BEAVERTON CITY COUNCIL
REGULAR MEETING
JULY 17, 2006

POLICE DEPARTMENT HOLDING FACILITY INSPECTION:

At 6:05 p.m. Police Lieutenant Stevenson conducted the Annual Inspection of the Police Department Holding Facility. Present at the inspection were: Mayor Rob Drake, City Councilors Catherine Arnold, Betty Bode, Bruce Dalrymple, Dennis Doyle, Cathy Stanton and City Recorder Sue Nelson.

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, July 17, 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, Assistant City Attorney Bill Scheiderich, 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:

Mayor Drake said Veronica Morgan was present and wished to speak to Council about a photo radar ticket she received. He asked Chief Bishop to review the history on this matter for the Council.

Chief Bishop explained Morgan received a photo radar ticket. He said he reviewed the photograph and it confirmed she ran through a red light. He said on May 30, 2006, Morgan entered a plea of not guilty; that same day Judge Mercer ruled she was guilty. He said since then Morgan has met with many staff members who explained to her the court appeal process in detail. He explained Washington County Court has jurisdiction for these appeals; the City Council and staff have no jurisdiction on this matter. He said the City places a high priority on red light violations because running a red light causes more injury accidents than any other situation.

Mayor Drake asked if someone is convicted of a violation, the Judge has the authority to issue the conviction and neither the Mayor nor the Council can intervene in that process.

Bishop confirmed that was correct; the law is clear that the City cannot intervene.

Morgan said she was protesting because of the high cost of the appeal and the ticket.

Mayor Drake concluded there was nothing further the City could do.

Pavel Goberman, Beaverton, announced his 2008 candidacy for the U.S. Senate. He voiced his frustration with the political process in the city, county and nation. He noted his displeasure with the Republican and Democratic parties, with Coun. Stanton who he said is a member of the Washington County Democratic Committee, with the City, with the media and with national and foreign policy.

COUNCIL ITEMS:

Coun. Stanton said the following events were occurring this month: 1) Picnic in the Park at Hiteon Park on Wednesday, July 19th, at 6:00 p.m.; 2) An Open House on Commuter Rail on Friday, July 21st, at 2:30 p.m., at the Central Court Gazebo at Bridgeport Village; and the Old Town Beaverton Festival on Saturday, July 22nd, on Broadway Street from 10:00 a.m. to 4:00 p.m. She invited all interested people to attend these activities.

Coun. Bode gave an update on City services. She said in June 2006, 176 meetings were held at the Beaverton Community Center, for a total of 678 hours in which the community used the Center. She said also in June, the average daily use of the City's Web site was 2,500 visits, with over 9,000 pages accessed. She said the Solid Waste/ Recycling Program received 949 calls for information in FY 2003-04; in FY 2004-05 there were 1,022 calls; and in FY 2005-06 there were 2,275 calls. She said this showed extensive use of City services.

Coun. Stanton said she was watching a Metro Council public hearing on recycling and in Multnomah County there is a problem with people putting glass and plastic bags in their general recycling materials. She said glass should not be included with regular recycling as it breaks and contaminates the other material. She said a person from one of the recycling companies testified that 30% of their staff time was spent sorting out the plastic and glass. She reminded everyone that plastic bags should be returned to the store that provided them and glass is collected in a separate container. She encouraged Beaverton citizens to separate the two, to keep costs down.

STAFF ITEMS:

There were none.

CONSENT AGENDA:

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

06125 Liquor License: Change of Ownership - Thai Derm Original Thai Cooking

06126 Approval of Land Use Order Denying TA 2004-0012 (TC-MU Commercial Use Restriction Amendment)

06127 Approval of the Intergovernmental Agreement With Washington County Oregon, to Participate in the State Homeland Security Exercise Program Grant Awarded to Washington County for Planning, Conducting and Evaluating a Homeland Security Exercise and Authorize the Mayor to Sign the Agreement (Resolution No. 3866)

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

Coun. Doyle MOVED, SECONDED by Coun. Bode, that Council grant the request for a waiver of building fees for the Edwards Center Project located at 13870 SW Bonnie Brae Street, Beaverton, not to exceed the amount of $1,000, per the memorandum to the Mayor dated July 13, 2006.

