BEAVERTON CITY COUNCIL
REGULAR MEETING
APRIL 16, 2007

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, April 16, 2007, at 6:30 p.m.

ROLL CALL:

Present were Mayor Drake, Couns. Catherine Arnold, Betty Bode, Dennis Doyle and Cathy Stanton.  Coun. Bruce S. Dalrymple was excused.  Also present were City Attorney Alan Rappleyea, Chief of Staff Linda Adlard, Finance Director Patrick O'Claire, Interim Community Development Director Steven Sparks, Public Works Director Gary Brentano, Library Director Ed House, Human Resources Director Nancy Bates, Police Captain Stan Newland and Deputy City Recorder Catherine Jansen.

VISITOR COMMENT PERIOD:

Henry Kane, Beaverton, submitted a letter to the Council objecting to the Community Development Director's Interpretation of Development Code Section 60.50.25.4 regarding an existing church building at 12255 SW Denney Road which was proposed to be converted to a religious center (DI 2007-0002).   

Coun. Arnold asked City staff if this issue could come before Council by appeal.

Interim Community Development Director Steven Sparks explained that the appeal period for DI 2007-0002 would expire on April 23, 2007, at 5:00 p.m.  He said the appeal fee was $250.00 and the appeal would be heard by the City Council.  He said that according to the Code, the appeal could only be filed by the applicant or parties of record (those who participated in the process).  He said Kane was the only party who submitted comments to the record for DI 2007-0002, so he was the only party that could appeal the Director's Interpretation since the applicant would not appeal.

City Attorney Alan Rappleyea explained to Kane that an appeal would have to be filed so that this matter could be brought to Council to make a determination on the Director's Interpretation. 

Kane said he would probably file an appeal.

COUNCIL ITEMS:

Coun. Stanton said that on April 18, 2007, at 8:30 a.m., the Vision Action Network would hold its Community Faith Forum; interested parties could call the Network at 503-846-5792 if they wished to attend.  She said on April 19, at 7:30 a.m., the Essential Health Clinic would have its business breakfast at the Tuality Country Club; people could call 503-846-4904 if they wished to attend.  Also, a Regional Livability Summit will be held at the Smith Center at Portland State University on April 19, from 8:00 a.m. to 4:00 p.m.  She added that on Saturday, April 21, the City would hold its Neighborhood Summit on Living Green, from 9:00 a.m. to 12:00 p.m., in the City Hall Council Chamber; those who wished to attend could call the Neighborhood Office at 503-526-2343 to register. 

STAFF ITEMS:

Rappleyea said that the Council had authorized a contract for outside legal counsel for the case of Police Officer Jessica Hull.  He said Susan Isaacs would handle the case and it would go to trial tomorrow. 

CONSENT AGENDA:

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

Minutes from the Regular Meeting of April 2, 2007

07074  Social Service Funding Committee Recommendations

07075  Approval of the City of Beaverton 2007 Action Plan Submission to Washington County

Coun. Doyle thanked Coun. Bode and the Social Services Funding Committee members for their work to distribute these funds.  He said he knew it was a soul-searching expedition.

Coun. Bode said that annually the City received State Shared Revenue that it used to fund social service non-profit groups.  She said one of the Committee's funding criterion was how many Beaverton residents were served by the program offered by the non-profit group.  She said this year there were 34 applications totaling over half a million dollars and the City had $249,000 to distribute.  She reviewed the services provided by the non-profit groups.  She said she was delighted to see this go forward. 

Coun. Stanton said the City was able to fund these social service groups using funds received from the Community Development Block Grant Program and a portion of the monies received from alcohol and tobacco taxes.  She stressed no City tax dollars were used to fund these social services.  

Coun. Stanton added that if the City were to lose a portion of its share of alcohol and tobacco taxes during the next legislative session it would impact the funds available for social services.  She said in order to continue funding social service groups, citizens would need to advise the Council and Mayor that they want the City to find another funding source for these services.  She said citizens could contact the Council and Mayor through the City's Web page at www.beavertonoregon.gov.

