BEAVERTON CITY COUNCIL
REGULAR MEETING
SEPTEMBER 20, 2004

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, September 20, 2004 , at 6:35 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, Deputy Police Chief Chris Gibson, Development Services Manager Steven Sparks , Associate Planner Sambo Kirkman , Auxiliary Services Program Manager Scott Keller and City Recorder Sue Nelson .

PRESENTATIONS:

04193 - Metro Goal 5 Update

Metro Councilor Susan McLain reviewed a new Metro program entitled “Fork It Over.” She said this was a waste reduction program designed to reduce the amount of food waste in the waste disposal stream. She said the goal of the program was to send safe and edible food to the needy. She said they were working with businesses throughout the region to deliver safe, refrigerated food that was not used, to non-profit organizations to be distributed to the needy. She said this was a successful program and she appreciated the participation by Beaverton businesses.

McLain reviewed the solid waste disposal rates; she explained Metro was a fee-for-service government, which meant it did not have a tax base; funding came from bond measures, fees for service, excise taxes and one tax program for management and operation of the Portland Zoo. She said the audit report for the Portland Zoo was released today; Metro staff would be analyzing the audit. She expressed appreciation to the Zoo Foundation for their fund raising.

McLain said Metro was looking at resurrecting HTAC (Housing Technical Advisory Committee) for affordable housing. She explained this Committee was made up of people from the public and private fields; they had worked for over 18 months to find ways to encourage affordable housing in the communities. She said the Metro Council will discuss this issue on September 21, 2004 .

Coun. Soth asked regarding affordable housing, what effect the reduction in the Federal Section 8 Program would have on Metro’s programs or projections.

McLain replied she had not yet read the information. She explained Metro just started re-initiating discussions on affordable housing; it did not have programs or answers to offer yet.

Coun. Doyle said he looked forward to receiving the list of the restaurants participating in the “Fork It Over Program.”

Coun. Stanton asked regarding affordable housing, if HTAC would look at multi-family housing or single family housing.

McLain said she would assume they would look at both since home ownership was not possible for everyone.

Coun. Stanton urged McLain to include multi-family when this was considered. She said a study conducted in Washington County had determined that a family of four would have to make $30,000/net annually to be at 150% of the poverty line. She said that was not easy to do.

McLain said that was why Metro was trying to put the Committee back together to work on these issues.

McLain then reported on Goal 5. She said she and Mayor Drake served on the Tualatin Basin Resource Study Coordinating Committee. She said the Committee was reviewing an intergovernmental agreement with Washington County and the cities in Washington County , regarding what they consider to be a good idea for a basin approach for Goal 5, Fish & Wildlife Habitat. She said this was the most complicated and controversial project they had dealt with. She reviewed the work going into Goal 5 including amendments to the map and inventory. She noted the cities have different issues that need individual consideration. She said Metro was working to support the cities on the Tualatin Basin project.

Coun. Stanton asked if the meetings were still at the Beaverton Library at 1:00 p.m.

McLain said they were and the next meeting was September 27, 2004 .

Mayor Drake said the reports just became available to the Basin members and he would distribute the report to the Councilors.

McLain said she would check to see if the reports could be put on the Web page.

Coun. Soth said Washington County was unique because it was the only County drained by one river system, the Tualatin River . He asked how Metro considered the property owners outside its jurisdiction in order to deal with Measure 37.

McLain responded all the water partners agreed that the basin approach and watershed approach were the only way to care for those water systems. She said that was why they entered into an intergovernmental agreement with Washington County since the County has the opportunity to make decisions in the areas outside the Urban Growth Boundary. She said they accomplished this by working with the partners who have these responsibilities. She said it was a combination of programs and applications that would take care of the watershed.

Coun. Doyle said his concern was the speed at which Metro wanted to approach and solve these problems. He urged them to take their time because this would have a huge impact on the entire area. He said the Council heard information about the inaccuracy of the maps and other information being used. He urged them to take another year to establish accurate information.

McLain responded they had been working on it for eight years and could add another year. She said they would do this work pragmatically.

Coun. Bode said the amount of misinformation given to the public was appalling. She said the lack of definition of universal terms was a big concern. She said she wanted to see a “black and white definition” of riparian area, canopy and other terms. She said the inability to define these terms did not make County and Regional Government look people or community centered. She urged Metro to work hard on this and stressed the clarity and purposefulness with which Metro guided this project would benefit everyone.

Coun. McLain assured her they were working hard on these issues.

Coun, Stanton said she was concerned about the National Marine Fisheries Services (NMFS) requirements under the Endangered Species Act to protect salmon and steelhead smolt. She said what Metro developed under Goal 5 would impact what the City had to do to address the NMFS requirements. She asked what Metro was doing to include those issues, so the NMFS requirements do not have to be addressed separately when the Goal 5 work was completed.