Coun. Stanton explained to the public that the City was waiving the building fees for the remodeling of a facility that houses disabled citizens. She said she liked to waive the permit fees when there is a genuine benefit back to the community.

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

First reading of the ordinances was considered at this time.

ORDINANCES:

Coun. Doyle MOVED, SECONDED by Coun. Stanton, that the rules be suspended, and that the ordinances embodied in Agenda Bills 06129 and 06130, 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 ordinances for the first 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)

EXECUTIVE SESSION:

Coun. Bode MOVED, SECONDED by Coun. Bode, that Council move into executive session in accordance with ORS 192.660(2)(h) to discuss the legal rights and duties of the governing body with regard to litigation or litigation likely to be filed and request that per ORS 192.660(3) that items discussed executive session not be disclosed by media representatives or other. Couns. Arnold, Bode, Dalrymple, Doyle, and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

The executive session convened at 7:00 p.m.

The executive session adjourned at 8:05 p.m.

The regular meeting reconvened at 8:05 p.m.

PUBLIC HEARINGS:

06128 Biggi Ballot Measure 37 Claim for Compensation

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 there were any Councilors who wished to abstain from the hearing due to bias or conflict of interest.

No Councilors indicated they wished to abstain from the hearing.

Grillo asked if there were any objections to the jurisdiction or participation by any Councilor that they be raised at this time.

No one came forward to raise objections.

Grillo said the staff report presentation would be waived unless there were questions from the Council.

There were no questions from the Council.

Mayor Drake opened the public hearing.

APPLICANT/CLAIMANT:

Stark Ackerman, Black Helterline LLP, attorney for claimant Biggi Investments Partnerships, submitted a packet of information to Council regarding the Biggi Measure 37 Claim. He said the packet included a letter from him dated July 17, 2006, and a letter from Steve Biggi dated July 17, 2006, and supporting documentation.

Ackerman reviewed the highlights of his July 17 letter (in the record). He said the Biggi’s submitted a claim on August 2, 2005 (in the record), for their properties at 3661-3775 SW Hall Boulevard (Hall Street Grill property) and 3720 SW Cedar Hills Boulevard (Best Bet property). He said the materials he just submitted provide more details on the claim; however, the nature of the claim was the same as when it was originally submitted. He said they negotiated with the City and Clean Water Services to settle the claim. He said while progress was made concerning the City claim; they were not successful with Clean Water Services and negotiations had broken down. He said this claim was against additional restrictions that were placed on the property since the Biggi Partnership obtained ownership. He said this property was already developed. He said they were not as concerned with the Hall Street property as there were no current plans for redevelopment of that site.

Ackerman said there were current plans to redevelop the Best Bet property. He said that project was blocked by restrictions imposed by Clean Water Services (CWS) for a 25-foot vegetative corridor and other mitigation requirements on property that is already developed and has parking and asphalt. He said new City s tandards incorporated into the Code since the Biggi’s acquired that property would make this project more difficult to develop. He said that was the reason for the claim. He said the letter from the Biggis gives further details on the costs and impacts of these new s tandards and on the negotiation process (in the record). He said in regards to Measure 37, the Biggi Partnership is the current owner.

Ackerman said there were two categories of restrictions raised in the claim; the restrictions from the City's Development Code and restrictions from CWS that are incorporated into the City Code. He said the City's Development Code restriction that have been applied since March 11, 1988, involved the Regional Center-Transit Oriented Zone and other requirements dealing with design review and other processes. He said the staff report states that the claimant only requested relief from four s tandards. He said that was incorrect; the claim states it is for all restrictions imposed since the time the Biggis acquired the property and then examples of some of the restrictions were listed in the claim. He said the staff report only concentrated on the examples they gave, so it did not fully address all the restrictions for which they were making a claim.

Coun. Stanton asked Ackerman if they had given the City staff a full list of all the restrictions concerning the claim.

