BEAVERTON CITY COUNCIL
REGULAR MEETING
APRIL 2, 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 2, 2007, at 6:35 p.m.

ROLL CALL:

Present were Mayor Drake, Couns. Catherine Arnold, Betty Bode, Bruce S. Dalrymple, Dennis Doyle and Cathy Stanton.  Also present were City Attorney Alan Rappleyea, Chief of Staff Linda Adlard, Finance Director Patrick O'Claire, Public Works Director Gary Brentano, Library Director Ed House, Human Resources Director Nancy Bates, Police Chief David Bishop, Transportation Engineer Jabra Khasho, Development Services Manager Steven Sparks and City Recorder Sue Nelson.

PROCLAMATIONS:

Mayor Drake proclaimed April 8-14, 2007, as Arbor Week and noted Beaverton was a Tree City USA. He asked staff for information on the City's tree planting event scheduled for the end of the week.   

Public Works Director Gary Brentano said the tree planting was scheduled for Saturday, April 14, at Schiffler Park, at 9:00 a.m.  He said the planting would replace trees that had to be removed because they were a hazard to a neighboring lot.  He said the event was taking place in cooperation with Friends of Trees and interested citizens could volunteer to help plant the trees.  He said the event would be held at the north end of the park, adjacent to the parking lot. 

PRESENTATIONS:

07060  Washington County Consolidated Communications Agency Briefing

Mayor Drake introduced Paul Pedersen, Executive Director, Washington County Communications Agency (WCCCA).  He said Pederson had been with WCCCA for one and one-half years.  He said the City was a member of WCCCA and he invited Pederson to give Council an update on the agency's activities. 

Pederson said WCCCA was a 190 Agency that was owned by all the public safety providers in Washington County for whom WCCCA provided dispatch services.  He said WCCCA was the second largest dispatch center in Oregon.  He said the WCCCA Board consisted of a representative from each of the member agencies and it meets quarterly.  He said for daily oversight, WCCCA has a CEO Board that is chaired by Mayor Drake.  He said the budget for the upcoming fiscal year was over $11 million; 20% of that was from the 911 Excise Tax on phone utility bills and 80% from member's user fees.  He said next year the user fees for the City of Beaverton would be $747,000 for dispatching and $44,000 for the radio network. 

Pederson said last year WCCCA dispatched 513,000 police incidents (24% were Beaverton calls); 48,000 Fire/EMS calls; and answered 93,000 911 calls and 94,000 non-emergency calls.  He said WCCCA owned and operated the County's radio system.  He said all four counties in this region have the same radio system and that provides good intercommunication throughout the region during times of major disasters.  He said the system was expanding with the addition of radio channels and six new radio sites (currently there were four); two of the new sites were in Beaverton and that would improve radio and in-car mobile data communications. 

Coun. Stanton asked if the additional channels and radio sites would help overcome the Nextel issue of breaks in service. 

Pedersen replied no.  He said the Nextel problem would be solved by moving some existing channels to a different place on the radio band.  He said Nextel would finance those improvements but that would not affect coverage.

Coun. Arnold asked if WCCCA had to coordinate with the National Emergency Management System.      

Pedersen said WCCCA was part of the Urban Area Security Initiative (UASI).  He said there were five counties in UASI.  He said he chairs the Communications Working Group of UASI and works closely with his counterparts in the six other communication centers in the region to coordinate systems and maintain the level of operability that has been built over the years.  He said UASI receives grant funds from the Department of Homeland Security.   

Council thanked him for the presentation.    

VISITOR COMMENT PERIOD:

There were none.

COUNCIL ITEMS:      

Coun. Stanton referred to the memorandum responding to her Council questions and noted Questions 3 and 4 relate to the Weisman Ballot Measure 37 Claim, not the Williams Claim.    

Coun. Doyle asked if Councilors had received the Economic Interest Statements from the State this week.  The Councilors indicated they had received them.
STAFF ITEMS:

There were none.

CONSENT AGENDA:

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

Minutes of the Regular Meetings of February 26 and March 19, 2007

07061  Special Purpose Grant Budget Adjustment Resolution for 2007 Oregon Office
for Community Dispute Resolution Carry Forward Funds Grant (CFFG)
(Resolution No. 3894)

Question called on the motion.  Couns.  Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)  Coun. Stanton abstained from voting on the minutes of February 26, 2007, as she did not attend that meeting.

PUBLIC HEARINGS:

07062  Appeal Hearing on Traffic Commission Issue No. TC 609 Regarding a Traffic Signal at SW Brockman Street and Sorrento Road

Mayor Drake opened the public hearing.

Traffic Engineer Jabra Khasho reviewed the staff report (in the record).  He noted a letter dated March 28, 2007, was received from Krystal Pease, Chair, South Beaverton Neighborhood Association Committee (NAC), stating that the NAC Board voted unanimously to support installation of the traffic signal. 

Mayor Drake reviewed the procedure to be followed for the hearing.  He asked for Council questions. 

Coun. Stanton said the NAC letter stated that the vote was based on the traffic light being an actuation only from Sorrento and that there would be a two-to-three second delay prior to actuation.  She said that was not reflected in the Traffic Commission minutes.  She asked what information the NAC received, that the Commission did not receive, that said this would be an actuated signal with a delay.  

Khasho said the NAC received the same information the Commission received. 

Coun. Stanton said she would look at the report again. 

