OCTOBER 16, 2006


The Regular Meeting of the Beaverton City Council was called to order by Mayor Rob Drake in the Forrest C. Soth Council Chamber, 4755 SW Griffith Drive, Beaverton, Oregon, on Monday, October 16, 2006, at 6:40 p.m.


Present were Mayor Drake, Couns. Catherine Arnold, Betty Bode, Bruce S. Dalrymple, Dennis Doyle and Cathy Stanton. Also present were City Attorney Alan Rappleyea, 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 Captain Ed Kirsch and City Recorder Sue Nelson.

Mayor Drake acknowledged that Cub Scout Pack 769, Den 11, who attend Jacob Wismer Elementary School, were in the audience with Mr. Robert Armstrong, the Webelos Den Leader.


06184 Presentation on Beaverton School District Measure 34-139 General Obligation Bonds to Construct and Upgrade Schools

Priscilla Turner, Beaverton School District Board Chair, said the District's Bond Measure on the November 7, 2006 ballot would be for $195 million, which was the same amount that the District requested in May 2006. She said the Bond Measure would cost taxpayers $0.51/$1,000 assessed value (AV). She said these funds would be used for two new elementary schools, to acquire land for a future high school, to add 139 classrooms and to provide funding for two options high schools to relieve overcrowding in all the high schools. She said last year the District had 700 new students and as of September 30, 2006, they had an additional 915 new students. She said all the schools were full and many did not have room to accommodate more portable classrooms. She said the District's needs were great and urgent.

Turner said four years ago the District's Long-Range Facilities Planning Committee (which was made up of business and community members, teachers and District staff) began studying this issue. She said the Committee found $320 million was needed to meet the District's needs. She said the District Board pared that figure down to $195 in order to keep the cost to the taxpayer under $2/$1,000 AV.

Turner said 69% of the bond would go to new construction, 6% to land acquisition and 17% to facility improvement. She referred to an informational piece, District 88 School Talk, that was mailed to Beaverton residents and provided full information on the Bond Measure. She said this measure was well thought out and sorely needed by the children in the District.

Mayor Drake said he had drafted a Resolution supporting the Bond Measure for Council's consideration. He explained that in the May 2006 election the Bond did pass; however, due to the double-majority voting requirement, it was not approved because voter turnout was not sufficient.

Turner said in May 2006, 61% of the voters voted in favor of the Bond Measure. She said there was 42% voter turnout in the Primary Election but 50% was required to pass the Bond Measure. She said the 8% who did not vote ruled that decision. She said in the General Election the 50% voter turnout requirement does not apply and it was hoped that the community would realize that the need is urgent.

Mayor Drake said that between 28-30% of the homes in Beaverton have a student in school, but the other 70% also need to share in the responsibility of funding the schools.

Turner said she believed it was around 27% of the homes had students and that was a national trend. She stressed strong schools were needed for a healthy community.

Coun. Stanton said she remembered when her oldest child had attended a classroom in a closet. She said it was to everyone's economic benefit to support the schools. She said her Dad had always volunteered in their school activities and always supported school bonds, because he said he needed an educated public working in the community. She noted an educated work force is needed to contribute to the security of those who will be retiring.

Turner said the drop out rates were down at every high school and student scores were high. She asked for everyone's support.

Coun. Doyle said he has always found Beaverton an excellent place to live and the District has worked hard to maintain its reputation for excellence. He said that was why there were so many students coming into this District. He said he believed the Bond Measure would pass.

Turner said Beaverton was the fastest growing school district in Oregon.

Coun. Arnold asked what the average attendance was at an elementary school.

Turner said they vary quite a bit; McKay is 360; Finley, which has experienced the most growth, is over 900.

Coun. Arnold noted that the growth that occurred in the District last year equaled the number of students in the largest elementary school in the District.

Turner agreed and said that the Bond Measure would relieve the crowding at the schools. She said they try to hold the attendance at the largest elementary school to between 600 and 700. She said because of the economics of land costs, some large schools are necessary. She said of the two new schools, one will be K-5 and the other a K-8 out by Portland Community College. She said the K-8 model schools have been very successful.