Ackerman replied they did not list all the Code sections in the claim. He said he thought it was clearly stated that it was against all restrictions imposed since March 11, 1988. He said additional information was provided on specific Code sections and requirements in the packet he submitted at this meeting. He said that the staff report stated that some of the Code sections were not subject to Measure 37 claims, as there were procedures for applying for an exemption from those requirements. He said they disagreed with that. He said the reality was that if the requirements could be waived by going through another process, then they should be waived now; they should not have to go through a two-step process when the outcome would be the same. He said Measure 37 does not require that they go through that two-step process.

Ackerman said on page five of his July 17, 2006 letter, he discussed how the standards restrict the use of the property and reduce its value. He said the restrictions reduce the amount of land available, limit the ability to use the property for higher-value uses, and increase the cost of development; all of these factors reduce the fair market value of the property. He said CWS's restrictions apply to the property through the City Development Code. He said the City Code requires that CWS's standards be met prior to the City saying the application is complete. He said that was why these restrictions are applied by the City. He said these restrictions are incorporated in the floodplain restrictions. He said the City agreed to adopt and enforce CWS standards through an intergovernmental agreement with CWS. He said that was why these are City regulations and subject to a claim for compensation for a reduction in the value of the property.

Ackerman said the City and CWS argued that there might be an exemption for these restrictions due to the many exemptions in Measure 37; in particular the public nuisance restriction. He said they believe that the public nuisance restriction applied, but it should be narrowly construed by the terms of Measure 37 and it only applies to activities commonly and historically recognized as public nuisances. He said developing property adjacent to a stream was not an activity recognized as a public nuisance. He said the exemption in Measure 37 for restrictions for public health and safety purposes does not apply to the CWS restrictions. He said the burden was on the City to show that these exemptions apply, per Code 2.07.035. He said the City had not met that burden. He said all they want is the right to develop to the extent that it has already been developed. He said there was no need for additional regulations or for this exemption.

Ackerman said there was an exemption that relates to Federal law requirements. He said they believe this does not apply to this case. He said CWS refers to the Clean Water Act as the basis for that requirement, but there is nothing in the Clean Water Act or in the NPDES (National Pollutant Discharge Elimination System) Stormwater Discharge Permit, that requires a 25-foot vegetative corridor or buffer. He said the corridor requirement was a CWS creation. He said the City has an obligation to maintain Beaverton Creek due to a 1992 Consent Decree. He said the Biggis have never been asked to grant an easement to the City that would allow the City to maintain the Creek. He said they are obligated to give that easement to the City under the Consent Decree and would have granted it, if it had been requested. He said they would hold the City accountable for any consequences they encounter due to lack of maintenance of the Creek. He said the City promised in a 1982 Local Improvement District (LID) process, that there would be no development restrictions in the floodplain in exchange for the property owners in the Murray Culvert LID to contribute to the LID. He said the City has stated that the Code provides that protection. He said they do not believe that protection has been provided and they do not believe that the agreement with the land owners has been met. He said the City's adoption of an agreement to enforce CWS standards was in contravention of that prior agreement.

Ackerman concluded by stating this was a legitimate Measure 37 Claim. He said while they may not have strictly followed all of the City's procedures, Measure 37 did not require them to do so and states that failure to complete City procedures was not a bar to filing a claim in Circuit Court. He said they believed they were entitled to compensation and, pursuant Measure 37, if the land use regulations continue to apply more than 180 days after their filing of a claim (which has been extended to July 24, 2006), the owner will have a cause of action to file a claim in Circuit Court.

Coun. Arnold said she would not be able to read all the information Ackerman just distributed to the Council. She asked if he had submitted any new information in that packet.

Ackerman said he did not think there was a lot of new information. He said the basic points were made in the August 2, 2005 letter. He said this packet provided additional details on the claim for Council’s information. He said the Council had until next Monday to review the material. He said they had a filing deadline that they were trying to meet.

Coun. Arnold asked how maintenance of the creek related to value of the property.