Coun. Doyle asked how long it had been since the intersection met at least three warrants.    

Khasho said in 1996 this intersection was reviewed for signal warrants and it met warrants then but the Traffic Commission decision was to not support installation of a signal and instead use the funds for the extension of 125th Avenue. 
Coun. Arnold asked how the intersection would be affected if 125th Avenue was extended.

Khasho replied that if 125th Avenue was extended, the Brockman Street/ Sorrento Road intersection would probably not meet the warrants for a traffic signal. 

Coun. Doyle said the staff report said that during peak hours the traffic volume at that intersection would drop between 100 to 200 trips; he asked what the peak hours were.

Khasho said the modeling showed the peak hour traffic.

Coun. Stanton said there was nothing in the staff report that Council received that addressed a Sorrento Road signal with a two to three second delay. 

Khasho said this was common practice for all signals in the City of Beaverton; all signals were actuated signals (the signal would not turn to green unless a vehicle was detected).  He said typically when there were several right turns at an intersection the signal would delay two to five seconds before turning green.

Coun. Stanton said she was having a problem differentiating between "typical or usual practice" versus a given certainty, as stated in the NAC/Pease letter that stated that the actuated signal was the basis for the NAC vote.  She asked if the information Pease had was different from what the Commission received.  She said in the Traffic Commission minutes, former Traffic Engineer Randy Wooley stated the actuation would only be determined after studies were done because they wanted to signalize the light at Sorrento Road with Brockman Street, Greenway Drive and 125th Avenue, so that traffic flow would be as smooth as possible.  She said that actuation was not a guarantee at the Commission meeting.   

Mayor Drake said Pease was in the audience and Coun. Stanton could ask her questions when she testified. 

Coun. Stanton said the information was not seamless to her at this time.

Coun. Doyle referred to the January 4, 2007, Traffic Commission Minutes (page 19 of staff report): "Mr. Wooley answered that staff can program traffic signals to detect that a car is present and then, during a short delay, cancel the call to stop traffic if the car turns and no longer needs the signal."  He said that could be where people were reading more into the signalization issue.

Coun. Stanton said the word "can" did not mean it would be done.  

Coun. Bode asked in terms of long-range planning, if this signal would be removed once the 125th Avenue Extension was constructed. 

Khasho said that was not guaranteed.  He said typically when signals are installed; citizens get used to them and do not want them removed.  He said if it did not meet warrants it could be removed.

Coun. Bode asked if it was reasonable to assume that if 125th Avenue was extended, and this intersection did not meet the warrants, that the signal would be removed.  She asked if this was part of the long-term transportation plan for this neighborhood.     

Khasho explained that the installation and possible removal of the signal was not part of any plan.  He said currently there was a possibility that the signal would be removed if 125th Avenue was extended and the intersection did not meet warrants.    

Mayor Drake said that if the 125th Avenue Extension was built, the Transportation Division would probably measure traffic at the intersection to determine if the signal was needed.  He said removal of a signal would have to go back through the Traffic Commission's formal process.    

Coun. Stanton referred to Wooley's comments in the Traffic Commission minutes that "staff had not invested time in detailed signal design because they do not know if the Commission intended to approve the recommendation."  She said the Commission also requested additional information on timing of the signals to ensure safe traffic flow eastbound onto Brockman/Sorrento from Brockman/Greenway.  She asked if staff had investigated this since the Commission hearing.    

Khasho said staff looked at the coordination plan between Sorrento/Brockman and Brockman/Greenway/125th Avenue.  He said the plan showed this would work if both signals were coordinated.  He said Wooley had indicated the final design of the signal in the report and it was noted in the Commission minutes.

Coun. Stanton said she was talking about the traffic flow.  She asked if work had been done regarding signal timing to see if traffic flow could move off of Sorrento Road onto Brockman/Greenway, given the fact that they were so close together and there were lines of cars in the a.m. and p.m. peak hours. 

Khasho repeated they had looked at the coordination of the two intersections and it appeared they would function properly. 

Coun. Stanton said she did not believe this could be done.

Mayor Drake said the Traffic Commission Chair was in the audience and Coun. Stanton could direct her questions to him when he testified.   

Mayor Drake asked the City Attorney to explain the difference between a public hearing “on the record” versus "de novo."

City Attorney Alan Rappleyea said a hearing "on the record" meant that the only evidence that could be considered was the evidence that was already submitted into the record at the Traffic Commission hearing.  He stressed no new factual evidence could be submitted at the Council hearing.  He said arguments on the interpretation of the evidence in the record were allowed.   

Mayor Drake noted that regarding site visits, all the Councilors were familiar with this intersection.
Mayor Drake asked if any Councilors had received ex parte contacts. 

Coun. Arnold said she attended the Traffic Commission hearing.    

Coun. Stanton said she attended a Town Hall meeting at the Library that Traffic Commissioner Ramona Crocker also attended.  She said she and Crocker discussed this issue; Crocker told her how she voted and why.    

Mayor Drake asked if any Councilor felt they had a bias and could not be objective about voting on the traffic signal at this intersection.   

No one declared any bias.

Mayor Drake asked if any member in the audience objected to any Councilor or the Mayor participating on this issue, with the understanding that the Mayor would only vote in the event of a tie. 

No one declared any objections.