McLain responded all the partners were looking at this through the Metropolitan Advisory Committee, on which Mayor Drake served. She said the issue involved terminology and definitions, and it was being worked on carefully and precisely.

McLain said she brought greetings from Metro Councilor Carl Hosticka.

04193 - Presentation of Solid Waste and Recycling Program

Auxiliary Services Program Manager Scott Keller updated Council on the City’s Solid Waste and Recycling Program. He explained the Oregon Legislature established recycling goals for the State of Oregon , and the Portland Metro region was given a goal of 62% of the solid waste being recycled by the year 2005. He said the region was currently at 54% and Metro was updating its Regional Solid Waste Management Plan for 2005-2015, which would update these figures.

Keller said to reach this goal they were focusing on three areas: Commercial recovery; Construction demolition; and Organics. He said the City worked with the six franchised waste haulers to achieve this recycling goal. He said they previously focused mainly on residential and were now beginning to focus on the business sectors.

Keller reviewed the Think Inside the Box Program to encourage recycling by businesses; the City has provided 5,000 recycling boxes to Beaverton businesses to date. He said the City was working to establish pilot recycling programs in multi-family complexes. He said over the past year, staff conducted 97 site visits, 319 contacts and delivered 10,000 education packets to tenants and property managers to educate them about recycling. He said they also provided signage and recycling bags to help tenants get their recycling to the recycling bins. He said based on the information from these programs, the City was awarded a grant in the amount of $32,075 to expand the education and outreach in the multi-family sector. He said over the next year staff will focus on reaching other apartment complexes in the City.

Keller noted in addition to these programs, the City conducted two electronic recycling events, initiated a business newsletter regarding waste recovery and waste prevention, and held two home compost bin sales. He said they were also planning on completing four to six programs for public access television and the City will participate in a regional outreach program next spring to increase the quantity and quality of recycling in businesses and homes. He said the goal was to maintain a high level of service for the citizens and businesses in Beaverton .

Coun. Soth asked if the percentage goal for recycling included the bottles and cans on the deposit list.

Keller replied that was correct.

Coun. Soth stated the education factor of recycling in multi-family complexes was very important. He said when the complex managers changed, if the new managers did not support the program it was difficult to get the program going with the tenants. He said follow-up calls were necessary when managers changed, to get their support.

Keller said they experienced that and have continued regular contact and on-site visits every three to four months because the managers moved as often as the tenants.

Coun. Soth stated there were at least seven different kinds of paper in every office and all could be recycled.

Coun. Stanton thanked Mr. Keller for his presentation.

CITIZEN COMMUNICATIONS:

Barbara Wilson, Beaverton , said she was surprised to read in the Valley Times that the Council opposed Ballot Measure 34, the Tillamook 50-50 Plan. She said she felt it would have been important for the Council to hear from the public about this measure. She noted the vote to oppose the measure was 3-0 and she said there was a lot of confusion about Measure 34 and much of what was in the Valley Times article was incorrect. She thanked Coun. Stanton for not voting on the resolution since Coun. Stanton did not have enough information to make a judgment. She stated there were two new studies available to the public on the economic benefit of recreational activities in the forest; one by Phil Ruder, Pacific University and one by John Powers, University of Montana . She asked the Council to review these studies.

Wilson stated she did not think a forest fell into the category of a crop. She said she thought people who opposed this measure had never been in the Tillamook Forest or seen its magnificence and beauty. She said after the burns in the 1930’s, the ecosystem only needed a few years to regrow. She said the forest was the closest she got to her god and to walk the forest when it had been clear-cut would make one sick. She referred to comments made by Coun. Soth when this was considered. She said Measure 34 did not lock up logging. She said under Measure 34, a board of experts in forest sciences would be appointed to review and manage 50% of the forest; the other 50% of the forest could still be logged by the timber companies. She said under the current program, the people who managed the forest were the people who had the most to gain financially; the timber companies. She said it was time to get real about Measure 34 and what it meant.

Coun. Soth asked Wilson if she was around in 1933, 1936, 1939, 1942 and 1945. He said he was and he saw the burns and the results. He said he saw soils burned so badly that nothing regenerated in those areas. He said his footsteps, and those of his children, were in parts of the forests where they replanted the trees in the early 1950’s. He said they were now seeing the regeneration from those replantings as the log trains go through Beaverton . He said his point was that without that manual reforestation, as well as some aerial seeding, much of what one saw today would not exist. It would still be very sparse and inaccessible. He said when that land was turned over to the State and Counties by private owners, who could derive no benefit from it because of the burn damage, it was put into public ownership and was designated to be a resource for everyone under multiple management practices. He explained the State Forestry Division and the Oregon State Forest Practices Act now governed what happened in the forest. He said it now furnished a great deal of income to the counties who were subjected to the fire and whose income was diminished and eliminated by the lack of income from those woods. He said for all those reasons it provided an economic base for Washington , Tillamook and Clatsop Counties when the income from that logging was used. He said he knew the managers of that forest and they were not cut-and-run people.

