BEAVERTON CITY COUNCIL
REGULAR MEETING
FEBRUARY 12, 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, February 12, 2007, at 6:32 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, Assist. City Attorney Bill Kirby, Chief of Staff Linda Adlard, Finance Director Patrick O'Claire, Community Development Director Joe Grillo, Public Works Director Gary Brentano, Library Director Ed House, Human Resources Director Nancy Bates, Police Chief David Bishop, Development Services Manager Steven Sparks, Planner Liz Jones and Deputy City Recorder Catherine Jansen.

PRESENTATIONS:

07026  Annual Report of the Beaverton City Library Board

Library Board Chair Dot Lutkins, Co-Chair Anne Doyle and Library Director Ed House presented a PowerPoint presentation on the 2006 Annual Report from the Library Board. 

Ms. Doyle explained how the Library served as the heart of the community and reviewed statistics for 2006, noting circulation reached 1,700,000 items and there were 600,000 visitors to the Library.  She explained how circulation contributes to Library funding.  She said in 2006 volunteers contributed 13,840 hours valued at $249,835.  She said the Self-Check machines and Patron Pickup of Holds had freed staff to provide other needed services.

House reviewed how revenue from the Washington County Cooperative Library Services (WCCLS) levy was distributed.  He said WCCLS would receive $15,379,011 from the levy in Fiscal Year 2007-08; the Beaverton City Library would receive $3,754,193 of that revenue.  He said that 80% of the revenue comes from circulation, 10% from door count, 5% from reference transactions and 5% from internet public access.    

Ms. Doyle reviewed the Library's programs and services in detail.  She stressed children needed to have good reading skills in order to develop into successful adults.   

House explained that Hennen's American Public Library Rating System rates libraries across the country on their services.  He said Hennen's ranked Beaverton No. 1 among Oregon Public Libraries that serve a population of 100,000 to 249,999; No. 1 among all of the WCCLS libraries; and No. 5 in the Top 10 of all Oregon Libraries.  He said these ratings were based on data collected in Fiscal Year 2004-05.    

Lutkins said in 2006 the Library Board developed an Advisory Board Handbook for  new board members.  She reviewed the Handbook's table of contents, Chapter 4 on Intellectual Freedom, and the Library Bill of Rights.    

Ms. Doyle said that with the passage of the WCCLS levy, Library hours were restored, the book budget was increased and programs were restored or enhanced.  She said the Library needed additional room for its collections, especially the multi-lingual and large-print collections.  She spoke on the vital role that the Library plays in the community.     

Coun. Stanton confirmed with House that the Library receives $1.50 for each item checked out at the Library from the WCCLS levy.  She encouraged citizens to checkout more items from the Library, for that increases the funding the Library receives.   

Coun. Bode thanked them for the presentation.  She said presenting this report at the Council meeting keeps the community connected to the City and Library.  She said it was good when citizens report to other citizens. 

Coun. Doyle noted that in September 2007 four hours would be added to the number of hours the Library would be open.  He asked how close that would bring the Library to restoring the open hours it had a few years ago when services had to be cut. 

House replied that the Library was open 61 hours when the cutbacks occurred after the failure of the May 2004 levy; the Library cutback its hours to 49.  He said with the nine hours added in January 2007 the Library was now open 58 hours; and with the addition of four hours in September 2007, the Library would be open 62 hours.

Coun. Stanton explained that people could donate their used books, videos, CDs, and books on tape to their local library.  She said in Beaverton the donations were used to supplement the Library's collection and the overflow goes to the Friends of the Library's used bookstore.  She said the donations should be current and in good condition.    

VISITOR COMMENT PERIOD:

Mayor Drake said public comment was not included on the first reading of the ordinance relating to the use and possession of replica firearms in a public place (Agenda Bill 07025) for the hearing on that issue was closed.  He said general comment would be taken now if anyone wished to speak.  No one came forward to speak.

Kathryn Harrington, Metro Councilor, said she was honored to be Beaverton's Metro Councilor and was looking forward to working with Council.  She said she was here in the spirit of collaboration and she would report quarterly to the Council on Metro activities.  As a Beaverton resident, she thanked the Mayor and Council for their leadership and work to meet the needs of the community.  

Ms. Harrington said she was interested in receiving Council input on how Metro could help the City in the areas of economic vitality and quality of life.  She said on March 8, 2007, at 2:00 p.m., the Metro Council would meet in Sherwood and on March 15 the Council would meet in the morning at the Metro Office.    

Coun. Stanton said on February 13 there would be a joint meeting between the Joint Policy Advisory Committee on Transportation (JPACT) and the Metro Council on the Metropolitan Transportation Improvement Program (MTIP) which provides flexible funds for transportation improvements throughout the region.  She asked Harrington if the State and Federal transportation funds that come into the region were divided evenly among the three counties. 

Harrington replied there was no strict formula for geographic parity in that distribution. 