Coun. Arnold MOVED, SECONDED by Coun. Stanton that the Council approve the Resolution Supporting the Beaverton School District's $195 Million Capital Bond Measure on the November 7, 2006 ballot. Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

06185 Presentation on Tualatin Valley Fire and Rescue Measure 34-133 General Obligation Bond Authorization

Tualatin Valley Fire and Rescue (TVF&R) Chief Jeff Johnson said TVF&R serves eight cities, including Beaverton, and regional areas in three counties. He said Measure 34-133 on the November 7, 2006, ballot is a $77 million Bond request. He said the proceeds from the Bond Measure would be used as follows: 25% to replace fire apparatus; 25% to rebuild five fire stations, including Station 68 on Kaiser Road and Station 53 on Progress Road near Washington Square; 10% to build two new fire stations, one in the Bethany area and one in west Tigard. He said 13% of the funds would be used to correct safety and operational issues (seismic upgrades and building updates) in eight fire stations. He said 15% of the funds would be used to close the offices in West Linn, Tualatin and Beaverton; these offices will be consolidated into a new office in north Wilsonville. He said the office in Aloha would remain open. He said 12% would be used to acquire land for future fire stations.

Mayor Drake complimented the Chief and TVF&R. He said the City annexed to TVF&R ten years ago and he has never regretted that decision. He said TVF&R has always included the City as a key member of its team and has always been very responsive to the City and its citizens. He thanked them for doing an outstanding job on behalf of the 85,000 citizens in Beaverton.

Johnson said TVF&R understands the taxpayers are the customers and makes sure that it provides the highest level of service that it can to the customers. He said they know they have to bring all the efficiencies a regional fire station can provide to the cities. He said those were two strong cultural imperatives in TVF&R.

Coun. Doyle said the annexation into TVF&R has continued to save citizens money each year. He noted the City of Portland was addressing its seismic needs and they raised a good point; if there is an earthquake and the fire stations collapsed, who would help the citizens. He said the cost was minimal and the improvements were needed; he hoped the voters would approve the measure.

Johnson said they understood there was a lot of competition on the November ballot among money measures. He said it was not their position to decide what citizens should vote for; but rather to make the business case of what is best for TVF&R, explain that to the citizens and let the voters make their choice. He said the challenge in running fire departments today was to balance the economy that people expect when they do not need your service with the perfection they expect when they do. He said he hoped they were hitting that target.

Coun. Bode said he had her support as a citizen. She said infrastructure was critical to a community and this was not an option. She said she lived close to one of the fire stations and she had heard the siren going off more often than in the past. She noted the Progress Road Fire Station was the one that was closest to Washington Square and she asked if that was going to be rebuilt or remodeled.

Johnson said the plans are to totally rebuild the structure. He said that facility cannot house the type of apparatus and personnel needed to serve that region. He said when that station was built it was to serve a population that was about 20% of what it is today. He said a completely different configuration is needed for that station and they recently acquired the land needed for that facility from the City of Portland (the property had been leased).

Coun. Bode asked if that station served the largest structures in TVF&R's service district, such as the Embassy Suites.

Johnson said that was correct; that station and Station 51 in downtown Tigard served the largest buildings.

Coun. Stanton explained how TVF&R had helped her neighbors when they had a fire and had helped her personally when she had a brain aneurism eight years ago. She thanked them for their excellent service and for the opportunity to support TVF&R. She added there were four important money issues on the ballot in Washington County; serial levies for public safety and library services, and two capital bonds for TVF&R and Beaverton School District. She said all four were critical. She referred to Station 53 on Progress Road and asked if Stations 65 would take up the slack.

Johnson said while the Station 53 is being rebuilt, they have a double-wide mobile home that they will work from. He added that every fire unit had a paramedic and they respond to all medical assistance and fire calls. He said their performance expectation is to make it to 90% of their calls in six minutes or less.

Coun. Doyle asked what percent of the calls received are for rescue. He said he thought that was a very busy part of their job.

Johnson said about 80% of their calls are Code 3 medical; the rest could be classified as fire, extrication and assistance categories. He said paramedical is the predominant part of their industry and it is critical.

Coun. Dalrymple said there were a number of women that were part of the fire district. He asked if part of the remodeling would be to provide facilities for women firefighters and paramedics.

Johnson said that was correct. He said many of the facilities were built in an era when women were not part of the firefighting work force. He said TVF&R was very proud to have women firefighters and paramedics. He said currently the men and women share restrooms and locker facilities. He said those needs would be addressed as the facilities are updated.