APPELLANT:

Doug Heatherington, Beaverton, said he appealed the Traffic Commission's decision because he did not believe the decision to install the signal was supported by facts.  He said the fact that the traffic at the intersection met the traffic signal warrants was a reason to consider installing a signal; it was not the basis for making a decision.  He said funding availability provides the option to install a signal, it should not be the reason a decision is made to install one.  He said the statement that the signal would provide safety and more predictable movement, would suggest that the intersection was not safe.  He said that was not the case.  He said in the last six years of data provided by the Traffic Engineer, there was one accident at the intersection that may have been prevented by a traffic signal.  He said he did not hear any evidence of close calls or that pedestrians had been struck or injured at the intersection.  He said safety would be adversely affected by the signal; for Wooley had indicated that a signal could increase rear-end accidents. 

Heatherington said information on the City's Web page indicated that injury accidents were mostly likely to occur at signaled intersections.  He said that the driveway for one property owner would be adversely affected by the signal and he did not believe there would be adequate coordination between the lights at 125th Avenue and Sorrento Road.  He said the signal would increase the wait time at this intersection and since he uses this intersection a great deal he did not want to have to stop unnecessarily.  He said he did not see a logical justification for spending $225,000.  He concluded that pollution was a global issue and stopping the cars at the intersection would create more pollution.   

Coun. Bode thanked Heatherington for his letter and his honesty.  She said she often used that intersection.  She asked what could change his mind and if there was any benefit to the signal.  She noted traffic was continuing to increase and the 125th Avenue Extension would not be constructed soon.  She said she heard his issue but she wondered if there was another way to manage the increased traffic.
Heatherington said the reason there was a lot of traffic on these side streets was because Beaverton did not have enough through streets.  He said Brockman was a through street and putting in lights at all the intersections on the through streets would impede traffic flow. 

Mayor Drake said he and his son often ride bikes in that area.  He said early in the year last fall they were at the Sorrento Road/Brockman Street intersection and they had waited eight to ten minutes to cross.  He said it scared him to think of his son on his own trying to cross that intersection where traffic was going faster than 35 mph.  He said a signal would help people cross and would help visibility. 

Heatherington said in terms of pedestrian safety, people do not like to go the extra block to 125th Avenue but that was available.  He said there were probably concerns with each intersection on Brockman Street all the way up to Hiteon Drive.  He said it was much more dangerous by Hiteon School.  He said it was a balancing act.    

Coun. Stanton asked the location of Hiteon Drive. 

Heatherington said Hiteon Drive was off of Davies Road, between Scholls Ferry and Brockman Streets.

Jodi Heatherington said she was a cautious driver and she did not have trouble using that intersection.  She said she attended the Commission hearing and did not agree with what Wooley had said.  She said when asked about the number of left and right turns at the intersection, Wooley had responded he was not sure but he thought it was 50-50.  She said many more drivers turn right at that intersection, not left.  She said most of the people at the hearing wanted a signal that would only operate when needed.  She said Wooley said that was not recommended as it would be confusing.  She said she did not think it would be confusing for there were signals at schools and fire stations that only operate when needed.  She said it was more confusing to have a signal showing a red light when there were no vehicles in sight.  She said she did not believe anyone at the Commission hearing testified that they wanted the signal there all the time.  She said if traffic was stopped at Brockman, the traffic heading north on 125th Avenue would come onto Brockman and that would interfere with traffic going south on Sorrento Road.  She said when Wooley responded that the lights would be co-ordinated she did not think he understood the question being asked.  She said as she listened at the hearing she did not think people understood what each other was saying.

Coun. Doyle said that according to the Commission minutes, when asked about the frequency of left and right turns, Wooley said "the southbound Sorrento traffic has about a 50-50 morning peak hour split."  He said Wooley was referring to peak hour traffic and he assumed there was some fact to that. 

Heatherington said that was the route they use to go to downtown Beaverton. 

Scott Knees, Beaverton, said his testimony would include his personal opinion and his view point as a Traffic Commissioner.  He said he was recommending that the Council deny the appeal.  He said the Traffic Commission waited patiently for ten years for the 125th Avenue Extension to solve these issues.  He said the Commission decided it could no longer wait for the Extension because it was not eminent.  He said it was his opinion that in order to have orderly and predictable traffic movement at this intersection, a turn signal was required.  He said this was pertinent because of the proximity to the high school.  He said in the morning peak hours there were many inexperienced teenage drivers going through this intersection and clearly indicating who has the right-of-way was an important safety concern for the City.  He said the Commission was always confident of the Traffic Engineer's expertise in designing intersections and signals to cover all of the nuances of the site.  He said that was mentioned during the Commission's deliberation and it complemented Wooley’s comment that until the Commission decided to install a signal, staff would not spend a great deal of time figuring out the design to coordinate the signals.

Knees said the Commission would rely on the traffic engineers to make the signal function correctly.  He said he did not think a part-time traffic light was a good idea and he had no idea how it would function.  He said when he sees a traffic light with no lights he would assume it was a power failure and it should act as a four-way stop.  He said he was not certain that those who testified had a specific configuration of how such a light would work and one person suggested turning the signal off.  He said he wanted to be sure the City would not do that.  He said the Erickson Avenue and Cedar Hills Boulevard intersections (two T-intersections) were similarly configured and they would be used as a model for this intersection.  He said based on these reasons he would recommend Council deny the appeal.

Mayor Drake noted there was less queuing space between Cedar Hills Boulevard and Ericson Avenue, than there would be at this intersection.   