Coun. Stanton said that meant Washington County could get less funding than Multnomah or Clackamas Counties.  She urged citizens to go to the meeting to testify that funds were needed in Washington County for transportation projects. 

Harrington said the hearing would start at 5:30 p.m. in the Metro Offices.  She said citizens could also provide input over the Web and by e-mail.

Brian Wegener, Tualatin Riverkeepers, thanked the City for its help in reprinting the Riverkeepers' brochure Field Guide to Erosion Prevention and Sediment Control: Construction Sites.  He thanked Council for supporting habitat-friendly development and said low-impact development was part of habitat-friendly development.  He said the Riverkeepers were conducting a bus tour of low-impact development projects in Washington County on February 22, from 8:00 a.m. to noon.  He invited Council to attend and said they would meet at the Tualatin Hills Nature Park on Millikan Boulevard.  He distributed copies of the book Field Guide: Discovering the Tualatin River Basin to Council.  He said the book was put together with 10,000 hours of volunteer labor and contributions from professional wildlife photographers.  He said the book had excellent pictures of the resources that were protected through habitat-friendly development. 

07034  APP 2006-0005 - Appeal of TA 2006-0007 (Code Applicability for Annexed Areas Amendment) - This item was heard at this time.

Steve Kaufman, Beaverton, said he was pleased to see that TA 2006-0007, which he had appealed, was withdrawn. He said many stakeholders were concerned about the development of the Barnes/Cedar Hill property, including the City, County, the Peterkorts and residents of Cedar Mill and Beaverton.  He said the residents wished to be part of a constructive process to develop a project in which everyone wins.  He said Measure 37 (M37) had raised questions on development of the site.  He asked that the City be a leader/facilitator in getting all the stakeholders together to discuss the future of this site.    

Paul Parker, Portland, said this conversation was important and it should happen sooner rather than later.  He said they would be happy to prepare a one-page proposal to get the process started.  He said they were excited about "going from what cannot happen to what could happen."

Mayor Drake explained that the developer filed several M37 claims for properties in that area.  He said it might be difficult to assemble such a discussion but they could try and the potential for talking with the property owners was good.  He said without a full understanding of M37 and the developer's claims, it was difficult.  He said the Legislature was also looking at a potential time-out for M37.  He said currently much was unknown and the target keeps moving, so the circumstances were different than they were three years ago. 

Kaufman said they recognized the uncertainty that currently exists, but at some point discussion was always helpful, especially when planning something this important.  He said they would look to the City to help facilitate that dialogue.

Mayor Drake said he would take this under advisement.

Coun. Stanton said that though this text amendment was pulled, it might come back to Council in smaller individual pieces.  She suggested that they be vigilant and pay attention. 

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that the Council direct staff to refund the appeal fee for APP 2006-0005, paid by the appellant, Save Cedar Mill, to appeal the Planning Commission's recommendation on proposed text amendment TA 2006-0007 (Code Applicability for Annexed Areas Amendment).  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5-0)

COUNCIL ITEMS:

Coun. Stanton said that on February 22, 2007, at the Westside Economic Alliance Breakfast Forum, Tom Brian would give the State of the County message.  She said at the Washington County Public Affairs Forum on February 19, there would be a presentation on a potential new Federal Cabinet, the National Department of Peace. 

STAFF ITEMS:

There were none.

CONSENT AGENDA:

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

Minutes of Special Meeting of October 23, 2006 and Regular Meeting of January 22, 2007

07003  A Resolution Adopting the City of Beaverton Habitat Friendly Development Practices Guidance Manual (Resolution No. 3885) (Carried over from meeting of 01/08/07)

07027  Liquor Licenses: New Outlet - Pacific Coast Wine Club

07028  Liquor License Renewals: Annual Renewals

07029  Traffic Commission Issue No. :
-TC 604:  Stop Signs on SW Palomino Place and SW Saddle Drive at Stallion Drive
-TC 607:  Revise Adopted Priorities for Consideration of New Traffic Signals
-TC 608:  Revise Stop Control at the Intersection of SW Stratus Street and Creekside Place
-TC 610:  Speed Limits on SW Koll Parkway and SW Greystone Court

Contract Review Board:

07030  Waiver from Sealed Bidding – Award Contract for Collection Agency Services From the State of Oregon Price Agreement #5250

07031  Waiver of Sealed Bidding - Authorization for Rental of Copy Machines from Various Price Agreements

Coun. Dalrymple clarified that on minutes of January 22, 2007, page 10, paragraph eight, he asked if automobiles were considered as opaque containers. 

Coun. Stanton referred to Agenda Bill 07029, TC 607 Revised Adopted Priorities for Consideration of New Traffic Signals.  She asked if approving this would support placing a traffic light in any particular location.   

Transportation Engineer Randy Wooley said this would cleanup the priority list and make it clear that the previous signals had been considered and were no longer on the list.  He said that left the Brockman/Sorrento Road signal up for consideration but it was not required that it be built.  He said approving TC 607 was necessary so the Brockman/Sorrento appeal could proceed.     