Coun. Arnold said she attended TVF&R's Citizen's Academy and she learned a great deal. She said she had not realized that they responded to automobile accidents and how critical their services were during an accident. She said she also never realized how important six minutes were in an emergency situation; it can be the difference between life and death or the total destruction of a property. She said she was also impressed with the high quality of employees and their personable and caring attitudes. She thanked them for all their efforts.

Johnson said the question he gets most frequently is why they take the big fire truck everywhere they go. He said the fire engine is the Swiss army knife of the fire department; it has all the tools for the full spectrum of calls for service. He said they need to be ready to handle whatever comes up.

Mayor Drake thanked him for the presentation. He said he and the Council strongly support TVF&R's Bond Measure and they hope the voters will pass it.

Johnson thanked the Mayor and Council for their support.


Barbara Wilson, Beaverton, said she spoke to Council on August 14, 2006, about global warming and Coun. Bode asked her to check back with them. She said Mayor Drake told her he had given the Mayors Climate Protection Agreement to the City Attorney to review by the end of October. She said she would come back to Council in November to see what comments the City Attorney may have had. She said this agreement is non-binding; it is an acknowledgement to the community that global warming exists and they are willing to do something about it. She asked the Council to sign the agreement and form a citizen's ad hoc committee for the purpose of public outreach and education. She asked that the Council take an official position on the preservation of large trees for that is critical for clean air. She said the City could do wonderful things through public outreach and she noted the City of Seattle was doing a great deal in this area. She spoke about the evidence that supports global warming. She urged the Council to consider this issue.


Coun. Stanton saidtomorrow night, October 17, there would be a Voters’ Forum in the Council Chambers at City Hall. She also noted on Wednesday, October 18, at 6:30 p.m. in City Hall, staff would present the Tualatin Basin Goal 5 Program Implementation Plan to the Planning Commission. She said the consequences of the Goal 5 Implementation Plan would affect stream corridors and wetlands, and the City would follow the Goal 5 Program. She said also on the evening of October 18, Governor Kulongoski and Howard Dean would be speaking in downtown Portland at Montgomery Park.


There were none.


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

Minutes of the Regular Meetings of September 18 and October 2, 2006.

06186 Liquor License: New Outlet - Bias Salon & Spa; 88 Asia Market

06187 A Resolution Establishing a Fee for Payday Lender Permits (Resolution No. 3876)

06188 Traffic Commission Issue No.:
TC 596 - Stop Control on SW Tierra del Mar Drive at Palmer Way;
TC 597 - Left Turn Prohibition on SW Canyon Lane at SW Canyon Road;
TC 598 - Speed Limit on SW Valeria View Drive

06189 Declaration of Surplus Property at Southwest Corner of SW 153rd Avenue and SW Jenkins Road

06190 Authorize Acceptance of FY06 Law Enforcement Terrorism Prevention Program Grant Awarded to the City of Beaverton and Approve the Specific Purpose Grant Budget Adjustment Resolution (Resolution No. 3877)

06191 Authorize Acceptance of FY06 State Homeland Security Program Grant Awarded to the City of Beaverton and Approve the Specific Purpose Grant Budget Adjustment Resolution (Resolution No. 3878)

06192 Authorize Acceptance of FY06 Citizen Corps Program Grant Awarded to the City of Beaverton and Approve the Specific Purpose Grant Budget Adjustment Resolution (Resolution No. 3879)

Coun. Arnold said the left turn prohibition on SW Canyon Road (Agenda Bill 06188) was brought forward by the Neighborhood Association Committee (NAC) as a concern. She urged people to work with their NACs to get things done in their neighborhoods.

Coun. Stanton said she had some minor changes to the minutes which she gave to the City Recorder.

Question called on the motion. Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0) Coun. Dalrymple abstained from voting on the September 18, 2006, Minutes and Coun. Bode abstained from voting on the October 2, 2006, Minutes for they were not in attendance at those meetings.


Mayor Drake called for a brief recess at 7:35 p.m.


Mayor Drake reconvened the meeting at 7:50 p.m.


06193 Weil Ballot Measure 37 Claim for Compensation

Community Development Director Joe Grillo read a prepared statement defining the process to be followed for the hearing, including various required disclosure statements (in the record).