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

PUBLIC HEARING:

07064  Harmony Investments Ballot Measure 37 Claim for Compensation M37 2006-0003 (Rescheduled from 04/02/07 Council Meeting)

Mayor Drake opened the public hearing.

Interim Community Development Director Steven Sparks read a prepared statement defining the process that needed to be followed for this hearing, including the various required disclosure statements (in the record).

Sparks asked if any Councilor had a potential or actual conflict of interest to declare.

No one declared a conflict of interest. 

Sparks asked if any Councilor had an ex parté contact to declare.

No one declared an ex parté contact.

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

No one declared any site visits.

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

No one submitted a challenge or requested a continuance of the hearing. 

Sparks said this claim was for property on the north side of Allen Boulevard, between Highway 217 and Western Avenue.  He said the site was acquired by the claimant in July 1986.  He said currently and at the time of acquisition, the site was zoned IP (Industrial Park).  He said the 1986 Code was very similar and in some places identical to the 2007 Code.  He said Dave Peterson, Tonkon Torp LLP, the claimant's representative, submitted a letter dated April 6, 2007, in which he disagreed with staff conclusions in the staff report about how the Code would be applied today. Sparks said one issue Peterson raised was whether office or retail uses were permitted.  He said in the report staff had responded to the retail and office use issue because the claimant submitted correspondence in the claim stating that office and retail uses have a value; Harmony Investments claimed that the City's regulations have devalued the property by over $3 million.  He said since those were the only regulations that were identified those were the regulations to which the City responded.  He said the City staff recommendation was not to pay the compensation claim and waive the regulations back to the July 1986 Code. 

Coun. Stanton said that in Peterson's April 6 letter, page two referred to purchase of the property on July 10, 1986.  She asked if an application would be reviewed based on the regulations in effect on the day the application was submitted.    

Sparks responded that was correct as far as the regulations apply to limitation of use. 

Coun. Stanton asked if there was anything in M37 that would allow the claimant to pick a different date if he did not like the 1986 date. 

Rappleyea said that was a difficult question to answer.  He said generally what staff needs to see are the specific ordinances that the claimant wants to waive.  He said that had not happened yet on any claim.  He said that was why the recommended waiver that jurisdictions across the state were using was a generalized blanket waiver, where claimants identify the requirements that they believe are impacting the value of their property and the City waives those requirements.    

Coun. Stanton asked if the waiver covered the requirements from 1986 to the present and whatever existed in 1986 was what would be used. 

Rappleyea said the language of M37 was vague.  He read from the report "Furthermore, the waiver license shall be construed to mean that upon a land use application for a permit by Harmony Investments, LP, the City shall waive any land use regulations (as defined by M37) that were enacted after July 10, 1986, that the City believes restricts the use of the property."  He said the City wants to have the authority to say what sections restrict the use of the property since it has to waive the regulations.   

Coun. Stanton said that though the waiver was back to 1986, the claimant really wanted the Code provision from 1994 because 1994 modified 1986.  She asked if M37 allowed the claimant to state that they want to use the 1994 provision as opposed to what was available in 1986 when the property was purchased. 

Rappleyea said that that was his best guess and that was how it had been interpreted for the pre-December 2006 claims.  He said it was hoped that when applications were submitted the developer would let the City know which Code sections they wanted waived. 

Sparks emphasized that these were limitations on use only; there was not a limit on the procedure.  He said the application would go through the current design review process not the process that existed in the 1986 Code

Coun. Arnold questioned if a property went through several zoning changes would the property owner have to go back to the original density of the property when it was purchased.

Rappleyea said property owners get to "pick and choose" what Code they wish to apply under M37.  He said the claimant would state what regulations they thought reduced their property value; the ultimate decision would be made by the body that would consider that application. 

Coun. Arnold asked if that was what reduced the value of the property or was it the value of the property based on what could have been done with it in the ensuing years from when it was initially bought.

Rappleyea said the conservative approach was to say it reduced the value.  He said there were many arguments about how to interpret value in M37.  He said the measure was very skewed and local governments were better off not challenging the claims because if the claim went to court they could end up paying attorney's fees. 