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

RECESS:

Mayor Drake called for a brief recess at 7:20 p.m. 

RECONVENED:

Mayor Drake reconvened the meeting at 7:32 p.m.

PUBLIC HEARING:

07032  APP 2007-0001 Appeal of Pointer Road PUD

Mayor Drake announced the public hearing for APP 2007-0001, the appeal of the Planning Commission's approval of the Conditional Use application for the proposed Pointer Road Planned Unit Development (PUD).

Community Development Director Joe Grillo read a prepared statement defining the process to be followed for this hearing, including the various required disclosure statements (in the record).
Grillo asked if any Councilor had a potential or actual conflict of interest. 

None were declared.

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

Coun. Bode said while on her way to view the property she got lost and she asked a couple of walkers for directions.  She said they wanted to give her information on the project, but she explained she could not discuss it with them.  She said she did not know the ladies' names but they showed her where the property was.    

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

Couns. Arnold, Bode, Doyle and Stanton indicated they visited the site.

Grillo asked if any member of the audience wished to challenge the right of the Council to consider this matter or challenge the right of any Councilor 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.

Development Services Manager Steven Sparks introduced himself and Liz Jones the City Planner for this project.  Sparks explained the Planning Commission approved two applications for this site; a Land Division application and a PUD.  He said the Land Division application was for eleven lots; the Planning Commission approved ten lots.  He said the PUD decision was appealed but the Land Division decision was not.  He said the Land Division approval and PUD were linked and the applicant could not proceed with the Land Division without the PUD.  He said if the Council modified or denied the PUD, a change would be required on the Land Division approval.  If the Council denied the appeal and supported the Planning Commission's decision, the Land Division could proceed as approved by the Commission.    

Sparks said this site was extensively reviewed by the City.  He said the applicant presented various proposals to the City over the past 18 months and overcame a number of issues, including access.  He said the Planning Commission felt eleven lots was too far out of character for the surrounding neighborhood in that some of the lots were less than 5,000 square feet.  He said with ten lots, all of the lots were over 5,000 square feet except one that was close to 5,000 square feet.  He said per the Code, the minimum density for this site was seven units (80%).  He said the proposed ten units were above the 80% minimum requirement but under the 100% maximum density.

Sparks said the Council had received a memorandum from the appellant, dated February 9, 2007, to which three letters were attached.  He said one of the letters, dated February 8, was from Alaina and Adelle Pomeroy, regarding several stormwater runoff issues.  He said a staff memorandum in response to the Pomeroy letter was distributed to Council earlier in the meeting.   It was noted that the memorandum should be dated February 12, 2007, rather than December 13, 2006.

Sparks said in their letter, the Pomeroy's expressed concern that the City hoped to divert stormwater runoff from the PUD site to their property.  He stressed the City was not proposing to divert any runoff onto anybody’s property.  He said the City stated in the Conditions of Approval, that the developer has options for connecting to existing stormwater facilities.  He said the developer needed to get an easement from a private property owner; if the developer could not obtain the easement, he would have to connect the PUD's stormwater facilities to the existing system in SW Canyon Lane.  He said the PUD site currently has no stormwater retention or routing; the water sheets off the site, creating major problems for surrounding properties.  He said the PUD project was required to handle the stormwater runoff it creates on this site.  He said this project could not fix all of the stormwater problems in the West Slope neighborhood, but it had to address its own stormwater issues.   He said there was a detention pond on the south end of the property that would assist in detaining flows during peak runoff; the water would slowly drain into the stormwater system after the peak of the storm.   

Coun. Arnold asked where the Pomeroy's property (2065 SW 75th Avenue) was located. 

Jones said the Pomeroy property was Tax Lot 4400 on the site plan. 

Coun. Arnold asked if any stormwater was being diverted anywhere from this PUD.    

Sparks said the intent of the condition was that all of the water from this property would funnel into the detention facility at the southern corner of the site.  He said the facility design would be handled during Site Development; in the land use process, they have enough detail to know that it is feasible.  He said the size of the detention pond could fluctuate, depending on the amount of impervious surface created by the development.  He said the City engineers believe that with this development the stormwater runoff situation would be better than the existing condition.   

Coun. Stanton noted staff had said water would not be diverted to the Pomeroy property.  She asked if there would be any discharge of stormwater from this development onto the Pomeroy property. 

Sparks replied that if easements could not be obtained from neighboring properties, the stormwater discharge would go to the existing stormwater line in SW Canyon Lane.  He said the site would drain to the detention pond; from the pond there would be a pipe down to the SW Canyon Lane line. 

Coun. Stanton reconfirmed with Sparks that there was no plan to divert or discharge stormwater runoff onto the Pomeroy property.  She asked if it was certain that there would be a stormwater drainage pipe from the site to the line in SW Canyon Lane if the easement could not be secured from adjacent property owners.  