Grillo asked if there was any bias or conflict of interest by any members of the Council, that they state so now.

There were none.

Grillo asked if there were any objections to jurisdiction or participation by any Council member at this time.

Mayor Drake asked if there was anyone in the audience who wished to question the City's jurisdiction, or the right of any Councilor or the Mayor to consider this claim.

There were none.

Mayor Drake opened the public hearing.

Development Services Manager Steven Sparks reviewed the staff report for the Weil Measure 37 Compensation Claim. He said Weil LLC has filed a $12 million claim. He said Weil Enterprises submitted a title report showing ownership of these two parcels in 1967 and 1969. He said in the staff report it is indicated that because the ownership changed to a Limited Liability Corporation (LLC), that a new ownership started as of 1997. He said Council received a supplemental staff memorandum dated October 13, in response to a letter from David Peterson; in the letter Peterson indicated that the 1997 date in the staff report is incorrect and Weil Enterprises took possession of the property in 1993. He said the staff report was supplemented by the staff memorandum and the recommendation has changed from the 1997 date to the 1993 date.

 City Attorney Alan Rappleyea said one of the main issues with this claim is the date of ownership. He said the initial claim states Weil acquired the property in 1967 and 1969. He said there were two transfers, one to a general partnership and later to a LLC. He said Measure 37 has a compensation component and a waiver component. He said the compensation is a non-issue as the cities do not have the funds to pay for the claims. He said the issue is waiving land use regulations. He said Measure 37 says that the waiver only applies since the owner acquired the property. He said this property was transferred to a general partnership in 1993 and staff was recommending using that date. He said based on a recent circuit court case in Deschutes County, they were fairly confident this could go back to when the present owner acquired the property, though it may be decided differently in appellate court.

Mayor Drake said when considering either date 1993, 1996 or 1997, claims are always made that a government is keeping someone from maximizing their investment. He said he thought there had been some discussion about there being fewer restrictions in 1996 or 1997; why would someone want to go back to 1993 and not have the most optimum opportunity to develop their land.

Rappleyea said he discussed this issue with Peterson. He said there were fewer restrictions in the 1996 Code, but despite that the owners want to go back to 1993 so the City has conceded to that date.

Coun. Stanton referred to page 2 of Peterson's October 11 letter "Instead, a business entity that converts to a limited liability company 'continues its existence despite its conversion' ORS 63.479(1)(a)." She asked Rappleyea to respond to that.

Rappleyea said he reviewed that statute and that was one of the ambiguities. He said if he was risk adverse, he would say that the 1996 date would be the clearest cut off point. He said to take issues off the table and because there were legal arguments raised that may potentially cloud the issue, he recommended going back to the 1993 date. He said they were being extremely cautious about this because applicants get their attorney's fees which can be enormous. He said he was being extremely cautious about granting waivers.

Coun. Stanton asked if the ORS 63.479(1)(a) does not change the fact that the LLC was incorporated when it was incorporated; would he be willing to waive the technicality.

Rappleyea responded that that provision would not directly affect ownership; the property is still owned in a different entity. He said it is a legal argument; to be risk adverse and to avoid any chance of attorney's fees, and because there is so little difference between the 1993 and 1996 Codes, he would recommend going back to the 1993 Code.

Coun. Stanton referred to Measure 37 and asked when she reverted back to 1993, would that mean that they have to use the Code as it was written in 1993 or could she apply sections of the 1997 or 1999 Codes.

Rappleyea responded the 1993 Code would apply and they could not pick and choose sections from other Codes.

Coun. Stanton referred to the applicant's Exhibit D, (page 38) of the staff report that listed various Code sections. She asked if a Measure 37 claim could choose to apply sections from several Codes, such as 1993 and 1999.

Rappleyea said if the applicant was asking for a wholesale waiver of that section, they would be saying that everything in that Code is problematic and reduces the property's value, they would have to apply the whole Code that existed at that time. He said there would be applications coming up in the future and more would be known about how Measure 37 is interpreted by the courts at that time. He said more guidance will be available then on how to apply the Code. He said this was his current recommendation for now.

Coun. Stanton said page 16 refers to Exhibit C and pages 71, 72 and 73 all reference this document and yet all three have a different date. She asked if he looked at the documents to check their validity.

Rappleyea said they were relying on the most recent statements of the applicant as to what date they wished to apply to the waiver.