Krystal Pease, Beaverton, said she was representing herself and the South Beaverton NAC.  She said from her personal perspective she had two teenagers who attend Southridge High School and who have friends who live on the other side of Brockman Street.  She said they used Sorrento frequently and on a daily basis she sees kids running across that street as fast as they can to avoid getting hit.  She said she had witnessed near misses at that intersection at lease once a week for the last year and that worried her.  She said she felt something needed to be done at that corner for the risk was backed up traffic.  She said on 130th Avenue traffic backed up almost to the high school during morning peak hours.  She said if traffic on Brockman Street backed up to 130th or 135th Avenues, the traffic backup down the side streets would be more intense, so it would very important that the signal lights be timed properly. 

Pease, said the South Beaverton NAC discussed this issue and everyone who attended the meeting was in favor of the light to different degrees.  She said the most important concern for everyone at the meeting was that the light be actuated and Wooley assured them that it would be an actuated light; and it would have a pause before actuation, so that drivers turning off of Sorrento Road would have the opportunity to turn without actuating a light onto Brockman Street.  She said Wooley explained that a flashing light was not used by the City because the City had found those to be ineffective.  She said as a group they agreed to support adding the signal as long as the light was actuated and would only be turned on if there was a vehicle on Sorrento Road that had been waiting to make a turn.  She said the second issue was the safety factors of that intersection.  She said no one was aware of actual accidents at the intersection, everyone had seen near misses on a regular basis, both with vehicles and pedestrians crossing the street.  She said several people who have to cross Brockman Street to catch the bus, said they often missed their bus because it was so difficult to cross the road.  She said a crosswalk on that road would be helpful even if a signal was not installed.  She said this was why the NAC determined the actuated signal was most appropriate for this area and there was concern that the signal would have to be timed with the signal on 125th Avenue or there would be problems.  She said there was some concern that that could not be done but they were assured that City staff were experts with these mathematical equations and it could be done. 

Coun. Stanton noted that Pease's letter referred to a unanimous decision of the NAC.  She asked how many people attended the meeting. 

Pease responded there were ten members there and several people representing neighbors.

Mayor Drake asked if anyone else wished to testify.  There were none. 

REBUTTAL:

Heatherington said he would not rebut his wife’s statement.  He said there was concern with pedestrians and bicyclists crossing Brockman Street.  He said previously he was asked if there were any circumstances under which he thought a signal light would be appropriate.  He said he could imagine a light with a pedestrian button that would change the light from flashing yellow on Brockman Street and flashing red on Sorrento Road to allow a pedestrian to cross.  He said he didn’t think cars had a significant problem at that intersection.  He noted the City has experimented with using new flashing lights and he thought that was good.  He asked that more options be considered for the type of signal lights being used in the community. 

Mayor Drake asked the City Attorney for the Council's options. 

Rappleyea said the Council's options were to approve or deny the appeal, or send the issue back to the Traffic Commission with direction on how Council would like the Commission to proceed. 

Coun. Stanton asked if they could continue the hearing to receive information on how the signals would be queued.

Rappleyea explained this appeal was on the record and no new evidence could be submitted.  He said if the Council wanted new evidence, the issue would have to be remanded to the Traffic Commission. 

Mayor Drake said he thought the idea of a pedestrian-activated signal was interesting.  He asked if that was discussed by the Commission.    

Khasho replied that was not discussed at the hearing. 

Coun. Stanton said she remembered years ago that there was a light near Whitman School that was not activated by traffic but only by pedestrians.  She asked for assurance that a signal light at Brockman Street/Sorrento Road would be activated by either a pedestrian or a vehicle there for six seconds.

Khasho confirmed the signal would be fully actuated.   

There being no further testimony, Mayor Drake closed the public hearing.

Coun. Dalrymple said he was certain the City's engineers could accommodate the coordination of the intersections.  He said he would leave it up to the engineering staff to set the time limits and actuation on the signals.  He said he agreed with the comments regarding the proximity to the high school and that adds another safety concern for this intersection.  He said he would support the Traffic Commission's and NAC's recommendation.  He said the 125th Avenue Extension was not currently funded for construction and it was not known when that would happen.  He said because of that, the Extension was a moot point and not part of the decision process for this hearing.  He said this would also meet Council Goals 3 and 5. 

Coun. Dalrymple MOVED, SECONDED by Coun. Doyle, that Council deny the appeal and support the Traffic Commission's decision on Traffic Commission Issue No. TC 609, a Traffic Signal at SW Brockman Street and Sorrento Road, and instruct staff to prepare a final written order.    

Coun. Bode said she did not see any action being taken on the 125th Avenue Extension in the foreseeable future.  She said traffic would not ease off and having predictable traffic movements was important, especially with the schools in that area.  She said they could not count the accidents that were predicted but she saw this as a pro-active action for safety to protect drivers, pedestrians and bicyclists.  She said she was going to vote to deny the appeal.  She thanked the appellant for his thoughtfulness and for his willingness to pay for an appeal to bring this before the Council for a community conversation. 

Coun. Doyle said he supported the motion.  He said based on national standards and the Traffic Engineer's advise, this intersection had needed a signal for ten years.  He said this was a safety issue and he would not vote against safety.  He agreed with Coun. Bode that this was a pro-active action.