Sparks replied Site Development would not be issued and the developer could not build unless that was done.  He said in development, utility infrastructure was done first; once that was in place the developer could do the final plat.  He said until the final plat was recorded, the lots could not be sold.

Coun. Stanton asked how the developer would get the pipe from the site down to SW Canyon Lane when Tax Lots 4500 and 4700 would have to be crossed.  She asked if easements would be required or would it run down the gravel road.

Sparks said the applicant should respond to that question.

Coun. Stanton asked theoretically if the developer would not be able to develop the site if he could not get easements from Tax Lots 4500 and 4700.

Sparks replied that was conceivable.

Coun. Bode asked staff to address the issue of pesticide and herbicide contamination that was raised in the Pomeroy letter.

Sparks said there was a long history of agricultural product being used on that site and neighbors have testified that discolored water runs off the site.  He said there was a Condition of Approval that prior to obtaining a Site Development Permit, a Level 2 Toxin Environmental Report would be required to test the soil on the site and determine if any soil needs to be remediated, removed or mitigated.  He said the intent was to prohibit any movement of soil that could make the toxins airborne.  He said if levels of soil toxicity were found, that would have to be treated or removed first, prior to any construction taking place.   

Coun. Doyle said that attached to the appellant's February 9, 2007, memorandum was a letter from the Tualatin Valley Fire & Rescue District (TVF&R) dated September 6, 2006, that listed several concerns.  He asked if those concerns were resolved.

Jones said a number of issues were resolved including the provision of an emergency turnaround.  She said the Conditions of Approval require that the developer obtain sign-off from TVF&R prior to Site Development Permit issuance.  She said many of TVF&R's concerns would be dealt with at that time. 

Sparks referred to the TVF&R letter and said the developer had either solved those issues or had demonstrated that they could be resolved.  He said they would not want to issue approval for anything that would fail at the construction stage; if they saw anything that could be a fatal flaw, it was addressed up front so there were no surprises later on.  He said TVF&R's issues, if not resolved in the Land Use process, would be resolved by the Site Development and Building Permit stage.

Coun. Dalrymple asked if there was anything about this application, other than the toxin report, that was out of the ordinary from any other Land Division or PUD application for the same type of development. 

Sparks said there was nothing out of ordinary. 

Jones said the only unusual element she found was the irregular shape of the site and that there was limited access on the north and south side.  She added that these same conditions exist on other sites in the city.

Coun. Dalrymple said that might have been unique 20 years ago, but not today because it was difficult to find property to develop at the density levels developers are required to meet.

Sparks said the closest similarity in terms of an oddly-shaped parcel, would be the Garden Grove PUD that Council considered a few years ago. 

Coun. Stanton asked if the garbage collectors would drive down Wilson Way, since it was a private street.  She said she knew of other places where the garbage collection was done from the main street and residents had to haul their cans to the main street. 

Sparks said they had not received a response from the waste hauler for that area.  He said he knew from past experience that the waste haulers would go down private streets that were narrower than this street.  He said this might also be a requirement of their franchise agreement.   He said these private streets were maintained by homeowners' associations.

Coun. Stanton said she was concerned that these property owners would assume that they have normal city services, which means garbage service at the curb. 

Coun. Stanton she was concerned about the turnaround at the southwest end of the street and TVF&R's requirement for two access points.  She said she was also concerned about the comment in the staff report about Wilson Way being extended west with future development.  She said she needed to know that there would be no deed restrictions or remonstrances for a Local Improvement District (LID), for these ten homes for construction of a road to connect to SW Canyon Lane.  She said she was concerned about the impact of this to the people who would live on that street.

Sparks said the question about future potential for right-of-way was speculative at this time.  He said it was not known if redevelopment would occur in that area or in what fashion it would occur.  He said it could be expanded in future development.  He said there were no conditions to require or prohibit a LID. 

Coun. Stanton asked if the City could prohibit or pre-empt deed restrictions or remonstrances. 

City Attorney Alan Rappleyea said the decision to form a LID and what properties to include in the assessment, were made when the LID was formed.  He said when a LID is planned for the future, a requirement can be made for a waiver or remonstrance.  He said currently the neighbors do not want this, so there was no condition for a waiver or remonstrance.  He said that would be a strange condition to include in a Land Use Order.  He said if this area redeveloped, the City could decide on the creation of a LID.    

Jones clarified that in the earlier versions of the application there were two access points and an emergency-only gate at the terminus of Wilson Way.  She said that was revised and currently there was only one access point into the development at SW Pointer Road.  She said with only one access there would be sprinklers in each unit.  She said that at the end of Wilson Way there would be a fence with bike and pedestrian access only; there would be no vehicular access onto the gravel lane connecting to SW Canyon Lane.   
  