Wilson stated when clear cutting occurred in the Tillamook it no longer was multiple use; erosion went into the streams and killed the fish. She said there was economic benefit to recreational opportunities and the studies she mentioned earlier illustrated these benefits, so the forest should not be clear cut.

RECESS:

Mayor Drake called for a brief recess at 7:40 p.m.

RECONVENED:

Mayor Drake reconvened the meeting at 7:45 p.m.

Mayor Drake explained the remainder of Citizens Communications would be heard after the public hearing.

COUNCIL ITEMS AND STAFF ITEMS were heard after the Second Reading Ordinances

CONSENT AGENDA:

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

Minutes of Regular Meeting of September 13, 2004

04195 - A Resolution Adopting an Intergovernmental Agreement with Metro Regional Government for Implementation of the Annual Waste Reduction Plan (Resolution No. 3778)

04196 - A Resolution Adopting an Intergovernmental Agreement with Metro Regional Government for Commercial Technical Assistance Program Funding (Resolution No. 3779)

04197 - A Resolution Adopting an Intergovernmental Agreement with Metro Regional Government for Multifamily Recycling Education and Outreach Funding (Resolution No. 3780)

Contract Review Board:

04198 - Bid Award - Traffic Signal Installation at Farmington Road and Erickson Avenue Project No. 5045

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

PUBLIC HEARINGS:

04199 - APP 2004-0002 Appeal of SW Hills Baptist Church Private School (CU 2004-0002)

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 (in the record).

Grillo asked if any of the Councilors had a potential or actual conflict of interest.

None were declared.

Grillo asked if any of the Councilors had an ex parte contact to declare.

Coun. Bode said at the Picnic in the Park she met the minister of the Church and he told her the issue might be coming to the City Council. She said her only response was that she looked forward to hearing the matter and receiving the information, if it came to Council. She said they did not discuss the merits of the case.

Grillo asked if any Councilor wished to declare any site visits.

Coun. Soth said he recently visited the site and he was on the Planning Commission in 1980 when this first came before the City.

Coun. Stanton said she drove through the site and had used the Church parking lot when attending the Picnic in the Park at Hiteon Park .

Coun. Doyle said he lived nearby and went by the area all the time.

Coun. Bode said she lived in that neighborhood and was familiar with the site.

Grillo asked if any member in the audience wished to challenge the right of any Councilor to consider this matter or challenge the right of any Councilor to participate in this hearing, or wish to request a continuance of the hearing to a later date.

There were no challenges or requests for continuance.

Grillo concluded the prepared statement.

Development Services Manager Steven Sparks and Associate Planner Sambo Kirkman introduced themselves. Sparks explained the Council was hearing the appeal of the Planning Commission’s decision to approve the private school at the SW Hills Baptist Church. He said the item under appeal was a condition of approval which limited outdoor activity on the site related to the school use. He said staff and the appellant communicated over the past two weeks to discuss the appealed condition and they believed they had reached a compromise on the condition. He said the staff recommendation was that Council approve the Conditional Use as approved by the Planning Commission, but to change two conditions of approval (Conditions No. 5 and No. 8). He noted Council received a staff memorandum from Ms. Kirkman dated September 20, 2004 , that outlined the revisions to Conditions No. 5 and No. 8.

Coun. Ruby said the prior staff memorandum dated September 9, 2004 , had other proposed revisions to Condition 5, regarding control of outdoor loudspeakers. He asked if the September 20 th memorandum was intended to supercede that and if the compromise was that the Planning Commission’s Order would be upheld with only these two revised conditions.

Sparks replied that was correct; only Conditions 5 and 8 were revised. He said there was an additional change to Condition 8 that was in the September 20 th memorandum. He said the appellant asked to change the date on Condition 8 from November 1, 2004 to December 1, 2004 . He said staff felt it was an appropriate change.

Kirkman explained the Land Use Order was on Page 44 of the Council’s packet. She said staff’s recommendation was to revise Conditions 5 and 8, and the other conditions would remain, which included the loudspeaker condition referenced in Condition 6 of the Land Use Order.

Coun. Ruby confirmed with staff that all other conditions would remain as stated in the Land Use Order.

Coun. Soth asked if the appeal was directed toward Condition No. 5.

Sparks replied that was correct.

Mayor Drake asked if the Council was acting as the Planning Commission since this was a de novo hearing.

Sparks said that was correct; this was a new hearing and the entire Conditional Use request was before the Council. He said staff’s recommendation was to uphold the Planning Commission’s decision, except for the modifications to Conditions 5 and 8.