Steve Biggi, Biggi Investment Company, Beaverton, said in its Service Provider Letter, CWS said that all of the creek and channel areas that were previously mitigated by the Biggis and Tri-Met, were degraded and had to be restored. He said that would cost about $40,000 to $50,000.

Coun. Arnold asked if he thought the City needed to do the maintenance.

Biggi said the City should have been doing the maintenance since 1999. He said all the mitigation work done by the Biggi’s and TriMet was now gone due to the beavers and nutria. He said it was the City's responsibility to maintain that mitigation work and it failed to do so. He said CWS was now saying they have to restore it and that was part of the claim. He added the total CWS claim was around $700,000. He said the 25-foot buffer is currently concrete and asphalt.

Public Works Director Gary Brentano said the City has done a great deal of work around the areas that border this part of Beaverton Creek. He said staff toured that section of the Creek with a CWS naturalist and identified a variety of the plants that were doing well. He said there are grasses that need to be removed and the trees have been removed by the beaver. He said there is some restoration work to be done but it is not an extensive amount. He said there was a great deal of value there now from the plants. He said this area was not prioritized by CWS for immediate restoration.

Biggi said in the material submitted to Council there was a letter from CWS stating the condition of the channel/creek.

Coun. Stanton asked Biggi if CWS said the work needed to be done or that the Biggi Partnership had to do the work.

Biggi replied said that in the CWS Service Provider Letter it said that the land had to be restored. He said CWS said that the Biggis had to do the work as they were developing the land. He said he did not think CWS was aware of the Consent Decree.

Coun. Stanton said she read about the Consent Decree in the staff report, but she did not remember reading about the addendum to the Decree. She said the Decree was on page nine and it referred to June, 1994. She asked if there was a modification after that date and if this had any bearing on this issue.

Brentano confirmed there was a modification; as the Max lines were moved closer to that area there was a modification to that agreement in which TriMet took responsibility for the care of the mitigation in and around the site for a period of three years.

Coun. Stanton asked if any of the requirements that the City maintain the channel changed with that modification.

Assistant City Attorney Bill Scheiderich said the modification added obligations to the City that had been the responsibility of the property owner. He said the modification was in 1994 and the original Decree was prior to 1986. He said the modification replaced the original Decree.

Coun. Stanton asked if the 1994 modification over-wrote the original.

Scheiderich said that was correct; the 1994 modification was a substitute for the original.

Coun. Doyle said it appeared the real dilemma was the CWS requirements; that was the basis for part of the expense of the claim. He asked if that was correct.

Ackerman said the CWS requirements were part of the claim but not to the exclusion of the restrictions imposed by the City; the claim was $990,000 for the City and $770,000 for CWS.

Coun. Doyle said if the City chose to waive its requirements, then that would no longer be part of the claim, though the CWS restrictions would still apply.

Ackerman said it was not clear to him that the staff was recommending a waiver of the City requirements to the extent that the Biggi's requested. He said if the City waived its requirements, it would still leave the CWS restrictions and that was important. He said they believed the City had some rights to waive the CWS restrictions.

Mayor Drake asked if they had conducted a certified appraisal of the value of the claim.

Ackerman responded they did not. He said they looked at nearby land that was being sold by the County and used that as a basis for the amount of the claim. He said the reality was that the value was probably greater than that. He said they believed it was unlikely that the City would pay compensation and they were making a prima facie case with regard to what the compensation and reduction of value might be.

Mayor Drake said, as an example, he did not see the nexus between the sale price for County property and the value of the sidewalk. He said the staff recommendation was to waive that for which the City feels it is accountable, but he did not see the dollar differential. He said many of the claims coming forward do not have appraisals.

Biggi said he was told by staff that there would be no compensation payment; that the only choice the City had was a waiver. He said a title report would cost $2,000, an appraisal for three parcels would cost $12,000, and attorney's fees would be considerable. He said all of that could cost $20,000 to $40,000; and it seemed a waste of money to do an appraisal when there would be no payment. He said to calculate the sidewalk cost they multiplied the square footage by the cost of concrete.

