Goberman if he was in the Voter’s Pamphlet.

Goberman replied no, he was not in the pamphlet.

Henry Kane, Beaverton , stated he distributed to Council a seven-page analysis of the proposed Civil Rights Ordinance. He said in the analysis he pointed out areas he felt should get additional attention. He said there should be a penalty, and the enforcement official or agency should be listed. He said there were a number of problems in the ordinance which he hoped the City Attorney would address. He asked what the City was trying to accomplish and said it should be defined.

Catherine Arnold, Beaverton , said she questioned if Ballot Measure 37 would help or hurt citizens, and what it meant to city governments. She said at first glance the measure sounded fair, but a closer look showed it was the opposite especially for citizens in urban areas. She said BM 37 removed protections for homeowners because it allowed someone to develop their own property without regard to the affect on the neighbors. She said new land use regulations would not be effective and current regulations would be applied sporadically. She said the affect on local government was unclear and the measure would end up in court for clarification. She said in talking to people, it sounded like cities would end up in court for enforcing or waiving rules. She noted the Hillsboro Argus called this measure “a wolf in sheep’s clothing” because it was represented as protecting property rights but it was an attack on Oregon ’s land use planning system which the State’s voters have upheld several times. She noted governments would have to create a new bureaucracy to process the claims this measure generated. She said if the owners did not like the decisions, they could still go to court adding another layer of expense. She said she was concerned because this issue would confuse Beaverton voters, and most citizens would end up paying for the few who would benefit. She encouraged the Councilors to become familiar with this measure and consider taking a position on it, for the good of the citizens.

Coun. Doyle asked Arnold what position she felt the Council should take.

Arnold replied she would like to see the City take a position that this measure was not good for the citizens and they should vote “no” on Measure 37.

Coun. Doyle said this posed some interesting repercussions if BM 37 became law.

Arnold said the measure would make it easier for some to avoid planning laws forever. She said there was the likelihood that any regulation passed by the Council would not mean anything in the future; but the City would still have to meet State requirements.

Coun. Doyle said the measure begged real problems that could be fixed in other ways. He said hopefully those who have the power at the State level to fix these problems would start working to do so.

COUNCIL ITEMS:

Coun. Stanton said the Voter’s Forum would be tomorrow night, October 12, 2004 , at 7:00 p.m. in the Council Chambers. She invited all interested citizens to attend. She noted on Friday, October 15, 2004 , Congressman David Wu and Republican candidate Goli Ameri, would be debating at Liberty High School at 8:00 a.m.

Coun. Stanton noted for the record that she and Ms. Arnold were not in collusion; however, she said she would like to see the Council take a s tand against Ballot Measure 37 (BM 37). She distributed copies of a proposed resolution opposing BM 37 which she wanted Council to adopt. She said she felt this measure was a disservice to the citizenry and any seated body. She explained Federal law was not affected by the measure; many land use and wetland issues were governed by the Department of the Interior, so BM 37 would not apply. She said she thought many people were concerned about the Goal 5 issues in the Tualatin Basin and if the issues fall under the Federal government regulations the measure would not apply.

Coun. Stanton said the speakers for the Westside Economic Alliance breakfast forum on October 21, 2004 , would be Lane Shetterly, Director of the OR Department of Land Conservation and Development, and David Bragdon, Metro Council President, and they would be presenting “Do Our Land Use Laws Control or Constrain Oregon ’s Future Growth.” She said the Legislature needed to look at Senate Bill 100 and current land use laws and look for common-sense approaches to some of the constraints on long-term property owners outside of Urban Growth Boundaries.

Coun. Doyle said Saturday, November 20, 2004 , the Police Activities League (PAL) would hold its annual auction at the Embassy Suites in Tigard.

Coun. Soth reminded Councilors to register for the League of Oregon Cities Conference on November 4 and 5, 2004.

STAFF ITEMS:

Finance Director Patrick O’Claire reminded Council of the Budget Committee meeting on Thursday, November 18, 2004 , at 6:30 p.m. in the second floor conference room at City Hall.

CONSENT AGENDA:

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

Minutes of Special Meeting of September 27, 2004 and Regular Meeting of October 4, 2004

04205 - Liquor License: New Outlet - Hot Plate Asian Cuisine; Atlas International Food Market

Mayor Drake noted Coun. Stanton submitted changes to the September 27, 2004 Minutes, which were given to the Recorder.

Question called on the motion. Couns. Doyle, Ruby, Soth and Stanton voting AYE, the MOTION CARRIED unanimously. (4:0)

RECESS:

Mayor Drake called for a brief recess at 8:05 p.m.

RECONVENE:

Mayor Drake reconvened the meeting at 8:10 p.m.

OTHER BUSINESS:

Resolution in Opposition of Ballot Measure 37 (Takings)

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that the Council support a Resolution in Opposition to Ballot Measure 37.

Coun. Stanton noted Councilors had a copy of the resolution and she encouraged Council to adopt the resolution because she felt this measure was not in the best interests of the citizens or the City. She said the Comprehensive Plan and Development Code were crafted over time to meet the needs of the citizenry and she was concerned Ballot Measure 37 would throw the Comprehensive Plan out the window.

Mayor Drake said this measure created more confusion rather than less, it was extremely costly with no funding source, and it treated people differently.

Coun. Doyle said he was comfortable with moving forward on this because he had heard the opposing side extensively on other occasions. He said he read a great deal of information on BM 37 and he was comfortable taking a position on this resolution.

Coun. Soth said he felt this should be passed. He said everything in the measure would depend on appraisals by certified appraisers and these issues could be tied up for a long time, especially going through the court system. He asked if the City Attorney reviewed the resolution to ensure it conformed to the City’s existing ordinances and codes.

Mayor Drake said he was the author of the resolution and it was not done on staff time. He said the City Attorney reviewed it for legal accuracy, but not on City time.

Coun. Ruby said he appreciated the information. He said he was respectfully declining to take a position on the resolution because he thought it was better to not take positions on ballot measures until the Council had a format where both sides could present their case before Council took a s tand on a measure.

Coun. Doyle said he appreciated Coun. Ruby’s position and he had heard both sides of the issue. He said he hoped the State Legislature would address the problems with land use regulations.

Mayor Drake said he thought BM 37 opened doors its authors had not intended. He said it was poorly written and created many problems that were difficult to overcome.

Coun. Stanton read to the audience the resolving paragraphs of the resolution for those watching the meeting on television.

Coun. Stanton said she wanted to amend her motion to include additional language in the second Be It Resolved paragraph to say “...urges all Beaverton citizens and elected city officials to actively oppose…”. Coun. Doyle, as seconder, agreed to the amendment.

Question called on motion. Coun. Doyle, Soth and Stanton voting AYE, Coun. Ruby abstaining, the MOTION CARRIED. (3:0:1)

ORDINANCES:

Suspend Rules:

Coun. Doyle MOVED, SECONDED by Coun. Stanton , that the rules be suspended, and that the ordinance embodied in Agenda Bill 04027 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. (4:0)

First Reading :

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

04207 - An Ordinance Annexing Property Located at 15865 SW Division Street to the City of Beaverton : Expedited Annexation 2004-0011 (Ordinance No. 4323)

ADJOURNMENT

There being no further business to come before the Council at this time, the meeting was adjourned at 8:25 p.m.

APPROVAL:

Approved this 18th day of October, 2004.

__________________________________
Rob Drake, Mayor