BEAVERTON CITY COUNCIL
REGULAR MEETING
AUGUST 7, 2006

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, August 7, 2006, at 6:35 p.m.

ROLL CALL:

Present were Mayor Drake, Couns. Catherine Arnold, Betty Bode, Bruce Dalrymple, Dennis Doyle, 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, Public Works Director Gary Brentano, Library Director Ed House, Human Resources Director Nancy Bates, Police Chief David Bishop and City Recorder Sue Nelson.

VISITOR COMMENT PERIOD:

Francine Kaufman, Portland, said she attended the Picnic In The Park at Schiffler Park where graffiti was discussed. She asked for clarification regarding how the City handles cleaning up graffiti on private property.

Police Chief David Bishop explained the process for cleaning up graffiti which would include taking photographs of the graffiti for investigation purposes. He said property owners are advised they have a certain number of days to cleanup the graffiti. He said if they are unable to do the cleanup, the City Operations Department will assist them. He said if the owner chooses not to do the cleanup, the City would remove the graffiti and charge the owner for that service. He said if the graffiti is on public utilities the Operations Department is responsible for doing the cleanup.

Coun. Bode reviewed in detail the City's policy and process for reporting graffiti and conducting the cleanup.

COUNCIL ITEMS:

Coun. Bode said the Council was hosting the next Picnic in the Park on August 24, 2006, at Camille Park at 6:00 p.m.

STAFF ITEMS:

Chief of Staff Linda Adlard said on July 24, 2006, the Council approved the opening of the bids for the construction component for the Central Plant. She said the amount authorized was $727,950 and Council asked that staff update the Council on the bid at this meeting. She said the bid was awarded to Triad Mechanical in the amount of $425,737. She said there was still capital money available to further extend the project when needed. She said Triad Mechanical was an Oregon business.

Mayor Drake said the Consent Agenda and Ordinances would be considered next, followed by the Action Item.

CONSENT AGENDA:

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

Minutes of the Regular Meetings of June 19 and July 10, 2006

06133 Liquor Licenses: Change of Ownership - Albertson's #559 and #582; New Outlet - Qdoba Mexican Grill

06134 Boards and Commissions – Jason Hitzert, Beaverton Arts Commission

Contract Review Board:

06135 Bid Award - Asphaltic Concrete Requirements Contract

06136 Waiver of Sealed Bidding - Purchase Nextel Cellular Phone Service from the State of Oregon Contract No. 2285

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

ORDINANCES:

Coun. Doyle MOVED, SECONDED by Coun. Bode, that the rules be suspended, and that the ordinance embodied in Agenda Bill 06137, 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. Arnold, Bode, Dalrymple, Doyle, and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

First Reading:

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

06137 ZMA 2006-0005 Butler Rezone; An Ordinance Amending Ordinance No. 2050, the Zoning Map, as to a Specific Parcel, from Urban Standard Density Residential (R-7) to Urban Standard Density Residential (R-5) (3600 SW 110th Avenue) (Ordinance No. 4400)

Second Readings:

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

06129 An Ordinance Amending Ordinance No. 4187, Figure III-1, the Comprehensive Plan Land Use Map and Ordinance No. 2050, the Zoning Map for Property Located at 8111 SW West Slope; CPA 2006-0002/ZMA 2006-0001 (Ordinance No. 4398)

06130 An Ordinance Amending Ordinance No. 4187, Figure III-1, the Comprehensive Plan Land Use Map and Ordinance No. 2050, the Zoning Map for Four Properties in Northeast Beaverton; CPA 2006-0003/ZMA 2006-0002 (Ordinance No. 4399)

Coun. Doyle MOVED, SECONDED by Coun. Stanton, that the ordinances embodied in

Agenda Bills 06129 and 06130, now pass. Roll call vote. Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

ACTION ITEM:

06124 APP 2006-0004: Appeal of Town Square Too - Wal-Mart Approval (DR 2005-0068) Continued from the July 11, 2006 meeting.

Mayor Drake said the Council would be taking rebuttal comments from the Wal-Mart Applicant and staff would answer any questions. He reminded the Councilors that if any questions they asked the applicant or staff generated new information then surrebuttal for the appellants would be required by law.