Coun. Stanton asked Sparks about the dates and if they had any bearing on this issue.

Sparks said staff stayed focused on the 1997 date for cross referencing the material. He said he did look at that but there were no Code changes in the weeks reflected in those dates, so it did not appear to be a significant issue to raise in the staff report since they were focusing on the 1997 date.

Coun. Stanton asked if someone could look at the documents and tell her which one takes precedent, as it is confusing to have three different dates for the same document.

Sparks said Ordinance No. 3975 was adopted in 1997, so for the record when 1996 has been mentioned in this discussion it should be 1997. He said Ordinance No. 3975 revised the uses allowed in commercial and industrial zones. He said in the supplemental memorandum it was noted there are three uses which were not listed in 1993; eating and drinking establishments, financial institutions and temporary living quarters. He said the 1993 Code was silent and did not list these activities as permitted uses; they are permitted uses in the current Code.

Coun. Stanton referred to the permitted uses listed on page 4; she noted under the TC Zone the memorandum says there are eight permitted uses but she counted ten in the table.

Sparks said the 1997 Code and the current Code do not match exactly. He said in the 1997 Code Churches/Places of Worship also included Social & Fraternal Organizations as one use classification. He said in the current Code those two are separated. He said the eight permitted uses in the 1997 Code resulted from combining Churches/Places of Worship/Social and Fraternal Organizations as one use, and Single/Multi-Family Dwelling/Attached Dwellings as one use.

Coun. Arnold said she did not see the update that came in Friday and asked staff to explain who the owners were in 1993 and in 1997.

Rappleyea said in 1993 the property that was in the sole ownership of the Weils as people, was transferred to a general partnership; then in 1996 that partnership was converted into a Limited Liability Corporation. He said in Peterson's October 11 letter, he indicated that there are new arguments for going back to 1993.

Coun. Arnold asked if the City was setting precedents by taking one date over the other and if there were any ramifications from that.

Rappleyea said he did not think the City was setting precedents as this area of the law was in considerable flux right now.

Coun. Arnold asked Sparks if he knew what differences were in the Codes for those years.

Sparks said the City had an extensive history of all the ordinances that have ever been passed by the City. He said the Codes could be recreated for these years. As an example, he noted the Code was changed six times between 1993 and 1997; of those six ordinances, one does affect these two properties and two others might affect the properties. He said the ordinance covering neighborhood review meeting was a process requirement; while this might apply to the properties, the process does not devalue the property. For example, requiring a property owner to go through design review would not devalue the property.

Coun. Arnold asked if the City accepted 1993 as the effective date and the owner later decided it should have been 1997 what action could the City take.

Rappleyea said the City would have the prior claim and the owner's arguments that this Code section was reducing the value would be in question if the owner was now saying the exact opposite. He said there could be some waiver arguments if they ever tried to raise the claims again. He said one of the ambiguities of Measure 37 is in determining when a claim is over. He said he did not think the courts would look kindly on a claimant if that happened.

Coun. Arnold asked if the City could agree to a signed waiver that would say "This is what you really want and this is what you're going to get." She asked if the Council could ask for that now.

Rappleyea said that was what the Council was doing now. He noted the City had the property owner's request and their latest letter from October 11, and there is a catch-all at the end of the waiver that basically says " Furthermore the waiver shall be construed to mean that upon a land use application for permit, the City shall waive any land use regulation that was enacted after (a date) that the City believes restricts the use of real property and reduces the value of the property." He said these claims should take place in the context of a land use application and he said in this broad waiver is where the "rubber would hit the road." He said this was the safety valve for the issues that Coun. Arnold raised.

Coun. Stanton asked what the height limit was in 1993.

Sparks said it was 60 feet, which is the same as in 1997.


David Petersen, Tonkon Torp LLP, Portland, attorney for Weil Enterprises, LLC reviewed the ownership history of the two properties. He said in1967 and 1960 the Weil family acquired the property. He said on May 19,1993, Robert Weil conveyed the property to Weil Enterprises General Partnership that consisted of Robert Weil and his three daughters. He said on September 11, 1996, the Partnership converted to a Limited Liability Company, still owned by Robert Weil and his three daughters. He said on October 3, 1996, his firm recorded a Real Estate Records Notice, to give public notice that the Enterprise had become an LLC. He said he assumed that sometime between then and April 30, 1997, some party advised them that the notice needed to be done by deed, not by Real Estate Records Notice, so a deed was recorded that memorialized the event that took place on September 11, 1996.