APPELLANT:

Herb Grey, attorney, Beaverton , said he was representing appellant David Cole/SW Hills Baptist Church. He said this appeal was filed in reference to Condition 5; however, Condition 8 was included in the consideration because the appellant felt since it was a condition for sound mitigation, there was no need for Condition 5. He said the appellant reached agreement with City staff on those conditions. He said there were two reasons this was brought before Council. He said Condition 5, in its original form, prohibited any outside activity involving children on the part of the school. He questioned if it was reasonable to condition school use on children never being able to go outside during the school day. He said the second question was if it was reasonable to require sound mitigation if the school use was conditioned on the children never being able to go outside. He said he felt the answer to both of these issues was no. He said the church wanted to determine conditions whereby the children would be allowed to go outside during the school day and to get approval for a fence that will be a sound reducing barrier to address the neighbors’ concerns. He said he felt this was achieved with the revised conditions.

Grey referred to Map A1.1 (in the record) that indicated the site and surrounding area.

He said the church was proposing to build a sound reducing barrier in the same location as the existing fence; this would be almost 1,000 feet of fence. He said this would be a solid barrier to reduce the sound level by five decibels at the property lines. He said Engineer Kerry Stanly reviewed the design and said it would accomplish the sound reduction (in the record); the fence will be eight feet tall at the property lines to help accomplish the sound reduction.

Grey reviewed the concerns the appellant had with the Planning Commission’s action. He said after the hearing was completed, the Commission met with staff and revised the conditions. He said the Commission should have held the record open or contacted the appellant to let them know the Commission and staff had made some revisions. He said the second concern was that there was considerable testimony from a few neighbors about sound impacts. He said the Commission was turned around by the noise complaints and “lost sight of the forest for the trees.” He said the only evidence in the record concerning sound impacts was the Stanley Noise Study that made it clear during the period of the study (when the home school co-op was in session) the children had not generated more than three decibels of noise; which was indistinguishable from the ambient noise in the area. He said if the Council looked at the charts in the Stanley Study, a thunderstorm, an airplane and traffic, generated more noise than the children. He said the third concern was the Commission ignored the effect of the sound mitigation measures included as Condition 8. He said their last concern was the Commission was unaware of what activities were planned for the school. He said if Council looked at the record, the materials clearly specified morning, lunch and afternoon breaks. He said it was clearly noted they were not building playground equipment; the children would occasionally go across the street to the park for playground activities.

Grey said they submitted a barrier (fence) design that would provide a five decibel reduction. He said the Commission implicitly approved it when they required Condition 8; but it had not officially approved it. He said on their Notice of Appeal, one of the basis of the appeal was a violation of their RLUIPA (Religious Land Use and Institutionalized Persons Act of 2000). He referred to the evidence in the record, particularly David Cole’s affidavit, and said there was a dramatic difference between the way the church school was being treated versus public schools in the area. He said Southridge was the last school that was built and it was allowed 55 decibels of noise at the property line. He said the church school was being asked to adhere to a five decibel reduction from existing ambient noise. He stated this was a dramatic disparity between what was expected of other schools in the area.

Grey said under RLUIPA, the test was “is there a substantial burden on the religious exercise” and the case law interprets that to mean “becomes effectively impracticable.” He gave examples of case law which he said supported the appellant’s argument of substantial burden and said he felt the same thing was in effect here if Conditions 5 and 8 were not changed. He said the second part of the RLUIPA test was that there had to be a compelling government interest. He said in this case the compelling government interest was to limit sound and maintain the livability of the neighborhood. He said if one looked at the conditions imposed on the other schools in the area, they were not expected to do this. He said the third part of the RLUIPA test was the “least restrictive means of accomplishing the purpose.” He said there were many things they could do to minimize noise impact besides restricting children from going outside. He said it was apparent the Commission was mostly right, with exception of a few key points and that was where the appellant was seeking Council’s assistance.

Coun. Soth asked Grey if the noise objection was directed at existing activities connected with the Church rather than the school.

Gray replied that was correct.

TESTIMONY IN SUPPORT OF APPEAL:

Pastor Rick Elzinga, Beaverton , said they were excited about their plan for the school. He said it was a unique school that combined the strengths of classroom education with the strengths of home schooling. He said students would be in classrooms three days a week and at home working with their parents two days a week. He said they believed by melding these two models they could produce intelligent, successful and caring students. He said a lot of the wind was taken out of their sails through this process. He said they had to spend many thousands of dollars more than they budgeted to get this Conditional Use Permit. He said they had to hire engineering and consulting professionals and they were amazed at the level of detail required by the Planning Commission; it was not commensurate with the size of the project. He said it was unfair to approve the CUP and then say the children could not go outside; this would not work for a school. He said requiring them to build the sound fence was unfair because the play areas the children would use were 200 feet from the nearest neighbor. He said other schools did not have to do this. He said they had no physical education classes or organized sports outside. He said they would try to address these issues as best as possible.

Coun. Soth asked if, in the process of the normal day, the children would go outside the building to the Park District playground.