Coun. Dalrymple referred to Coun. Stanton's comment regarding the extension of Wilson Way.  He asked if that would be a separate application that would go through the public process; and that no restrictions or conditions would be placed on it at this time. 

Sparks replied that was correct; any conditions would depend on the application submitted and the situation at the time.

Mayor Drake opened public hearing. 

APPLICANT:

Karl Mawson, Compass Engineering, representing the applicant, said this project was infill development; it was not developed previously because of the odd shape of the site.  He said the first plans had two access points, but because of problems with SW Canyon Lane and the narrow access lane, the southern access was eliminated.  He said due to the single access, the lack of a turnaround and because the slope between this site and the fire station was over ten percent, the applicant had agreed to installing sprinklers in the homes if required by TVF&R.  He said he pushed for a break-away gate but that was not acceptable to staff or TVF&R. 

Mawson said regarding the stormwater issue, this property was a non-conforming commercial use; most of it was greenhouses and pavement, and the gravel and dirt sections were so densely packed in that it was probably 90% impervious surface.  He said this development would greatly decrease the amount of impervious surface, it would have stormwater facilities and the overflow would go underground, under SW Canyon Lane and into the drainage facility downstream.  He said originally the PUD process was designed to develop typical land with creative housing.  He said the PUD had evolved over the years to develop non-typical land with standard housing.  He said in this case they have single-family homes on smaller lots, so the impact would be smaller.  He said the only way to develop this site was through the PUD.  He said if they tried to develop a standard subdivision, most of the property would go for the street and impervious surface and the lots would have jagged edges and be difficult to use.  He said with this application they have an open space facility that was visible to most of the units, there was a buffer from the existing houses, density requirements were met and this was less than maximum density.  He said they worked on this for over a year and given the site, restrictions and density, they believed they developed the best design possible. 

Ron Wilson, representing R. K. Wilson the developer, said the density on this project was in the middle; the minimum density was seven units and the maximum was 11.5.  He said the development has open space, a basketball court and a play structure.  He said they did their best to maximize the open space and the homeowners' association would take care of the facilities to prevent future deterioration.  He said he owned the property down to SW Canyon Lane so there was no issue with running the stormwater lines to that road.  He said he tried to obtain easements from the neighbors to run the stormwater runoff as the City wanted, but some of the neighbors would not grant the easements.  He said this development was an improvement over what currently exists on the site.  He said he tried to appease the neighbors and he had talked to many of them.  He said they were complimented at the Planning Commission hearing for design and creativity.  He asked that the Council support the Commission's decision.

Mawson said that there were multiple easements on this site, copies of which were in the staff report.  He said initially they thought they could purchase the easements, but the owners of the easements wanted to maintain the access to SW Canyon Lane.  He said they decided to develop a plan that would honor the easements and maintain the residents' access to SW Canyon Lane.   

Coun. Stanton asked Wilson if he had said that he owned the property south of the development.

Wilson replied he owned the strip of land that goes south and connects to SW Canyon Lane; that was the access for stormwater lines.

Coun. Dalrymple what the grade was from the point of the road and what were the contours. 

Mawson said the grade does not go over ten percent.  He said the ROW property at the intersection of SW Pointer Road was owned by the State.  He said through this process the ownership of the ROW was transferred to the City.  He said they have plans to landscape and maintain the property, so at some point the City might want to transfer ownership to the developer.    

Coun. Stanton asked if the proposed homes would be ranch-style, or two or three story. 

Wilson said preliminary plans show this development as two-story single-family homes, about 25 feet high. 

Mawson said the colored elevations were part of the record submitted for the Planning Commission hearing. 

Wilson said the Planning Commission instituted architectural guidelines that would have to be followed to ensure that the development would fit into the neighborhood.   

Coun. Arnold asked Wilson is he owned the 12-foot lane that goes to SW Canyon Lane, and if he would use it for stormwater access but not vehicular access. 

Wilson reconfirmed he owned that lane.  He said with the many layers of easements that were attached to that lane, and due to its narrow width, they could not service the subdivision.  He said that was why Wilson Way went out to SW Pointer Road. 

Mawson said that one issue raised at the Commission hearing and in the appeal, was  the use of the access lane to the west, which was a private street.  He said the concern was that people would want to use SW Canyon Lane, so they would go to SW Pointer Road, make a left and then a second left to use that private driveway.  He said they understood the problem and they were willing to pay for street bumps or a gate to prevent that; however, that road was off-site from this project and the owners would have to be in consensus as to what they want.  He said the applicant was willing to work with them. 

Coun. Stanton said she thought there would be a barrier at the end of Wilson Way that would block vehicular traffic. 

Mawson said that was right; the only way to access SW Canyon Lane was to go north to SW Pointer Road, turn west, then turn south (onto the private street).  He said it might be possible to extend that private street to SW 75th Avenue; however, SW 75th Avenue exists on an easement.  He said that no matter what direction they went on this project, there were barriers to development.