Mayor Drake said he has known the Biggi family over 25 years and has advocated for them in many situations. He said the Biggis were good business people. He said Measure 37 is the law of the land and while staff often speaks for the Council, this is a policy decision that Council has to make. He said he would guess that the Council would not compensate for this, since this was similar to what they could have developed in 1986. He said the issue for him was that he has not seen proof of a lot of appraisals and when dealing with public monies he wanted to understand how they arrived at the value of the claim. He added that an attractive creek would benefit the Biggis and any potential client.

Coun. Stanton noted Exhibit C of the August 2, 2005, claim letter (page 29 of staff report) listed the Restrictions Reducing the Fair Market Value of the Property. She said City Restrictions included floodway and floodplain regulations above those required by Federal law. She asked if these regulations were delineated in the report or in the packet just distributed by the claimant.

Ackerman said he had not specified the regulations in any of the material. He said he identified the Code sections that apply to floodplain regulations in the new material. He said the Council did not need to know the restrictions; that Council could waive the Code requirements to the extent that they meet the standard that they are above those required by Federal law.

Coun. Stanton asked how she would know that the restrictions were above what Federal law required. She said they could not waive the restrictions just on his word.

Ackerman said he thought that could be done in the future.

Coun. Stanton said if the Council approved the claim, the matter would be finished. She said years ago the City had to pay the Biggi’s because the City erroneously waived some regulations. She said the City could not waive regulations based on the claimant's word, without staff or the Council looking at the matter.

Ackerman said that the Council could broadly waive the City's requirements by describing the waiver as being for "certain things that meet this criteria." He said the waiver did not have to be for specific sections.

Coun. Stanton said she would never sign a blank permission slip. She said to her that was very important. She asked if he was suggesting that the Council could waive everything up to Federal regulations and let the details be figured out later.

Ackerman said that was what he was suggesting and staff also recommended a generic waiver.

Coun. Stanton said she could not support that.

Ackerman said he thought there were mutual obligations in this case in terms of defining what does and does not apply, and what could be waived. He said this could have been worked out but it was not.

Coun. Bode said she agreed with Coun. Stanton. She said the Council has an obligation as policy makers to be thorough and understand both sides of the issues and the proof. She said the inability of the claimant to exactly present the City's obligation and what waivers are needed, and to ask that the Council make a general waiver, was not sufficient for the Council to make a policy statement. She said if that was what the claimant wanted the Council to do, then they needed to supply additional information so the Council could thoughtfully consider their request. She said handling this claim through a general approach was not good policy for either side. She asked if the claimant could grant the City more time as a matter of good faith business.

Ackerman said they could have requested relief from all of the floodplain regulations; that would have thrown the burden onto the City to determine which regulations were or were not eligible for a claim. He said they chose to characterize this in a way that would allow moving forward without that level of effort. He said that might have been an incorrect choice. He said Measure 37 was unknown territory for everyone. He said since the Council has not considered many Measure 37 hearings, it was difficult to know what the best path was. He said they were trying to use a reasonable path.

Coun. Bode said she understood the obligation of both parties but submitting additional material at the hearing for thoughtful review was not sufficient. She said Council needs time to review the new material. She asked what the rush was on this item and why they did not want to give Council the time needed to review the material.

Ackerman said that was not his preference and he did not control the circumstances. He said they filed claims with the City, Clean Water Services and Washington County regarding the CWS restrictions. He said that was done because they believe there is a Measure 37 claim in there somewhere and all three jurisdictions say it is somebody else. He said they believe that in order to get this resolved they are forced to go to Circuit Court. He said they want to bring all three of the agencies into Circuit Court in the same case so that a judge can have all the relevant parties and facts in front of them to make a legitimate decision as to who is responsible. He said they filed the three claims at the same time and tried to keep everyone on the same timetable. He said the other jurisdictions, particularly Washington County, would not work with them to stay on the same timeframe and unilaterally decided to enter its decision now. He said that decision created the obligation for the claimant to appeal that decision to Circuit Court within 60 days of the County's decision. He said the need to meet that 60-day deadline limits their ability to work with the City and CWS.