Elzinga said the children would be outside when arriving and leaving the school, during the breaks and lunch hour. He said they had permission to use the park across the street to move the noise from the neighbors’ area. He said the closest play area to any neighbor had a 200 foot setback and the sound barrier would be built. He said they agreed to this, though they do not see any other schools in the area having to do this.

Susan Anderson , Beaverton , home school parent representing the home school co-op, said the children in the school range from three-years to high school age; they studied history, biology, chemistry, algebra, sewing, cooking, and quilting. She said they did projects for the community hospitals and retirement homes. She said the kids did not fight or use foul language.

Rosealee Francetich, Tigard, indicated she supported the appeal though she did not testify.

Jolaine Davis, Dundee , said she was a certified teacher in Oregon ; she taught in public and private school for several years. She said when she investigated the co-op; she was amazed at the high quality of teaching. She said the teachers were certified and the children were incredibly respectful, kind and hard working. She said she had worked for the co-op for one and one-half years. She reviewed the classes she taught and her experience with the children. She said it would be very sad to close the school down.

Coun. Soth asked if she and her children commuted from Dundee on the school days.

Davis said she did. She said she researched the public and private schools in the Dundee area and she could not find another school that matched what she was looking for in terms of high quality and care for the children.

Coun. Bode asked Davis to clarify the school schedule. She asked if the students were there Tuesdays and Thursdays, with no groups there on Mondays, Wednesdays and Fridays.

Davis said that was correct. She said if the private school was approved, it would run on Mondays, Wednesdays and Fridays. She said there would be two different groups (Tuesday/Thursday and Monday/Wednesday/Friday) and the school would be in session five days a week.

Ian Hanley, Beaverton , indicated he was in favor of the appeal though he did not testify.

TESTIMONY IN OPPOSITION TO APPEAL:

Lynn Boe, Beaverton , said she lived on the corner next to the church property for 26 years. She said the majority of the landscaping along the property line consisted of Douglas Fir tree trunks, widely spaced, that did nothing for sound or privacy. She said they were not planted in accordance with the original Conditional Use Permit; they were supposed to plant five to six-foot trees and instead planted one-foot trees. She said there was a change of story regarding outside activity since the initial informal meeting the neighbors had at the church with the church staff. She said the church staff said originally there would be no outside activity, then at the Planning Commission they said they wanted to have lunch outside and now it has proceeded to lunch and breaks. She said the noise was not indistinguishable from other daily noise when the children were at the property line climbing the fences and the trees. She noted there was a potential for having one to two-hundred children at the school at one time. She said her main concern was the fence sound wall. She said it was supposed to be a solid wall and the design had changed to horizontal 1x8’s and she questioned what would happen when the wood dried and shrank. She said based on her 26 years of experience, she was skeptical about maintenance of the fence when the wood shrank and needed to be replaced.

Mayor Drake said he expected the fence would be treated to resist warping and elongate the life. He said if something was not happening which she felt should happen as part of this approval process (such as fence maintenance), she had every right to talk to Code Enforcement. He said he always started from the positive side and hoped it would work for everyone.

Coun. Soth asked Ms. Boe what her doubts were regarding a wood fence verses a masonry fence.

Boe said her concern was the shrinkage of the wood.

Jon Greenblattt, Beaverton , said he was resigned that the school would be starting and he wanted to see adequate planning to ensure the surrounding neighbors could enjoy their homes in reasonable quiet. He said when the additional buildings were constructed on the church site, they unintentionally created an amphitheater; when there was noise on the south lawn or in the parking lot, it bounced off the building and into neighboring yards. He said sometimes he could almost make out conversations being held on the property though the people may not think they were speaking loudly. He said they observed organized sports on the site, though previous testimony said there would be none. He said the only question was whether it was a school activity or a church activity. He said the participants were school-age children and the activity took place during the school year, if not during school hours. He said there was a volleyball net setup on the south lawn. He said in the memorandum it said the sound wall was meant to mitigate the noise from children’s arrival and departure. He said if the church wanted to have activities other than just arrival and departure, then the sound wall should block more than five decibels. He said when outside activities take place on the church property, voices are clearly audible above car and airplane noise. He concluded that because the original Conditional Use Permit for the church was granted without providing for possible noise problems associated with having a church located in a residential neighborhood, he was trying to anticipate what additional problems might be created by introducing a school onto the church site. He said he hoped some of the existing problems could be alleviated through conditions intended to anticipate and prevent additional potential problems caused by the installation of the private school.

Mayor Drake asked how long he lived in his current home.

Greenblattt said he lived there five years.

Mayor Drake asked when the new buildings were constructed.

Greenblattt said the buildings were constructed two to three years ago.