Mayor Drake said that staff wished to clarify a point about easements.

Sparks said regarding the stormwater drainage, he mentioned obtaining an easement or going down SW Canyon Lane.  He said that condition was for the sanitary sewer, not for the stormwater sewer.  He said the stormwater sewer would run to the south along with the sanitary sewer. 

Coun. Stanton asked if that meant that two sets of pipes would be laid out going south, one for stormwater and one for sanitary sewer, and the developer would do both. 

Sparks replied that was correct. 

APPELLANT:

Dan Cox, appellant, presented a slideshow on a laptop computer, that showed the access lane, easement and path that he referred to during his testimony (in the record).   He said he represented many people from the neighborhood who were in the audience.  He said they felt disenfranchised and disrespected; some felt that the project was being railroaded.  He said this project was a crushing change to the historic nature of the West Slope neighborhood.  He said there was almost a lack of good faith with the applicant and the City regarding informing or hearing the public on this matter.  He said the Planning Commissioners said that this was the toughest decision they have had to make in a long time, yet they made a decision that night rather than taking time to delve into issues raised at the meeting.  He said that was disrespectful and truncated the process.  He said a neighborhood meeting was required for the project, yet neighborhood residents were not notified of the meeting and were not certain that it took place. 

Cox said the Planning Commission hearing was repeatedly rescheduled, beginning in the fall, until it was held in the middle of December, during the holiday rush, when people had multiple obligations.  He said fewer people were able to attend each subsequent hearing.  He said that did not reflect the intent of the process to allow the public to be heard; it was a way to create an attrition effect on the public hearing process.  He said people were ruffled by that.

Cox said the Neighborhood Association Committee (NAC) submitted inquiries and received no response and that was not good.  He said compatibility issue was their biggest concern.  He said West Slope was a wonderful historic neighborhood, with large lots, mature trees and lots of space.  He said the proposed development did not match the rest of the neighborhood.  He said the Commission erred when it found that the application satisfied Code Section 40.15.15.C.5, for the site could not easily accommodate ten lots. 

Cox showed an aerial photograph with an overlay of the proposed development (in the record) and said this demonstrated how crowded the new lots were in relation to the surrounding neighborhood.  He said the adjoining properties were described in terms of acres, not feet; they were large lots and contrast strongly from what was proposed. 

Cox said the Planning Commission erred when it found the application satisfied Code Section 40.15.15.C.6 as the development was not reasonably compatible with the livability of the surrounding neighborhood, because it introduces many nuisances including light, noise, traffic and loss of privacy.  He said introducing two-story homes into a neighborhood dominated by single-story homes was a huge issue.  He said the Commission was correct when it said that the site grows more incompatible as the lot sizes decrease below 7,000 square feet.  He said nothing in the law entitled the applicant to ten lots.  He said compatibility could not be established by finding that increased infill in surrounding areas would occur in the future.  He said compatibility must be based on current existing conditions. 

Cox said another issue was fire and life safety.  He said the Commission erred when it adopted Condition of Approval No. 10, for it failed to adequately recognize the public safety risk associated with the easement access.  He said that posting signs and installing speed bumps was an ineffective and unenforceable remedy for a real safety problem.  He said with pedestrians, bicycles and cars there would be considerable congestion on that easement.  He said new residents would use that easement even if signs were posted, because it was a shortcut.  He said he previously submitted a letter from Todd Mobley, Transportation Engineer, Lancaster Engineering, in which Mobley said that: 1) this project would generate 100 automobile trips per day (per national standards);  2) the lane to the south was too narrow to allow two cars to pass;  3) site lines were restricted by on-street parking;  4) such access lanes were not intended for through traffic or for an area with a large number of homes; 5) it was possible that drivers would use this access as a shortcut to SW Canyon Lane, avoiding the circuitous route of SW Pointer Road to Camelot Court to SW Canyon Lane; 6) the speed bumps would reduce speed but do not limit traffic; and 7) signage alone was ineffective at influencing a driver's route.  He said Mobley recommended installing a resident-controlled gate south of SW Pointer Road as the most effective way to limit use and maintain safety on that easement. 

Cox said he submitted a letter from John Dalby, Deputy Fire Marshal, Tualatin Valley Fire & Rescue.  He said in a phone conversation last week, Dalby expressed concerns about the fire safety issues.  He said he appreciated the clarification provided by staff but the questions were still hanging in the air.  He said Dalby stated in his letter that TVF&R would not accept any type of break-away gate, that the access from SW Canyon Lane was too narrow, that the requirement for sprinklers had not yet been conditioned and that sprinklers were not helpful in non-fire emergency calls.  He concluded his testimony by reading from the Dalby letter "The fire district does not endorse the design concept wherein 20 feet of unobstructed roadway width is not provided."   

Coun. Dalrymple referred to Cox's comments that there was no official neighborhood meeting and then that there was a meeting but it was held in the holiday season which was an inopportune time for the neighborhood residents to attend.  He asked staff if there was anything in the record confirming there was an official neighborhood meeting.