Coun. Stanton said she would support the appellant.  She said she did not believe in crisis management and this was crisis management.  She said it had been 34 years since the 125th Avenue Extension was put on the plans and she could not support spending $225,000 as a temporary measure.  She said no one from the Sorrento neighborhood testified at this hearing; and only one person testified at the Commission hearing.  She said this signal was to allow people from outside the area access to Sorrento Road and Hart Road to reach Hall Boulevard.  She said four accidents in six years was not a big safety issue.  She said she would not support the motion because if people used Hall Boulevard to Greenway/Brockman Road, or used Murray Boulevard, then the Sorrento neighborhood would not be impacted.  She said she did not feel comfortable installing a signal in the middle of a neighborhood to make it easier for cut-through traffic. 

Coun. Arnold said she would not support the motion.  She said she would have liked to have seen information about how much it would cost to build the 125th Avenue Extension and what the trade-offs would be to get the Extension built.  She said she agreed with Coun. Stanton that "we keep doing band-aids because we do not know where we can go in the end."  She said she was concerned about safety.  She said if she knew the Extension would not be built in ten years, she would probably support this; if it was going to be built in five years, she would not support it.  She said the cost trade-off has not been clearly made.  She said she attended the Traffic Commission hearing and stayed through the testimony.  She said during the testimony she saw a great deal of ambivalence from everyone; she said the 4:3 decision was ambivalent.  She said that if the Extension was built, the signal would not be needed; and she did not favor spending $225,000 to build the project.  She said because of these reasons she would support the appellant. 

Mayor Drake said he did not vote but this was difficult.  He said the appellant made a good argument.  He said he utilizes that intersection a great deal and he does see a need for the signal for drivers and pedestrians.  He said he thought installing the signal was the right thing to do.  He explained that the Council had a work session over a year ago on the 125th Avenue Extension and the latest cost estimate, including sound walls, was $11 million, which was a lot of money.  He said when the Extension is constructed, the Traffic Commission could remove the signal.    

Question called on the motion.  AYES:  Coun. Bode, Dalrymple and Doyle.  NAYS:  Coun. Stanton and Arnold.  MOTION CARRIED.  (3:2)

Coun. Stanton said she would have brought this matter up for Council consideration; however, Heatherington filed his appeal first.  She said because of that she favored reimbursing Heatherington for the appeal fee.

Coun. Stanton MOVED, SECONDED by Coun. Bode, that Council reimburse Heatherington for the appeal fee.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)

Coun. Bode said this signal was not a band-aid.  She said they would continue to look for funding to construct the 125th Avenue Extension.  She said budget planning would begin in May and they would look at funding again.    

RECESS:

Mayor Drake called for a brief recess at 7:55 p.m. 

RECONVENED:

Mayor Drake reconvened the meeting at 8:05 p.m.

PUBLIC HEARINGS: BALLOT MEASURE 37 CLAIMS

Mayor Drake opened the public hearings.  He explained that the next three hearings involved Ballot Measure 37 (M37) Claims.  He noted that a request was received to continue the hearing on the Harmony Investment Claim to April 16 and Council would make a motion to do so.  He said staff would now read the rules of procedure for the Williams and Wiesmann M37 Claim Hearings.

Development Services Manager Steven Sparks read the rules of procedure defining the process to be followed for these hearings, including the various disclosure statements (in the record). 

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

No one declared a conflict of interest.

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

Coun. Arnold said she spoke with Larry Wiesmann, and his neighbor Paul and Paul's wife, during the break.  She said they asked her what Clean Water Services (CWS) was and she explained what she knew of CWS.  She said Wiesmann told her he'd been trying to develop this property. 

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

No one declared any site visits.

Sparks asked if any member of the audience wished to challenge the right of the Council or Mayor to consider these matters or challenge the right of any Councilor or the Mayor to participate in the hearings, or wish to request a continuance of either of the two hearings to a later date.

Valerie Vernon, Beaverton, noted that in the previous hearing the Mayor referred to a citizen in the audience "who was sitting behind Mr. Williams."  She asked Mayor Drake what his association was with Mr. Williams.    

Mayor Drake explained Mr. Williams had served on the City's Board of Design Review for several years.  He said he did not have a personal association with Williams.  He said he did not feel this would bias him in any manner.

Coun. Stanton said she also knew Williams from the Board of Design Review.  She said she has never spoken to Williams about this claim. 

07063  Williams Ballot Measure 37 Claim for Compensation M37 2006-0002

Sparks said that on the Williams M37 Claim, staff was recommending that the City deny the claim for compensation and waive the regulations.  He said Williams acquired the property on March 14, 1986.  He said at that time the property was zoned by the County as single-family R-6.  He said in the County, R-6 means six units to the acre, whereas the City's zoning is based on minimum square feet and in this case the City zone was R-7.  He said in 2005-2006 Williams submitted an application for a land use process and the Planning Commission denied the land use.  He said prior to staff preparing a final order for denial, Williams withdrew the application.  He said the Commission was denying the application with prejudice which meant Williams would not be able to submit an application for a year on this property.  He said withdrawing the application before the final order was acted upon, provided Williams the opportunity to submit another application.  He said another application was not submitted and instead the M37 Claim was filed. 

Sparks said that today the City received a letter from the Willow Heights Homeowners Association dated March 31, 2007 (copies were given to the Council).  He said that letter would be added to the staff report as Exhibit 5. 