CLAIMANT:

David J. Peterson, Tonkon Torp LLP, attorney representing the claimant, said in listening to the discussion, the claimant was in agreement with the collective opinion of the City of Beaverton.  He said the only distinction that they were concerned about in the staff report was the idea of wholesale trading of the current Code for the 1986 Code.  He said this was a one way street kind of law.  The land owner has the benefit of waiver as to regulations that would decrease value, but there was no corresponding obligation on their part to accept regulations that may have existed in 1986 that were subsequently changed in such a way that increased the value.  He said this was a prospective waiver and what was really being done with the pre-December 2006 claims was fixing the date on which the claimant acquired the property.  He said this was done so that in the future when the claimant submits an application they can identify the regulations that negatively affect the value of the property so they would be entitled to the waiver at that time.  He said he thought it was incumbent on the claimant, at the time the development application would be submitted, to identify for the City the regulations that are subject to the waiver and how they would affect the value.  He said M37 was clear that the only regulations that can be waived are those that negatively impact the value of the property.  He said the value of the pre-December claim for the owner was the prospective waiver of the regulations that negatively impact property value.   

There were no Council questions for Peterson.

No one else wished to testify on this matter.

Mayor Drake closed the public hearing.

Coun. Doyle MOVED, SECONDED by Coun. Bode, that Council deny the claim for compensation and grant the limited waiver of the Development Code as identified in the staff report attached to Agenda Bill 07064, Harmony Investments Ballot Measure 37 Claim for Compensation M37 2006-0003.   Couns. Arnold, Bode, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (4:0)

RECESS:

Mayor Drake called for a brief recess at 7:16 p.m. 

RECONVENED:

Mayor Drake reconvened the meeting at 7:26 p.m.

WORK SESSION:

07076  Ordinance to Adopt Procedures for Reviewing Candidate Statements in City Voters' Pamphlet

Rappleyea explained that last year there was an issue about how to interpret Chapter VI, Section 30.B of the City Charter.  He said that Charter section stated that the City shall prepare a voter's pamphlet and if the Council found that there was a material misstatement of fact published in the voter's pamphlet which was submitted by or in behalf of a person nominated or elected to the Council, the nomination or election of that person would be nullified.  He said staff had to determine how to apply this section of the Charter.

Rappleyea said he drafted a proposed ordinance that was distributed to Council last month for review (attached to Agenda Bill 07076).  He said last Friday he developed a second draft of the ordinance which he distributed to Council (in the record).  He reviewed both versions of the ordinance.  He said the first draft provided a detailed procedure about how the Council would hear the matter of a misstatement and make a determination; it would follow the Constitutional due process and would ensure that all rights would be protected.  He said as he thought more about the issue he realized this could be a difficult matter as it could involve a challenge to an incumbent Councilor and the other Councilors would have to make a decision about a fellow Councilor. 

Rappleyea said because of the reasons previously stated he prepared a second draft ordinance whereby a candidate who makes a false statement in the voter's pamphlet would be subject to civil and criminal causes of action found in ORS 260.532 and ORS 260.715 (in the record).  He said ORS 260.532 provides that a challenge to a voter's pamphlet statement would be handled in Circuit Court; ORS 260.715 provides the District Attorney a potential criminal cause of action because a false statement was made under oath under the City's election laws.  He said this would provide a strong incentive for candidates to be careful in their voter's pamphlet statement.  He said the remedy for both ordinances was that the election would be nullified.

Mayor Drake confirmed with Rappleyea that the City Charter currently calls for the removal of a candidate but there was no procedure provided in the City Code.  He said that by adopting an ordinance there would be a direct link with State law.  He said the second draft would remove the Council from having to take all of the action and the challenger would need to go to Circuit Court and rely on the City Code as the authority to take that action.    

Rappleyea said in the second draft ordinance the initial decision would be made by the judge and the final decision to nullify the election would be made by the Council.  He said that was also in agreement with the Charter.