Rappleyea stated that the neighborhood meeting was held and that was confirmed on page 140 of the staff report. 

Coun. Stanton said that this was discussed at the October 18, 2005, meeting of the West Slope NAC and those minutes were on page 220 of the record.  

Sparks explained that the notice of the neighborhood meeting was on page 203 of the record and it was sent to the NAC representative resident as standard process.  He said the meeting took place on October 18, 2005.   

Coun. Dalrymple asked Cox why he had said there was no meeting, and then that a meeting was held during the holiday season when it was difficult for people to attend. 

Cox clarified that they were unaware of any official neighborhood meeting and received no notices of the meeting.  He said that was an example of the lack of communication that surrounded this process.  He said the meeting he referred to that they attended during the holiday season was the Planning Commission hearing in December.   

Coun. Dalrymple asked for clarification on which meeting they felt they had not received notification; the Planning Commission meeting or the neighborhood meeting.

Cox said they did not know when the official neighborhood meeting was and the NAC Chair was also unclear on when that occurred. 

Coun. Dalrymple said these meetings were usually noticed and he wanted to be clear on whether or not that happened.

Community Development Director Joe Grillo referred to pages 207 to 210 which listed the individuals who were noticed for the neighborhood review meeting, who are the registered property owners in 2006.  He said the list represents the most current available records from the Washington County Department of Assessment and Taxation, and it was sent to those who live within 500 feet of the proposed development.    

Coun. Dalrymple asked Cox where his house was located. 

Cox said he did not live within 500 feet of the development.  He indicated on the map that he lived further south on SW Canyon Lane.

Mayor Drake noted that NAC Chair Sid Snyder was present and might be able to clarify some of the issues raised when he testified.

Coun. Stanton asked Cox if he was a member of West Slope NAC.

Cox said he was not a member though he had attended some meetings. 

Coun. Arnold confirmed that the residents' concern was that residents from the new development would turn left on SW Pointer Road and then left again on the easement access road to weave their way down to reach SW Canyon Lane.  She noted that that access currently exists and that she drove on that lane in her car.   

Cox confirmed that was correct and that lane currently was drivable and that would not change.  He said they feared the new residents would discover that shortcut and use it, which was a concern because of the number of children, pedestrians and bicyclists who use the path.  He said the combination of cars, pedestrians and bicyclists on this lane was not good and that issue had not been adequately addressed.

Coun. Arnold asked if there was currently an issue with cut-through traffic. 

Cox said he used that access daily and right now there was only limited use of the lane.  He said other people would testify directly to that issue. 

Coun. Arnold asked Cox to elaborate about the public safety risk.

Cox said the public safety risk was that automobile traffic from the new development would use the easement lane, creating congestion and putting children, pedestrians and bicyclists at risk.  He said the site lines were very limited and some driveways run directly into the lane.  He said this safety issue needed to be addressed and required more than speed bumps and Private Drive-Do Not Enter signage. 

Coun. Doyle asked if the Traffic Engineer's recommendation was to put a gate at the north end of SW Pointer Road, at the easement lane. 

Cox replied that was correct. 

There were no further questions for the appellant.

RECESS:

Mayor Drake called for a brief recess at 8:52 p.m. 

RECONVENED:

Mayor Drake reconvened the meeting at 9:04 p.m.

AUTHORIZED GROUPS:

Sid Snyder, Chair West Slope NAC, said the NAC's official action was to oppose Planning Commission Order 1933, approving the Pointer Road PUD.  He said the opposition was based on the belief that the PUD violates the condition that the new homes within the development be compatible with the age and amount of architectural detail found in the surrounding area and the conditions of approval do not adequately recognize the public safety risk associated with the existing access easement.  He said ten homes on that site were too many.  He said the motion was voted on by seven of the ten NAC Board Members (5 Ayes; 0 Opposed; 2 Abstentions) at an ad-hoc meeting of the Board held electronically, as allowed by the NAC Bylaws.

Coun. Stanton asked how many of seven Board Members who voted attended the  neighborhood meeting in October.

Snyder replied that most of them attended.  He said In terms of October 18, 2005, NAC meeting, a developer first comes to a NAC unofficially to talk about ideas and concepts they were considering.  He said they would later come to an official NAC meeting to present a project; this meeting would be noticed.  He said it was his understanding that the October 18 meeting was the unofficial meeting and that was what he told the appellant.  He said one of the reasons he thought it was the unofficial meeting was because of the way it was presented to him when they asked for a meeting.  He said the developer said they had a couple of ideas in mind that they wanted to get feedback from the residents.  He said he did not recall getting a notice, but he was not sure he lived within 500 feet of the site.  He said several people who live within the 500 feet say they did not recall receiving a notice.    

Coun. Dalrymple asked if the NAC Chair receives official notice. 