Peterson agreed with Rappleyea that Measure 37 was in flux and said he wanted to be on the record that he was not waiving any claims that the waiver should go back to the dates in the 1960's. He said for the purposes of this hearing, and because he understood where staff's recommendation was coming from based on current case law, the current owner of the property became the owner of the property on May 19, 1993. He said it changed form on September 11, 1996. He said those were the two dates under consideration and the subsequent recording of documents was only for purposes of notice; it did not cause anything substantive to happen.

Peterson said he wished to address what a Measure 37 waiver entailed. He said it was a waiver of regulations, not a waiver of a Code. He said the entire Development Code would not be thrown out and replaced by the 1993 Code. He said this application was permitted under Measure 37 in its first two years of its existence, which expires December 2, 2006. He said it was a waiver without an underlying land use application. He said after December 2, 2006, any land owner who wants to claim a Measure 37 waiver will first have to apply for something, have it denied and then seek compensation or a waiver of regulations that affected its denial. He said until December 2, land owners could apply for a blanket waiver, which says that land use regulations that reduce the value of your property and were enacted after the date the present owner acquired the property, should be waived. He said if the Council should grant a waiver effective May 19, 1993, if two years from now the Weils come in with a land use application and that application is thwarted by a regulation enacted after the relevant date, then they are entitled to a waiver of that regulation. He said it was regulation specific and it depends on an evaluation at that time to determine if the regulation has a negative impact on property value. He said they are not entitled to a waiver of every regulation in the Code; it is only the regulations that negatively impact property value. He said with the waiver, all they were doing was fixing the date at which any regulations enacted after that date should be waived upon request.

Peterson said this was the prevailing interpretation at this time. He said Measure 37 was an ambiguous measure and case law would change over time as the courts interpret the measure. He said under current interpretation from two cases, the waiver is to the date the current owner acquired the property, it is a blanket waiver of any regulation enacted after that date that negatively impacts property value.

Peterson said there was some uncertainty about eating and drinking establishments in the 1993 Code vs. 1996 Code, as it was not mentioned in the 1993 Code as a permitted or prohibited use. He said a Burgerville Restaurant has been on the property since 1969 so he suspects that in 1993 eating and drinking establishments were a permitted use on the property. He said there was no evidence that this was a non-conforming use.

Peterson referred to Coun. Arnold's question concerning the claimant getting a one-time shot at this and then coming back later if the facts change. He said any changes in law as they go forward, would entitle the claimant to revisit their request based on the change in the law. For example if there was a change in the law that said the applicable date was in 1967, then the claimant could come back and apply for a new waiver going back to 1967.

Peterson referred to Code Section 2.07.045(A)(3) that describes the waiver. He said this section says the waiver is non-transferable, which is the Attorney General's opinion at this time. He said regarding the waiver, he would like to preserve for the record the possibility that it is transferable, if that is how the law develops. He said that section says the wavier is only valid for as long as the claimant owns the property to the same extent that they owned it on the day of the waiver. He said that was contrary to the provision in Measure 37 that says "The present owner of the property is the owner of the property, or any interest therein." He said it would seem that as long as Weil Enterprises, LLC owns an interest in the property, the waiver would be good; not just for as long as they own 100% of the property as it currently exists.

Coun. Stanton asked Peterson if they wanted to pick and choose what they wished to comply with under the different Codes (1993 and 1997). She said she did not understand his statement that the 1993 Code would not be the Code being applied.

Peterson referred to Sparks' earlier comment that procedural regulations do not negatively impact property value. He said Measure 37 only applies to regulations that impact property value. He said the many regulations that do not impact property value would continue to apply to an application made at any time. He said there were other regulations that do affect the property value, such as the building height which is the regulation they addressed in their claim. He said the building height in the 1993 Code was 60 feet; currently it is 30 feet. He said an argument can be made that that reduces the value of the property; and when the Weils apply to develop the property they could use the blanket waiver to apply the 60 foot regulation, assuming they could demonstrate that the 30 foot regulation negatively impacts property values.