Coun. Doyle asked Sparks if he had a chance to go through the concerns listed in the Willow Heights' letter. 

Sparks said he has not had the opportunity to review the letter.

Coun. Stanton said that Point 3. of the Willow Heights letter stated that Williams had jointly filed seven applications with Mr. Costuic.    

Sparks said Williams had submitted a number of applications over the time frame listed in the letter.  He said when Williams first submitted an application, the Code requirements for Trees and Significant Groves was being reviewed for amendment.  He said the Code that was in affect when Williams submitted his application had a substantial impact on the Williams property.  Williams had submitted a number of applications for land division, tree plans, etc.; he with withdrew the applications at least once.  He said Williams participated in the Code amendment process and once the Code was adopted and became effective, he resubmitted a slightly modified application. 

Coun. Stanton said it did not appear that this claim was dealing with the May 31, 2006 application.  She asked if the claim was for an earlier application.

Sparks said that was possible; however he would defer that question to Mr. Wyman.

Mayor Drake asked if this claim was dealing with what was in affect at the time that the Williams purchased the property versus the rules that are now in place. 

Sparks said M37 allows a property owner to go back in time.  He said regardless of current rules and regardless of what actions the City may or may not have taken, a property owner can elect to file a claim and request to have the clock wound back.  He said in this case, Williams did go through a land use application.  He said of the claims that have come to Council, this is the first that is supported by a land use action.   

Coun. Doyle referred to page 37 of the record (Attorney Wyman's letter) that stated that the City's Code may require an appraisal to support a M37 Claim but the measure itself does not.  He asked if it was correct that the City could not force submission of an appraisal.
Sparks said M37 states that the jurisdictions can establish any process they desire, but the claimant is under no obligation to follow any procedure that a local jurisdiction may establish.

Rappleyea said there has been no legal interpretation of that language.  He said most jurisdictions did not take that issue to court because of attorney fees.  He said all the claimant had to prove was a diminution of one dollar and then the claimant could receive a vast sum in attorney fees.  He said as long as there was some evidence of diminution of value; no one had been willing to push that point. 

Coun. Doyle noted that in the letter Wyman indicated a willingness to discuss the basis of the comps that they had submitted previously.  He asked if that discussion had occurred.

Sparks replied it had not.

Coun. Arnold asked if the evidence to prove diminution would state what the claimant thought the decreased value was.   

Rappleyea said that was correct.  He said this case was better than previous claims because there was an actual application that was denied.  He said this might enable them to develop some concrete evidence of diminution of value.  He repeated that all they would have to prove was diminution of one dollar and they would win the claim, get their attorney fees and set precedence. 

Coun. Arnold summarized that if a claimant said they were losing $6 million and the City denied the claim, then the court found that the loss was $50, the City would have to pay the $50 loss and all of the claimant's attorney fees.

Rappleyea said that was correct.

Sparks clarified that M37 gave property owners a two-year window to file a simple claim that stated what they believed was the decreased value of their property.  He said after December 4, 2006, the claim has to be linked to an enforcement of regulations on property so that there was a demonstration that diminution of value has occurred.  He said this claim was filed before December 4. 

CLAIMANT:

Ty K. Wyman, Dunn Carney Allen Higgins & Tongue, LLP, attorney representing Williams, Portland, said the information submitted to Council was complete.  He asked if Council had any questions for him.    

There were no questions from Council.

OPPOSITION:

Keith Shaud, Beaverton, submitted a testimony card that he was against the M37 Claim.  He did not wish to testify orally. 

Valerie Vernon, Beaverton, President Willow Heights Homeowners Association (HOA), said that Williams originally submitted a joint application with another gentleman to develop both properties.  She said Williams was never denied an application for his property alone.  She said this claim was for the Williams property only; not both properties.  She said in the staff report some of the technical issues of the claim were not in order and the claim was not complete.  She noted on page 7 of the staff report, it was stated that the claimant had not submitted any evidence that stated how the Development Code had reduced the value of his property.  She said the Willow Heights HOA was responsible for the tree preserve that backs up to the Williams property.  She said the HOA collects dues to maintain and insure the tree preserve.  She said the HOA was responsible for the preserve from a previous City decision.  She said they felt that by not denying the claim, the City would be turning its back on the HOA and those people who live next to the tree preserve.  She said the tree preserve was established to protect the trees on the Williams property.  She said by going back to the 1986 Code, Williams would be able to remove his trees and that would put the Willow Heights tree preserve in danger through the construction.  She said the HOA trees were 120 feet tall; the roots could be cut during construction and then could die.  The HOA would have to remove the trees and replant them at its own expense.  She said another reason for the previous denial was the Fire Code; one of properties could not be accessed by the fire engines.  She asked if the Fire Code would go back to 1986 also.

Rappleyea explained the Fire Code was excluded from M37 for that was a safety issue.

Vernon said she was disappointed when she read in the staff report that the City did not have money to settle the claim.  She said as a taxpayer she wanted the property protected and she did not want to waste money on a lawsuit.  She said they were waiting for a decision that would protect the best interests of everyone.  She said since there was no proof that the property was devalued, that would make the Council's decision easier. 

Coun. Stanton said the money issue was not for a lawsuit.  She said the Williams claim was for $962,000 and the City did not have that kind of money to give to individual property owners so that they do not develop their property.  She said that was the only money discussed in the staff report.

Vernon said she was proposing that the Council deny the claim because it was not complete and no evidence was submitted to prove the loss in value of the property.