Coun. Bode said that was the claimant's strategy for getting the matter to court, however, she was working on the public process. She said she needs to look at making policy and what makes sense as they go through this claim. She said she would not make decisions on a race track.

Ackerman said they were willing to give the City another week, but they were constrained on time. He said they made extra effort in trying to work this out with the City and CWS and they extended the time period an additional five months for those negotiations. He said this was not about getting the City to court; it was about trying to resolve the issues to everyone's benefit. He said it benefited everyone to have all three jurisdictions in court at the same time, if they have to go to court, as it would be a more efficient use of the court system and the agencies' time.

Biggi said they had a sixty-day deadline. He asked what the Council needed if one week was not enough.

Mayor Drake said this was not the appropriate place to discuss the timeframe. He said a week was not sufficient time to review all the new material and next week's meeting was already full. He said this should be discussed with staff.

Coun. Dalrymple said he did not get a good sense of what the claimant was presenting, especially since they said they wanted to get all three agencies into court at the time. He said if they really wanted to develop the property, why not get a development plan together and go through the process so the City can look at the specific requirements and waive what can be waived.

Biggi said he invested a lot of time and money on a development plan and found he could not meet the parking requirements due to CWS restrictions. He said they met the City's minimum parking requirements but that was not enough parking for this project. He said he has owned other property where there is not enough parking and it is a nightmare. He said he would not go through that again; he wants the waivers now.

Coun. Doyle asked if the Council had to take action by next Monday or there would be consequences.

City Attorney Alan Rappleyea said if they did not meet the180-day deadline, they would potentially lose the opportunity to waive regulations. He said if they lost the ability to waive, they would only be left with compensation. He said it was not advisable to risk having to pay the compensation when the waiver could be handled today.

Coun. Stanton asked if the City could waive a CWS Code requirement based on the City's intergovernmental agreement with CWS.

Rappleyea said there was considerable debate over that question and he would hesitate to give a legal opinion about the City's ability to do that in open session.

Coun. Stanton asked if the City could write to the Federal Attorney General for an opinion on this question.

Rappleyea said that would not be appropriate. He said CWS has given their opinion and that is a question that has to be answered by the court.

Mayor Drake said the City adopted the CWS regulations and CWS is compelled to defend its ordinance.

Ackerman said he and the City Attorney discussed continuing this hearing to give Council additional time to look at the materials. He said Rappleyea indicated August 7 and 14 as possible dates. He said though that would squeeze their timeline, they would be willing to continue this matter to August 7, 2006.

Mayor Drake said August 7 was the meeting where Council would make its decision on the Wal-Mart application.

Coun. Bode said Council could devote its full attention to this matter at the August 14th meeting.

Ackerman said August 14th was their deadline date to act on Washington County's decision.

RECESS:

Mayor Drake called for a brief recess at 9:25 p.m.

RECONVENED:

Mayor Drake reconvened the meeting at 9:35 p.m.

PUBLIC TESTIMONY:

Forrest Soth, Beaverton, former City Councilor, reviewed the history of this area. He said the Drainage Improvement Task Force was a group formed by the property owners and various governmental agencies to look at the feasibility of lowering the floodplain in the Beaverton Creek area to allow additional development to occur in this area. He said consultants determined it was feasible to lower the floodplain and a local improvement district (LID) was formed from Canyon Road to 170th Avenue, with two new culverts being installed under Murray Road and under the General Motors spur. He said Tek was not a part of the LID; instead Tek reconfigured its portion of the Creek in accordance with the consultant's recommendation. He said after their study they resubmitted their floodplain delineations to the U. S. Army Corps of Engineers and the Corps approved them several years later. He said as part of the process they lowered the floodplain; the subject Biggi properties were exempted from the cut-and-fill requirements of floodplain regulations and they were allowed to develop up to the floodway on certain parts of that property. He said that was part of the intent of the LID. He said the Biggi’s proceeded with their development based on the study. He said the floodplain delineations were confirmed a few years later by another engineering study. He said that was the history of this property.

Coun. Arnold asked if the Biggi’s were able to utilize property that they could not have used because of the LID.