Coun. Stanton said on the face of it going to Circuit Court looked fine; however, a citizen would not be able to go to the Council to register their complaint which would be easier and less costly.  She said Circuit Court would be costlier and could take more time.  She said the Circuit Court makes more sense except that this is a local issue and not of the same magnitude as a Federal or State election law violation.  She asked what would be the cost to go through Circuit Court.

Rappleyea said the first ordinance was more hands on; the City handles the investigation and makes the decisions.  He said there would be a cost to file the complaint and the cost for staff time to handle the matter would be substantial.  He said the cost for going to Circuit Court was a $360 filing fee and cost for attorneys.  He said under the first ordinance where the investigation was handled by the City, the City would end up as the defendant in Circuit Court.  He said under the second ordinance, the aggrieved person would file in Circuit Court and would face the candidate; the City would be the final arbitrator of the result of the case. 

Coun. Stanton asked if someone challenged her voters’ pamphlet statement and took it to Circuit Court would she be covered by the City under CCIS.

Rappleyea replied that he doubted she would be covered for that would not be within the scope of the insurance.

Coun. Stanton said she was concerned about making this a civil matter because she felt the Council could better determine a material misstatement of fact rather than a judge.

Coun. Bode said the ordinance did not preclude a candidate from submitting written proof for the statements in the voter's pamphlet at the time of filing.    

Rappleyea said that was correct.

Coun. Arnold said that she thought of this ordinance as a deterrent so that candidates would know they were liable for false statements.  She asked if there was a way the City Attorney could screen a complaint to see if it was legitimate.  She said she had a false claim filed against her during the election and candidates should not have to be subjected to that. 

Mayor Drake said that one concern was that under the City Charter the Council appoints and removes the city attorney and municipal judge.  He said if someone accused a sitting City Councilor of a material misstatement, then that would put the city attorney in a difficult spot of having to challenge his employer.    

Coun. Arnold said she thought that would be moving in grayer territory.  She said she was trying to prevent outrageous claims.

Coun. Stanton said material misstatement of fact was in the Charter and was easy to determine versus a simple mistake such as a wrong date.  She said she did not want to send a person to Circuit Court if a fact could be easily verified.  She said she was not comfortable with shifting the responsibility from the City Council to the legal system. 

Rappleyea said the second ordinance (Circuit Court) was how the counties or State handled such matters; it was not an unusual process.  He said there was a provision for recovery of attorney fees in the case of bogus claims.    

Coun. Bode said she was leaning toward having it go to Circuit Court; for she did not want to put the city attorney in the position of having to challenge one of the Councilors.  She said it was more likely that such claims would deal with a substantial issue and should be handled in Circuit Court.

Coun. Stanton added that nothing being considered under this matter would preclude someone from filing a complaint with the Secretary of State's Office.

Coun. Arnold said she could not see that a city attorney's job would be in jeopardy for something as straight forward as a material misstatement of fact.    

Coun. Bode said it would not be possible to predict what would happen in the future.  She said it would not be possible to know what future elections would be like; would accuracy be a priority or would it be viewed as micro-management of elections.  She said that should be considered.

Coun. Stanton read from Section 2.05.487.2 of the Circuit Court ordinance which provided that "a signed statement attesting to the truthfulness of the voter's pamphlet submission statement, shall also contain a provision that the candidate agrees to provide supporting information if requested by the City and shall release authorized third parties to participate in an investigation under this ordinance."  She asked if that meant that though this would go to Circuit Court, the City still wanted to make a determination if there was a material misstatement. 

Rappleyea replied that was correct; that would still allow the City to obtain the information needed to make a determination. 

Coun. Stanton said that relieved her concerns about the Circuit Court, for Council would be able to look at the information available and make a determination if there was a material misstatement separate from the Circuit Court.

Rappleyea said that was possible but it would not preclude the Circuit Court from acting.  He said the City would be able to obtain the information and provide it to the parties who requested it.