Coun. Stanton said she was more concerned about use than height. She asked how the change in uses would affect the whole process; there is more flexibility in uses in 1997 than there was in 1993.

Peterson said the analysis is the same. He said if the Weils applied for a use that was prohibited today, and there was a regulation enacted in 1993 that caused that prohibition, and that regulation negatively impacts property value, there would be a give and take between the claimant and the City to determine if using a property for one use (financial institution) was worth more than not using the property for that use. He said with the blanket waiver currently being considered, that analysis is being deferred to the future when there may be an application. He said for the record he was using the current state of the law which could change.

Mayor Drake said he thought the Council should take this request on its face value and if there are any changes from future court decisions or legislative actions, they should be dealt with at a later time.

Coun. Arnold asked if he was saying that it was not relevant if their understandings are different on what they are passing.

Mayor Drake said at this point all that was being asked was that the Council pick a date to determine the effective date of the claim for Measure 37. He said Peterson also stated this was simply a process to set a waiver in place and after December 2, if the applicant returns with an application the project will be evaluated based on the effective date.

Coun. Arnold asked if when the applicant returns with a real application would they have to show there would be a decreased value.

Rappleyea explained what Council was doing now was setting the date and waiving the specific Code sections that are set out in the claim. He said there was a broad blanket waiver that says when the land use application is made, the City can evaluate it to see if it actually does release value. He said there may be no argument; they may submit an application that completely complies with the Code and there would be no issue. He said they were taking a wait-and-see approach.

Petersen said there is a right answer in terms of what is the correct date. He said in his opinion the applicant is entitled to the date in 1993.

Coun. Bode said Measure 37 had to do with land use and it was interesting that this comes before the Council without a land use plan. She said they were getting half the story; it was also interesting that the three daughters now own the LLC and Petersen's interpretation is that as long as they are a party to the ownership it would apply. She said the daughters could sell off 99% of the right to the LLC and because they retained 1%, that would still give them the right to a Measure 37 claim. She asked if that was what he was saying.

Petersen said they could sell off 99% interest in the property, which is different than an interest in the company. He said if Weil Enterprises LLC had 1% interest in the property, then it is an owner of the property as defined in Measure 37 and therefore entitled to the waiver.

Rappleyea said that was one of the hot-button issues of Measure 37 and he has heard arguments on both sides. He said he would disagree with Peterson's interpretation and he would say it is a proportionate share. He said it is a difficult question to answer right now.

Mayor Drake said that question would be handled in the future.

Rappleyea said last year the Oregon Legislature tried to resolve some of these issues and failed. He said hopefully they may have some answers this year.

Coun. Bode said she was hesitant because there is no land use application to consider and this was frustrating as the Council does not have full knowledge.

Mayor Drake said if there is a fear that the City may lose something or the development would not fit in with what is currently in place, the 1993 and 1997 Codes are very similar.

Mayor Drake asked if there was anyone in opposition to the claim.

No one indicated opposition to the claim.

Rappleyea stated there was no rebuttal.

Mayor Drake closed the public hearing.

Coun. Dalrymple MOVED, SECONDED by Coun. Doyle that in the matter of the Weil Measure 37 Claim (M37 2006-0001) that Council deny the request for compensation but grant a waiver of the use restrictions as of May 19, 1993, as described in the staff report and direct staff to prepare a final written order for the Mayor's signature.

Coun. Stanton said she would never sign a blank permission slip and that is how she feels this is being done. She said she is not comfortable with this but she understands that the City is constrained in this matter.

Coun. Doyle said he would support the motion as the task before Council was to establish a date for the future. He said this is a starting point for everyone and it may never come into play. He said he was comfortable with this decision.

Coun. Dalrymple said that the Council needed to act this evening because of the reasons stated by Coun. Doyle. He said that was why he made the motion.

Call for the question. Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)


06194 PULLED - TA 2006-0003 (PUD Text Amendment) (This item is to be brought back at a future meeting; no discussion or action was taken by Council.)


06195 PULLED - TA 2006-0003 (PUD Text Amendment) (Ordinance No. 4409) (This item is to be brought back at a future meeting; no discussion or action was taken by Council.)


There being no further business to come before the Council at this time, the meeting was adjourned at 8:50 p.m.


Sue Nelson, City Recorder




Approved this 13th day of November, 2006.

Rob Drake, Mayor