Coun. Bode noted that the Williams were saying that if they do not get to develop their property as they wished, the loss would be almost $1 million.  She asked the City Attorney to review how they arrived at the $1 million figure.    

Rappleyea said the $1 million loss estimate was based on the reduction of lots that would be available for the subdivision.  He said the Council would not have to accept that; the City could do its own estimate and possibly arrive at a smaller figure.  He said the claimant would not have to accept that and they could then sue the City.  He said this was fraught with peril for the authors of M37 have stated publicly that the purpose of M37 was to waive land use regulations, not to pay for land use regulations.  He said while the City Code has procedures for M37 claims, M37 was very specific that property owners do not have to follow those procedures.  He said it was a difficult measure for all local governments. 

Mayor Drake said when 60% of the voters approved Measure 37; he thought it was the wrong way to vote.  He said he served on the state-wide steering committee opposing M37.  He said M37 was now the law and the City must interpret the law.  He said Washington County was one of the first counties to implement an ordinance and he felt the ordinance that was adopted was reasonable.   He said regardless of his personal opinion, the City has to uphold Williams' right to file a M37 claim.  He said he, the Council and staff were equally troubled by the claims that have come through.  He added the City had only a few claims in comparison to the claims filed at Washington County.  He said he did not fault Williams for he was within his right as a property owner; but he felt the law had gone too far and there should be some balance.  He said Vernon was asking the right questions and they were reasonable; however, the door was opened when voters approved M37.  He said until the Legislature puts a reasonable framework on the measure, interpretations are up in the air and the jurisdictions were wrestling as best as they could without adequate guidance.  He stressed that the framers of M37 set it up to be very vague to open the door wide in relation to property rights.  He said when anyone buys property; there is no guarantee that there will be no changes.  He said he heard her points and frustration but he was trying to explain the box that local jurisdictions have been placed in with little room to work because of cost.    

Coun. Arnold added that M37 protects what people can do on their own property but it does not protect the surrounding property owners.  She said that was the bias of the M37; it was deliberately designed as such.  She reiterated it was approved by the voters and now it was the law.    

Coun. Doyle said this was the first clear demonstration in the community of the complete unfairness of M37. He said it does not take into account the surrounding neighborhoods that were developed at a certain standard set by Code.  He said this clearly demonstrates the major flaw of M37.  He said this was his huge frustration with this law.  He said it does not give the City a chance to work for reasonable development.

Coun. Bode thanked Vernon for coming.

Barbara Rose, Beaverton, said she felt discouraged and abandoned.  She said the original applications submitted by Williams and his partner would have built foundations and graded within five feet of the tree preserve; that would tear out the roots of the trees.  She said she felt angry and asked where the neighbors' rights would be considered.  She said she was hearing that there was an override and it was going back to the issue of money and who has it. 

Coun. Bode said it was not about money.  She said M37 superseded a HOA; it gave the property owner rights to do as he wishes on his property.  She said M37 was state-wide.    

Rose asked about the rights of the surrounding property owners who will be infringed upon should all the restrictions be lifted.    

Coun. Bode said that was why this was a nasty argument.  She said there was not a lot of community in a M37 Claim.

Coun. Stanton asked Rose if she would be willing to pay an extra tax assessment of $0.50/$1000 of assessed evaluation to create a pool to payoff M37 Claims rather than waive the regulations.  She said it would come down to this. 

Rose said she knows the Williams and she hoped he would seriously think about how close he encroaches on their development. 

Coun. Bode noted the HOA could speak with Williams in a neighbor-to-neighbor association.  She thanked Rose for her comments.

REBUTTAL:

Wyman said as he watched these hearings, he wished they could bring the Legislature to watch the struggle.  He agreed this was a difficult process.  He said this was the law.  He said they submitted what the law required them to submit and whether or not it was complete would have to be decided by the Legislature or the Oregon Supreme Court.  He reminded everyone that this was part of the process, not the conclusion.  He noted a preliminary plat would have to be proposed and it would go through the public hearing process. 

Mayor Drake closed the public hearing.

Coun. Stanton MOVED, SECONDED by Coun. Bode, that the Council deny the claim for compensation and grant the limited waiver of the Development Code as identified in the staff report for Agenda Bill 07063, Williams Ballot Measure 37 Claim for Compensation M37 2006-0002.

Coun. Stanton said she also felt discouraged and abandoned with mandates from Metro and the State.  She said she had to uphold the laws and that required denial of the claim and granting the limited waiver of the Development Code.  She said the only hope she could offer was that in a development application the conditions of approval and site requirements do not change; the Code has to be maintained. 

Sparks said he wanted to clarify that a development proposal would need to be reviewed by the City and the City's existing process would apply.  He said a land division application would be necessary to subdivide the property.  He said the site development requirements have been waived back to the 1986 requirements.  He said the current public safety standards would still apply.  He noted Wyman had said he presumed a public hearing would be required.  He said the City did not know what type of process would occur until the development proposal was submitted.  He said it would be a public process, whether it was a Type 2 where people are notified and can submit written testimony or a public hearing where written and oral testimony would be accepted.    