Tom Dagistino, Beaverton , said he lived southwest of the church. He said he was an engineer and studied audio engineering in college. He said it was stated that the noise level at the church was not significantly higher than other noises in the neighborhood, as measured by the sound engineer. He said that did not take into account that a correlated noise, such as a voice, at the same level as random background noise, was perceived differently by humans. Human hearing was more sensitive to noises such as voices; noises that measure the same will be perceived differently by the human ear.

REBUTTAL:

Grey said it was important to remember what was and was not an issue. He said going through this process helped them better understand the neighbors’ concerns. He said the issue here was balancing the interests of the property owners. He said it was important to remember the church was voluntarily undertaking the sound mitigation, even though it was different from what was expected of public schools. He said they did this because they felt it was important for the relationship with the neighbors. He said testimony was heard regarding children playing on the fence. He said that problem was addressed in a variety of ways; one remedy was to create more of a solid barrier between the church property and the neighbors. He said it was important to realize only three of thirteen neighbors opposed the project. He said the record did not reflect that the church was a bad neighbor. He said their objective was to be a good neighbor and not to have an escalating impact on the neighborhood. He said the record before the Council indicated the church’s proposed school and existing co-op will not dramatically change the character or livability of the neighborhood.

Elzinga responded to some of the concerns raised during testimony. He said the church staff had stated the children would be outside for breaks and lunch, but there would be no organized physical education or sports. He said there would not be 100 to 200 children along the fence line. He said the play area was 200 feet from the nearest neighbor and adults would supervise the children. He said there would not be gaps in the fence, even over time. He said it was a double layer fence; two layers of staggered wood. He said the volleyball game Mr. Greenblatt referred to was a church activity, not a school activity. He agreed perception of noise was different for different people; some have said there wasn’t a noise problem and others have said there was.

Coun. Soth asked if the design of the new fence will break up the sound.

Grey said their engineer, Kerry Stanley, said the fence would give the sound reduction imposed by Condition 8. He said it was designed with that in mind.

Coun. Stanton asked Grey if he, the church and the co-op were comfortable with the changes to Conditions 5 and 8.

Grey responded they were.

There being no further questions or comments, Mayor Drake closed the public hearing.

Coun. Soth MOVED, SECONDED by Coun. Doyle, that the appeal presented in Agenda Bill 04199 (APP2004-0002: Appeal of SW Hills Baptist Church Private School CU 2004-0002) with the revised Conditions No. 5 and No. 8, as presented in the September 20, 2004, staff memorandum to Council, along with the other conditions included in the Planning Commission Order 1715, be approved.

Coun. Soth said this was an example of the ability Beaverton citizens have to talk with each other to come to a reasonable agreement. He said he felt Beaverton was a very tolerant community and with the cooperation of the appellant, the neighbors and the City, they came to a good solution to this issue.

City Attorney Alan Rappleyea asked Coun. Soth to amend the motion to direct staff to prepare findings and to bring those findings back for the Mayor’s signature.

Coun. Soth explained that was implicit in his motion.

Mayor Drake explained that in the September 20, 2004 staff memorandum, Condition No. 8 said the wall needed to be built prior to November 1, 2004 . He noted staff recommended changing that date to December 1, 2004 .

Couns. Soth and Doyle accepted the revision of the date as an amendment to the motion.

Coun. Doyle explained though the process seemed onerous, it was the same process for every applicant. He said he was pleased they were able to come to a compromise and he appreciated the neighbors’ participation through the entire project even though they opposed it.

Coun. Stanton said she would support the motion and she thanked Ms. Boe, Mr. Greenblatt and Mr. Grey for addressing the criteria. She said she was pleased with the outcome.

Mayor Drake said the church was in a nice neighborhood and the balance in Beaverton had to do with maintaining livable neighborhoods. He explained this was a Conditional Use and everyone had the opportunity to be part of the process, which was beneficial. He said he did not see the Planning Commission’s denial having anything to do with religion or an infringement of Federal law. He said he saw it as a decision made based on the current use. He said it was not realistic to expect children to stay indoors or to treat this school any differently than any other schools in the city. He said the City had received noise complaints from people who lived near other schools. He said this had been a positive experience for the church and the neighbors. He said if he was voting, he would vote in the affirmative.

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

RECESS:

Mayor Drake called for a brief recess at 9:05 p.m.

RECONVENE:

Mayor Drake reconvened the meeting at 9:15

CITIZENS COMMUNICATIONS

Jeremy Rogers, Tigard, spoke regarding Measure 34 (BM 34). He said he was disappointed that Council took a vote opposing BM 34 without a public hearing. He submitted written comments, the language for BM 34, and two reports, Economic Realities in the Tillamook and Clatsop State Forests and Drinking from the Rainforest, for the record. He said BM 34 was an initiative on the November, 2004 ballot, that would balance timber production in the Tillamook and Clatsop State Forests with protections for clean drinking water sources, fish and wildlife habitat, and recreational opportunities. He stated the forest had grown back since the replantings following the Tillamook Burns and the current management plan neglected some of the values of the forest. He said BM 34 addressed the management plan and asked for a balance of values. He said BM 34 required the State to consider all the values of the forest equally when making management decisions on the forest. It also required that 50% of the Tillamook and Clatsop Forests be managed to protect clean water sources, fish and wildlife, and recreation; the other 50% be managed for timber production. He said the current plan would log 85% of the forests over the next few decades, and the protections in place for streams were minimal.