Soth replied they were. He said it worked well and when Washington County decided to make Murray Boulevard four lanes at that location, they replaced and enlarged the culverts that were originally installed through the LID.

Coun. Dalrymple asked if there were any additional agreements that would have superseded the LID agreement with the Biggis.

Coun. Soth said he was only aware of the Consent Decree that may have impacted the LID agreement. He noted there were two letters in the information before Council (dated September 16, 1985 and December 5, 1985) that confirm the history he presented.

Mayor Drake asked if anyone wished to testify in support or opposition to the claim.

No one came forward to testify.

Mayor Drake asked if the testimony heard could be rebutted.

Rappleyea said the testimony was neutral so it could not be rebutted.

Mayor Drake closed the public hearing.

Coun. Dalrymple said he did not see a need to defer this to a future date.

Coun. Dalrymple MOVED, SECONDED by Coun. Stanton, that Council accept staff recommendation, Item H. Recommendation and Item I. Exhibits, in the staff report of July 11, 2006 and that the City Attorney revise the final decision for clarity, send a draft to Council for final comment and final adoption by the Mayor.

Coun. Stanton asked if the motion included the denial of the claim for payment, waiver of the development regulations for the affected properties as delineated in the staff report and denial of the claim for other regulations including those of Clean Water Services.

Coun. Dalrymple confirmed that was part of his motion.

Coun. Stanton said to meet the Biggi's timeframe, she was comfortable making this decision. She said in skimming the material the claimant submitted at the hearing, she did not see anything that lead her to believe that staff has not been accurate and clear on each of the points.

Coun. Bode said she would support the motion. She said for the future she would support any attempt that differing parties made to continue discussions, so that policies are not made against a deadline for other multiple government actions. She said hopefully next time they would have more time for thoughtful consideration of evidence presented.

Coun. Doyle said he would support the motion. He said the City restrictions have been waived back to the date of the Partnership obtaining ownership and that should alleviate much of the problems. He said the remaining issues deal with Clean Water Services and that would have to be answered in court.

Coun. Arnold said she would support the motion. She said floodplain regulations were in the Code for insurance coverage to protect property owners. She said regarding Clean Water Services, property owners could make a Measure 37 Claim but the City has to live with other agencies' regulations.

Mayor Drake explained for the public that this motion was to waive regulations adopted after 1988 but those in place in 1988 were still effective and would lead the development of this property. He said this would protect the public's interest and the Biggis have always produced attractive developments.

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

EXECUTIVE SESSION:

Coun. Bode MOVED, SECONDED by Coun. Doyle, that Council move into executive session in accordance with ORS 192.660(2)(h) to discuss the legal rights and duties of the governing body with regard to litigation or litigation likely to be filed and that pursuant to ORS 192.660(3), it is Council's wish that the items discussed in executive session not be disclosed by media representatives or others. Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

The executive session convened at 9:50 p.m.

The executive session adjourned at 11:05 p.m.

The regular meeting reconvened at 11:05 p.m.

OTHER BUSINESS: LEOPOLD STEVENS

Coun. Stanton MOVED, SECONDED by Coun. Bode that Council direct staff to initiate a petition to the Oregon Supreme Court regarding the Wells Case.

Coun. Doyle said he would support the motion to keep options open given the two court cases being considered. He said the Council can always proceed in the way needed for the best interests of the City.

Question called on the motion. Couns. Bode, Doyle and Stanton voting AYE; Coun. Dalrymple voting NAY; Coun. Arnold abstaining, the MOTION CARRIED. (3:1:1)

Rappleyea asked for direction regarding sending a letter to Leopold Stevens.

Coun. Stanton MOVED, SECONDED by Coun. Dalrymple, that the Council direct staff to send a letter to Leopold Stevens and advise them that the City would refrain from taking any action until the Court of Appeals rules on the matter. Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

ADJOURNMENT

There being no further business to come before the Council at this time, the meeting was adjourned at 11:10 p.m.

APPROVAL:

Approved this 11th day of September, 2006.

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Rob Drake, Mayor