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

07064  Harmony Investments Ballot Measure 37 Claim for Compensation M37 2006-0003  Rescheduled to 4/16. 

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that Agenda Bill 07064, Harmony Investments Measure 37 Claim M37 2006-0003 Public Hearing be continued to April 16, 2007.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)

07065  Wiesmann Ballot Measure 37 Claim for Compensation M37 2006-0012

Mayor Drake said staff had read the public hearing rules of procedure and called for disclosure statements for both M37 Claims earlier in the evening.  He confirmed with the City Attorney that it was not necessary to repeat the process.

Sparks reviewed the staff recommendation to deny the claim for compensation and not waive any provision of the Development Code.  He said the claims covered by M37 had a sunset clause of December 4, 2006.  He said Wiesmann filed his claim on December 5, 2006.  He said Wiesmann had not demonstrated how the City had enforced any regulation on the development of his property.  He said Wiesmann went through a pre-application conference but that was not a development proposal.  He said that was the basis for staff's recommendation.  He said the Wiesmann Claim covered Clean Water Services (CWS) buffer requirements along water courses.  He said in a prior claim considered by Council, CWS was on record stating that its regulations implemented the Federal Clean Water Act; therefore, CWS regulations were exempt from M37.  He said staff had communicated with CWS and CWS agreed to indemnify the City in this matter.     

Sparks said there was one correction in the staff report; page 3, Section C, fifth line should read "…public, including the prevention of pollution of the waters of the Tualatin River Basin.” 

Mayor Drake opened the public hearing.

CLAIMANT:

Larry Wiesmann, Beaverton, said the City zoned this property R-1 and his goal was to put in seven row houses.  He said there was sufficient room for seven units, provided he could use most of the property.  He said CWS wanted a 50-foot setback from the creek which was about 7500 square feet.  He said that would impinge on the depth of the units he wanted to build.  He said he did not want the City to have to pay the $560,000.  He said he valued the lots at $70,000 each, plus the expenses already incurred on this project.  He said from a civilian standpoint, he thought the City employed CWS to handle surface water.  He said he knew the City felt that it could not infringe on CWS, however this was a City regulation not a CWS regulation.  He asked what State statute covered CWS and its jurisdiction.

Rappleyea explained that CWS fulfills the obligations of the Federal Clean Water Act.  He said the City has an agreement with CWS under regulations enacted by CWS.  He said the regulations were enacted by CWS and it has independent enforcement authority.  He said the City enforces the regulations as a matter of convenience for if the City did not enforce the regulations CWS could independently enforce them under the State statutes governing special districts. 

Wiesmann asked if the City gave CWS the overall control for surface water.

Rappleyea said that was correct.  The City had agreements with CWS to fulfill the responsibilities of the Clean Water Act and Metro requirements for Title IV. 

Wiesmann asked if the agreements contained provisions for exceptions.

Rappleyea said it would be more appropriate to have this conversation once the City has received an application.  He said an exception might be possible.  He added in the past CWS had tried to make development applications work for applicants; particularly for impacts in the buffer zone or in dealing with impervious surfaces.

Mayor Drake summarized that Wiesmann missed the December 4, 2006, general filing deadline for M37 claims.  He said any claim filed from December 5 on required a specific application.  He said this appeared to be a late filing to obtain a blanket answer for a general claim.  He said if Wiesmann was to submit an application, he might be able to work with CWS to develop the property as he planned (or close to what he planned), without having to do a M37 claim. 

Rappleyea said that a development application was needed in order to have a firm understanding of the regulations applied to the property and to file a M37 Claim.  He reiterated this was complicated because CWS implements Federal regulations that are not covered by M37.  He said in the past CWS had been reasonable in considering exceptions to the process to allow development to occur.

Wiesmann said he thought obtaining an exception would be of mutual benefit and he would guarantee there would be no water contamination from the development.

Mayor Drake said Sparks and Brentano could work with Wiesmann on any reasonable development application.  He said if Wiesmann later decided to file a M37 Claim, that would be his business.  He said staff would be happy to help him.

Coun. Arnold clarified that this claim was filed after the deadline for general claims.  She asked if the City had any jurisdiction to state that it did not agree with CWS. 

Rappleyea said the City had an intergovernmental agreement with CWS and if the City were to take such a position with CWS it could come up for legal challenge.  He said the City had to be careful how it worked with its partners.   

Coun. Bode asked where the Council was in the current process for this hearing. 

Mayor Drake said it appeared that Wiesmann understood the City's position and that staff would continue to work with him if he wished to proceed. 
Paul Renslow, Beaverton, said he was interested in listening to both M37 claims; he made general comments regarding M37 that did not pertain to this hearing.

There was no further testimony and no rebuttal by the claimant.

Mayor Drake closed the public hearing. 

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that Council deny the Wiesmann Ballot Measure 37 Claim for Compensation M37 2006-0012, Agenda Bill 07065, and not waive any provision of the Development Code as identified in the attached staff report that was modified by staff at this hearing to include an additional reason for denial which was that the Code provisions cover CWS regulations that implement Federal regulations and, therefore, the City does not have the authority to waive those regulations.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)  

ORDINANCES:

Second Reading:

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

07059 An Ordinance Granting a Non-Exclusive Cable Franchise to Verizon Northwest Inc. (Ordinance No. 4433)           

Coun. Doyle MOVED, SECONDED by Coun. Arnold, that the ordinance embodied in
Agenda Bill 07059, now pass.  Roll call vote.  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  9:30 p.m.

APPROVAL:

Approved this 16th day of April, 2007.

__________________________________
Rob Drake, Mayor