Rappleyea confirmed rebuttal testimony should deal with evidence that was already in the record.

Mayor Drake said after rebuttal testimony, Council questions would be taken and directed through City staff. He said after the questions there would be Council deliberation.

APPLICANT REBUTTAL:

Greg Hathaway, Davis Wright Tremaine LLP, Portland, attorney representing Wal-Mart, said this was the end of a long process and a long road to come before the Council. He said Wal-Mart had to meet some difficult tests; these were not normal tests and Wal-Mart was being held to a higher burden. He said the first test was the Peterkort test; they had to ensure that their development met the Peterkort's specifications and was compatible with the Peterkort's current and future development plans. He said Wal-Mart met that test and that included the Peterkorts' transportation planning issues. He said the next key test was the City, County and ODOT's transportation tests. He said all three agencies agreed with Wal-Mart's transportation analysis and they agreed that all of the impacts could be mitigated. He said the third test was to get the approval of the Board of Design Review (BDR), in light of considerable opposition. He said the BDR made its own independent decision that Wal-Mart met all the development criteria.

Hathaway said Wal-Mart was asking that the Council affirm the decision of the BDR. He said the appellants were asking that the Council reverse the BDR's decision and turn back the clock and reject years of planning that allow this use by right. He said BDR Chair Doukas said it well when she said this was not a popularity contest; it was a question of whether Wal-Mart has met all of the legal tests. He said Wal-Mart has met all legal tests and wants to be part of this business community. He said they were prepared to mitigate every impact that they create. He offered to answer Council questions.

There were no questions from Council.

Mayor Drake said that Hathaway had submitted a written rebuttal to the City about one week ago (in the record). He asked the City Attorney if there was anything in the verbal rebuttal just presented or in the written rebuttal submitted earlier that was new information.

Rappleyea said he had reviewed the written rebuttal submitted by Wal-Mart and did not find any new evidence; it referred to matters that were already in the existing record. He said there was no new evidence in the final rebuttal just presented by Hathaway.

Mayor Drake said that would also be his finding and he confirmed that that was Council's finding. He asked if there were any further questions or thoughts from Council. There were none.

Coun. Stanton asked if staff had any closing comments.

Staff had no closing comments.

Mayor Drake asked the Council for their decision.

Coun. Stanton MOVED, SECONDED by Coun. Bode that the Council grant Appeal APP 2006-0004 (Appeal of Town Square Too - Wal-Mart Approval DR 2005-0068) and deny the Wal-Mart application.

Coun. Bode said the process of building community often feels like tearing down the community to put it together. She said she would support the motion to grant the appeal. She said the County zoned this area transit oriented-retail commercial and the focus in building community is transit oriented. She said transit oriented was designated to encourage pedestrian traffic and transit use. She said when that is considered, this project has no direct access to SW Barnes Road, blank walls face SW Barnes Road and there are no buildings oriented towards SW Cedar Hills Boulevard. She said pedestrian safety when crossing SW Barnes Road would only be supported by a traffic island and that was not enough. She said she did not want to approve this project and then have someone killed trying to cross the road because that traffic island was not sufficient. She said it was an issue of safety and livability. She said she also had concerns regarding access and spacing, but she was most concerned with livability and this development was not designed for pedestrians. She said no decisions were made lightly. She said Wal-Mart woke the residents up in this area and pulled the community together.

Coun. Stanton said she lives in the far southeastern corner of the city and she initially became involved in her neighborhood association because there was a traffic issue in her neighborhood. She said she has resisted being a "nimby" (not in my back yard) and she has expanded her definition of neighborhood and community to include the entire area of city, county and state. She said the values and s tandards she holds for a livable community apply to everything and they do not stop at jurisdictional lines. She said there was a comment that she said City leaders have little discretion to reject Wal-Mart as long as the proposals meet zoning and design criteria. She said for the record, having little discretion does not mean having no discretion. She said she remembered saying that both sides were valid and Council's job was to determine which side was more valid. She said one of the definitions of valid from the dictionary was "Containing premises from which a conclusion may logically be derived." She said both the applicant and appellant came to different conclusions based on their interpretations of data and codes, and based on their own premises. She said it is the conclusion that the Council reaches, based on its interpretation of the City and County Codes that has to be valid, justifiable and defensible.