Rogers said he read the resolution adopted by the Council. He said the resolution was drafted by Tillamook County Commissioner Tim Josi, a vocal opponent of BM 34. He said it was frustrating that an opponent of BM 34 distributed the resolution but the supporters were not contacted to present their side. He said 85% of the people in Beaverton received their drinking water from the Tillamook Forest and the watersheds were not protected under the current management plan. He said the highest level of protection in the management plan was called Special Stewardship and the primary watersheds for the City were not included in the Special Stewardship classification. He said Structure Based Management, which was the basis for the current management plan, was an experimental plan and it had never been implemented on a coastal forest or on a forest the size of the Tillamook and Clatsop. He said there was no science to suggest that Structure Based Management protected watersheds, wildlife habitat or recreational opportunities. He said BM 34 included these protections. He asked that Council reconsider the resolution after reading the information he provided.

Coun. Stanton asked for clarification on the harvesting; 85% of the forest would be harvested over how long a period of time.

Rogers replied if current harvest levels continued, in 25 to 30 years 85% of the forests would be harvested.

Mayor Drake asked if these areas would be replanted.

Rogers replied they would be replanted.

Mayor Drake asked Rogers if he was a forester, and if he had talked to the Tigard Council or to the Joint Water Commission (JWC) Manager. He said he was concerned when Rogers claimed it would harm the water sources for the JWC, when the JWC Manager had indicated to him (Mayor Drake) it would not harm those sources.

Rogers said he was not a forester and he had not talked to the Tigard Council since it had not adopted a resolution opposing BM 34. He said he had not spoken with the JWC Manager but would be happy to do so. He said the current management plan did not prioritize protection of the drinking water sources. He said operating a public forest with an experimental plan that had not been proven to protect the values of the forest, was a mistake.

Coun. Soth said both he and the Mayor served as Beaverton ’s representatives on the Joint Water Commission. He said one of the issues when Barney Reservoir was expanded was the protection of that entire watershed. He said they tried to prohibit any recreational activity on that watershed but the State Fish & Wildlife Commission said some recreational activity had to be allowed, though motorized activities were prohibited. He said the JWC members had very specific guidelines and directions for protecting that source. He said in that regard there was no danger to the water supply for Beaverton .

Rogers replied that all streams and rivers in the forest need to be considered when protecting the water sources and the amount of activity around those streams could potentially damage water sources. He said he was concerned about the entire system.

Mayor Drake said he was responding to Mr. Rogers’ comments that the water source was in danger. He said he appreciated Mr. Rogers’ and Ms. Simpson’s comments, but he (Mayor Drake) had previously addressed this concern with the JWC Manager and received an affirmative answer that the water source would not be harmed.

Coun. Ruby said he appreciated Mr. Rogers’ comments and, as with any measure on the ballot, there were differences of opinions. He said he was not willing to revisit this issue because he felt he had assimilated the information. He said he thought the point about receiving public input before taking a position on a ballot measure was legitimate. He said he wanted to discuss this with Council before taking a position on any future ballot measure. He thanked Mr. Rogers for his input.

Shantu Shah, Portland , said he was an electrical engineer from India and was experienced in electrical distribution/transmission systems and the construction of these facilities, in India and the United States . He spoke in support of Ballot Measure 35 (BM 35). He stated the public had the right to decide what should be charged for electricity. He noted there were many PUD’s in Oregon that already provide electricity to many citizens at much lower rates than PGE (Portland General Electric). He said the private monopolies of electric companies, such as PGE and Enron, needed to be removed; and no private utility should have the monopoly on electric service. He said this would help ease the high cost of living for many Oregonians. He urged people to vote in favor of BM 35.

Coun. Soth said this issue was discussed a great deal. He said in 1937 Bonneville Dam was dedicated and the Bonneville Act specified the Bonneville Power Administration would provide power at cost to municipal utilities and other public entities. He said the problem now was that BPA only provided half of the power the utilities were distributing and BPA had to go to the private market to purchase power in order to provide what its customers required. He said because of that purchasing power, a small rate reduction was projected in October or November. He said the advantage with private enterprise was that Public Utilities Commission regulated private entities.

Shah said he was aware of the BPA setup, but he was concerned with distribution of electricity, not generation, and the public utilities provide 60% to 90% lower rates than PGE. He said that was why the middle man should be eliminated and electrical power should come directly from the source.