Mayor Drake said the safest solution politically and from a hands-off position, so the Council would not be investigating one of its own members, was the Circuit Court.  He said it was the safest solution for it would take it out of the Council's hand and would not be political.  He said the other side was that though it was consistent with the County process, the process could look daunting to a citizen if they could not start locally.  He said if someone had done something wrong, a citizen should have the opportunity to address the Council.  He added the Council was available almost every Monday evening; a citizen would not have to go far to access the Council and cost would be limited.   He said going to the County or the State was a bigger hurdle.  He advised the Council could take more time to think about the issue; the ordinance could be brought back later.  He said Coun. Dalrymple may have comments to submit.   He said the Council's best asset was that it was always available to its citizens and he did not want to lose that.

Coun. Bode said she did not think the Circuit Court ordinance precluded a citizen from going to the City and questioning a statement.  She said the City could still check the validity of the statement.

Mayor Drake said he wanted to be sure that it would not be too hard for people to access information and that it would be addressed publicly.

Coun. Bode said regarding the $360 cost to file in Circuit Court, it currently costs $350 for candidates to submit a statement into the Washington County Voter's Pamphlet and the City had a separate cost for its own pamphlet.     

Coun. Doyle said he needed to reflect further on the ordinance.  He agreed that Section 2.05.487.2 of the Circuit Court ordinance would allow citizens to bring this issue to Council and it would allow the City to obtain information to determine if there was a material misstatement.  He agreed that it was important that citizens could have access to the Council on such matters.  He said unless the issue went to Circuit Court he would not support the ordinance.  He said the Council should not be judging its own members or an opposing candidate. 

Rappleyea said this could be brought back to Council in a month or so.

Coun. Stanton said she wanted additional time for review.  She said per the City Charter it was the Council's responsibility to determine if there was a material misstatement of fact.  She said she liked the rebuttal presumption that was in the first draft ordinance (Section 2.06.486), except that the last sentence "The burden rests with a challenger to the veracity of a fact to overcome this presumption" negated the signed statement that allowed for supporting information and investigation.  She said she was not sure how the two balanced.  She said she also liked the section in the first draft ordinance on the verification of facts.  She said she wanted the policy without the constraint of saying that the burden rests with the challenger and at the same time the candidate has to provide the proof.

Rappleyea said that was how due process hearings were setup; the presumption of innocence means the challenger has to prove that a statement is false.

Coun. Stanton noted that last year a citizen with specific knowledge challenged a candidate (not Coun. Arnold); there was no way that anyone other than the candidate could obtain the information and the candidate chose not to do so.  She asked how she could challenge someone if she could not access the information and the candidate refused to do so.  She said that going to Circuit Court would not help in that situation. 

Rappleyea said that the language in the submission requires a signed statement authorizing a third party to access information.  He said that statement could be submitted to an outside organization for release of information.  He said the City did not have that statement when this occurred last year.

Coun. Arnold asked how long it would take to go through the Circuit Court route and if it was found that an incumbent made a material misstatement would they be required to give up their Council seat. 

Rappleyea replied that if there was a material misstatement, the Council could then remove the person.  He said the Circuit Court might do this on its own, but if it did not then the Council could.  He said the City could request an expedited review and the court would probably agree because this was an election matter.  He said his experience was that election disputes are handled quickly by the courts.    

Coun. Stanton confirmed with Rappleyea that the City Charter section regarding material misstatement applies only to the voter's pamphlet. 

Mayor Drake said this would be brought back in about a month. 

Coun. Arnold confirmed with Rappleyea that this would only affect current elections. 

ORDINANCES:

Second Reading:

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

07073  An Ordinance Amending Beaverton Code Section 8.02.015(A) and Repealing a Portion of Beaverton Code Section 8.02.015(E) and Declaring an Emergency.  (Ordinance No. 4434)

Coun. Doyle MOVED, SECONDED by Coun. Bode, that the ordinance embodied in Agenda Bill 07073 now pass.  Roll call vote.  Couns.  Arnold, Bode, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (4:0)

ADJOURNMENT: 

There being no further business to come before the Council at this time, the meeting was adjourned at 8:04 p.m.

 

______________________________
Catherine Jansen, Deputy City Recorder

 

 

APPROVAL:

Approved this 7th day of May, 2007

__________________________________
Rob Drake, Mayor