Coun. Stanton said to make her case she went to the Washington County Code. She read from County Code 375-1 "The intent of the transit-oriented districts is to direct and encourage development that is transit supportive and pedestrian oriented in areas within approximately one-half mile of light rail stations, within one-quarter mile of existing and planned primary bus routes. The purpose of the transit-oriented district is to limit development to that which has a sufficient density of employees, residents and users to be supportive of the type of transit provided to the area…and is designed to encourage people to walk, ride a bicycle or use transit for a significant percentage of their trips." She said that if it is transit oriented-retail commercial as designated by Washington County, it is incumbent that we keep it transit oriented and transit and pedestrian friendly. She read from County Code 431-1 "All Type 3 applicants for development in transit oriented districts shall demonstrate compliance with applicable principles and or standards in this section." She said she looked at County Code 431-4.1, Principles, and she found Principles A and B were not met. She said she looked at County Code 431-4.1 Standards, and found Standards C and D for blocks were not met.

Coun. Stanton said there was no question that responsible long-range planning was needed. She said more important was the need for responsible long-range development. She said with the amount of housing that will be going in on the north side of SW Barnes Road, as well as all the development coming to SW Cedar Hills Boulevard north of SW Barnes Road, any development that goes in must be transit oriented as defined by the County. She said SW Barnes Road must be safe and easily crossed if it is the intersection of four blocks of transit oriented development. She said SW Cedar Hills Boulevard and SW Barnes Road must support the housing that will be coming. She said it does not appear that the roads can support a Wal-Mart and the housing densities planned because while Wal-Mart is willing to put in additional lanes and other amenities it will keep the situation even; it will not be sufficient for the future development that is coming to this area.

Coun. Stanton said ODOT, the County and City staff have determined that Wal-Mart had met the required criteria by agreeing to the conditions of approval. She said the staff from these three agencies have determined that the improvements that the applicant is willing to undertake on these two roads would keep the roads and the intersection at the current level of service. She said she only saw a little thought given to what would happen to this area with the planned future development. She said what happens next is more important than what is currently happening. She said the consequences of a development of this size and impact at this intersection was more than she could be comfortable with. She said she is also concerned about the conflicting information Council received regarding overnight parking and the potential for increased levels of crime. She said there were three Council goals that were applicable to this application: To preserve and enhance the sense of community; To ensure a safe and healthy community; and To manage growth and respond to change consistent with maintaining a livable full service city. She said she was aware that this site was not in the middle of Beaverton; but it is now part of Beaverton and the Council goals apply. She said because of this, she would support her motion.

Coun. Doyle said he would support the motion. He said the traffic situation in that area was almost at failure level now. He said the applicant has agreed to do a great deal of mitigation to leave it at the same level of almost failure. He said looking at the different traffic engineers' reports, a small error in either direction would cause that intersection to fail. He said that was the "heart and soul" of this application. He said staff and the applicant bent over backwards in trying to craft a solution. He said this is not the first time the Council has not agreed with the BDR, ODOT or the County. He said this big box use in this location would not work.

Coun. Dalrymple said he would support the motion. He said while there may be examples where retail over parking may work for s tand-alone retail uses of this scale, he was not certain that the brand would trump the inconvenience of shoppers to ensure a sustainable future for the use. He said the use appears out of scale with a greater than 150,000 square foot big-box retail use placed on top of a sea of parking. He said the majority of shopping would take place on the second floor. He said this design did not create a pedestrian-friendly environment; and the addition of plazas did not change the auto-dependent use to a more pedestrian friendly environment. He said this proposed use would not generate a relatively high percentage of transit trips. He said the transit station location, and the vertical grades to and from this site from the transit station, make it impractical for shoppers to use transit. He said bus stops cannot be placed close to the site due to the complex design needed to meet the transportation requirements of this development. He said this development is an auto-dependent use and the auto trips it generates would be more regional in nature than local. He said permitting a use that draws regional auto traffic into this area is opposite of the intent of the transit oriented-retail commercial zone. He said adding regional trips to this area would exacerbate the transportation issues associated with this transportation corridor.