Lisa Melyan, Portland , said the People’s Utility District (PUD), was one of the measures on the November, 2004 ballot. She said several books were written regarding the Enron scandal, including Pipe Dreams and The Smartest Guys in the Room. She said the books stated Enron purchased PGE to manipulate the energy markets on the West Coast. She reviewed the information from the books and said PGE could not be separated from Enron. She said her main concern was that PGE annually estimated its tax burden, approximately $92 million, and collected it in the rates. She said this money was sent to Enron and then written off because Enron was in bankruptcy. She said while this was legal, she considered it stealing. She said she did not like the idea of 14% of the rates being sent to shareholders. She said PGE was for sale and reviewed the three purchase options available. She stressed the PUD was the only alternative that Washington County residents had control over. She asked the Council to consider this information when deciding whether or not to support a Washington County PUD.

Coun. Stanton thanked her for coming and giving her perspective.

Gary Stewart, Sherwood, said he represented the Citizens Against the Costly PUD. He said this committee opposed forming a new Washington County PUD because it was costly, unnecessary and risky. He said the breakup of a reliable electricity supplier would jeopardize people throughout the northern Willamette Valley and would put economic viability and electric reliability at risk. He said the Washington County PUD was a solution looking for a problem that did not exist. He said PGE did not want to be taken over by a new government utility. He said the PUD would sever PGE’s system at the County’s political boundaries at a high cost to rate payers in terms of rates and reliability He said the opposition to the PUD was growing rapidly and noted many elected officials and business people opposed the PUD. He said claims that PUD rates would be lower were unsubstantiated by facts. He said BPA was oversubscribed with its current customers and it was unclear if they could meet additional demand. He stated the new tax might start small, but taxes increase over time. He said it made no sense for Washington County citizens to pay $800 million for something they already have. He said the idea that a new government entity could take over a private utility that did not want to sell was not right. He concluded that Washington County citizens did not need the risks, costs and uncertainties associated with a new PUD.

Coun. Stanton asked where he worked.

Stewart said he worked as the spokesman for the Committee and this was his third campaign. He said he was a graduate student at Oregon State University.

Donna Schmidt, Aloha, Chairwoman of Citizens Against the Costly PUD, said she spoke with many citizens throughout the area about the proposal to dismantle PGE. She said they told her they were not ready to secede from PGE’s service territory, they were not ready to abandon their holdings in PGE’s facilities, they were not ready for an uncertain future in terms of rates, safety and reliability, and they were not ready for the additional costs of a new layer of government. She urged Council to oppose the PUD and Measures 34-95 and 34-96.

Coun. Stanton thanked Ms. Schmidt for her comments and stated this was a difficult issue. She asked Ms. Schmidt where she lived and worked.

Schmidt said she was a volunteer for the campaign and lived in Aloha. She said she worked part time in a field that had nothing to do with PGE and she was a former newspaper reporter. She said she worked for this campaign because she strongly believed government should not take over private companies.

Mayor Drake said PGE had significant resources in Washington County ; it paid property taxes and franchise fees to the City. He explained the PUD’s in the area have been around a long time. He said there was no guarantee if the proposed PUD was formed, that there would be replacement revenue to the cities of any kind and that was a major concern because that was how the City provided police and other services to the citizens.

ORDINANCES:
Second Reading

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

04190 - An Ordinance Amending Beaverton Code Section 6.02.250 to Create an Offense for Vehicle Parking in a Fire Lane Located on Privately-owned Premises Open to the Public (Ordinance No. 4321)

04191 - An Ordinance Amending Ordinance No. 4270 Authorizing the Sale and Issuance of Water Revenue and Refunding Bonds for the Purpose of Refunding the City’s Outstanding Water Revenue Bonds, Series 1994 and Series 1997, and Declaring an Emergency (Ordinance No. 4322)

Coun. Soth MOVED, SECONDED by Coun. Stanton , that the ordinances embodied in Agenda Bills 04190 and 04191, now pass. Roll call vote. Couns. Bode, Doyle, Ruby, Soth and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

COUNCIL ITEMS:

Coun. Soth stated on Thursday, September 23, 2004 , the City of Beaverton Senior Citizens Advisory Committee was sponsoring a Home Healthcare Seminar from 9:00 a.m. to noon at the Elsie Stuhr Center .

Coun. Stanton said on Wednesday night, September 22, 2004 , there will be an Open House regarding the Cooper Mountain Natural Area at the Jenkins Estate from 6:00 p.m. to 8:00 p.m. She also noted the Picnic in the Park would be September 21, 2004 , at the Five Oaks Middle School , from 6:00 p.m. to 8:00 p.m. for the Five Oaks, Triple Creek and West Beaverton NACs.

STAFF ITEMS:

There were none.

ADJOURNMENT

There being no further business to come before the Council at this time, the meeting was adjourned at 10:00 p.m.

APPROVAL:

Approved this 4th day of October, 2004.

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Rob Drake, Mayor