He said regional trips would add stress and congestion to the transportation system that supports this area. He said approving this development would add to the long-term transportation problems in this corridor rather than bring solutions; and it is known that more development is planned for this area. He said the size of this development creates a magnitude of transportation impacts that discourage people from walking, riding a bicycle or using transit for a significant percentage of their trips. He said he believed that development of this site might be best served by providing multiple retail service businesses, at a more pedestrian scale, that more closely align with the intent of a pedestrian-oriented development. He said these businesses would serve the surrounding transit station uses, the surrounding neighborhoods and align more closely with helping to resolve the impacts of this transportation corridor.

Coun. Arnold said she would support the motion. She said the Council is the judge in this issue and has to follow the criteria. She said she listened to the tapes of the BDR hearing and the motion to approve the application almost died for lack of a second. She said she sensed the BDR did not think this was a good use of the property but they did not know what to do with the application. She said at the BDR level, they do feel more of an obligation to follow the staff's interpretation of criteria because that is the role of the BDR. She said the Council has more discretion because they are the policy makers; they can chose to follow the policies in place but they have more room for interpretation of the Code. She said she agreed with comments that this development is not pedestrian oriented. She said the City Code has a 50,000 square foot plan for areas like the transit oriented zone. She said that was not part of the County Code. She said she thought the appellant made an interesting argument that when block size is limited, in essence floor size is limited. She said if this development followed the County's Type 2 criteria, there would have been three blocks not one massive structure with a great deal of parking.

She said this was like putting a line backer in a beautiful evening gown for a beauty pageant; it does not have the right shape regardless of how the dress looks. She said she thought that was what the BDR struggled with in making a decision. She said she did not like most of the pedestrian oriented spaces; they were dead spaces and she did not feel they met the requirements of County Code 431-7.3A1, which says "Community open spaces shall be designed to accommodate a variety of activities and users, ranging from active play by children to passive contemplation by adults, but shall generally be able to accommodate a relatively intensive level of use and shall be pedestrian friendly with amenities."

Mayor Drake thanked City planning and transportation staff, and the City Recorder’s staff for keeping the record straight, providing an outs tanding record and answering many questions. He thanked the Wal-Mart team for extending the maximum time allowed to get to this point. He said this was the best process he has ever seen in terms of the applicant and appellant trying to stay close to issues, and maintaining a professional and civil demeanor. He said he has lived in this area since 1962 and he has always thought of Cedar Mill, Cedar Hills and Raleigh Hills as part of Beaverton. He said he went to Sunset High School and ran many of the roads in those areas. He said there has been a lot of change over the years and it is how the future is managed that matters. He said through this process, the City has tried to look at the big picture. He said this area was annexed as part of a bigger process through an Urban Services Agreement with Washington County.

He said the City has had an interest in this area since December 2004 which preceded this application. He said the City's interest in these areas will continue. He said when he goes to other agencies to represent Beaverton, he is representing all of Washington County. He said this is not about Wal-Mart. He said this is the wrong store for this location. He said this issue is about impact. He said Wal-Mart is a regional facility and it is not transit oriented development. He said he would agree in terms of livability and the sheer mass of this intersection. He said he is looking at the big picture and not at a specific retailer.

Coun. Doyle asked if part of the motion was to direct staff to prepare findings in support of the motion.

Coun. Stanton said that was correct and the motion includes all relevant data presented in the record and in the testimony.

Coun. Arnold said she received a lot of calls on this issue and as soon as she heard "Wal-Mart" she had to delete the messages or end the calls. She said she could not call these people back. She said she wanted them to know she was not ignoring them; it is just part of the process that they cannot discuss this issue with the citizens. She said the Council tries to be responsive to citizens to the extent possible.

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

Rappleyea said he would work with the appellant's attorney to prepare findings and would bring them back for Council approval at the next meeting on Monday (August 14, 2006).

Mayor Drake explained that consideration of the findings on August 14 would not be a public hearing and no comments would be taken.

ADJOURNMENT

APPROVAL:

Approved this 11th day of September, 2006.

__________________________________
Rob Drake, Mayor