Sparks replied per the Code, the NAC Chair, the Community Development Director and property owners within 500 feet of the subject site were supposed to be notified.

Snyder said he did not recall seeing the notice.    

Coun. Doyle asked how many people come to normal NAC meetings.

Snyder said it varied depending on the agenda, but the meetings were relatively well attended.  He said at the October 18  meeting the room was jammed and there was spirited discussion.

SUPPORT:

Kent Slack, Beaverton, said he lived on SW Pointer Road and he owned the easement lane that people were concerned would be used as a cut-through.  He said he would like to see the biggest deterrent possible to prevent people from coming down that easement.  He said the greenhouse was an offensive, scary eyesore and he did not want it there anymore.  He said if this was protracted for much longer it could be years before that building was removed.  He said he knew the UGB required development of that site and that large lots were not typical.  He said he accepted the new development because he was motivated to get rid of the greenhouse.

Coun. Stanton said there was discussion at the Planning Commission about installing a gate on that lane.

Slack replied he was the impetus for that suggestion.  He said he accepted the speed bumps and signage suggestion but he would love a remote control gate.

Coun. Doyle asked Slack if he explored the feasibility of a gate and if there currently was no problem with having cars drive down the lane. 

Slack said there were few people who use it, but the new residents on Wilson Way would probably take this shortcut.  He said currently only a handful of people used the lane regularly. 

Coun. Arnold asked Slack the route he uses to go east. 
Slack said used SW Pointer Road to SW Camelot Court to the highway.  He said coming to City Hall tonight he went the back way.  He said only a handful had easements to use that back route and they would still be able to do that with the development.

Coun. Arnold asked how long it took to get to SW Canyon Road going east on his usual route. 

Slack said it would probably take an extra minute to use the regular route.

Coun. Arnold said she had been on that back route and it was circuitous and difficult.  She said she did not think she would use that back route if it would only take a minute to use the safer route.   

Carla Ralston, Portland, said she thought everyone was in favor of development because the site was a nightmare; however, they would like to see fewer lots.  She said at the NAC meeting they were shown several pictures, however, this was the first time they had seen this proposal.  She said at the meeting they were told by the developer that he would come back and show them the final version, which is why there is confusion about the neighborhood meeting; they were never shown the final proposal.  She said PUD Code Sections 60.35.05(2 through 6) state that a PUD creates a comprehensive development plan that was equal to or better than that resulting from traditional lot-by-lot land development and that it uses design flexibility afforded by the PUD provisions to improve compatibility of the development with surrounding property and uses.  She said the proposed development did not speak to the spirit of the PUD.  She said she would like to see a development closer to what currently exists in the area.  She asked that the spirit and standards of the PUD be applied more closely.  She concluded that the lots were too small, there were too many and the homes planned were opulent and not compatible with the existing neighborhood. 

Coun. Stanton explained that the City was constrained by Metro's development requirements and the site has to be built at 80 to 100 percent density.  She said one of the values to a PUD, because of topography and wetland constraints, was that you could see how much you could build on the whole site, even the unbuildable area.  She said that was what drove these numbers. 

Carl Tebbe, Portland, said he lived at the end of SW Pointer Road, where SW 75th Avenue ends.  He said the property owners on SW 75th Avenue own that street.  He reviewed the location of the bike path and said it was heavily used.  He said higher density in that area would result in increased vehicular and bicycle traffic, and more parking on the street, especially if a gate was placed on that road. He asked how a fire engine would reach his home with the increased traffic, parking on the street and only a single hydrant that serves SW Pointer Road.  He said any infill development has to be kept at a minimum.  He said that at least once a month the children and teachers from the elementary school walk from their school, up SW Pointer Road, to their second campus.  He said with the new development and increased traffic, they would not be able to do that.  He said regarding the NAC neighborhood meeting, the notice he received said this would be a preliminary informational meeting; the notice did not indicate that this was the final project presentation.  He said he was not opposed to development but ten units was too many; it should be kept to seven or eight. 

Coun. Stanton clarified for Tebbe that the gate would not be on Wilson Way; it would be on the access road to the west, off of SW Pointer Road.

Coun. Doyle asked if currently there was parking on that road.

Tebbe said was no room for parking, though people do.  He said the road was not posted for "No Parking." 

Andrew Shelton, said he was acting as a proxy for Adelle Pomeroy, Portland, and read her statement into record.  Pomeroy opposed having ten homes on that site.  She said she feared for the safety of her two younger brothers, herself and other pedestrians.  She said the roads were narrow and surrounded by mature foliage.  She said the safety of the inhabitants of the area should be the highest priority. 

Cyrus Pomeroy, Portland, said he was speaking for himself and other children in the neighborhood.  He said they were concerned about traffic on the easement driveway.  He said he had nearly been hit on that driveway by cars and bicyclists.  He said ten houses were too many and he was nervous about this development for safety reasons. 

Maria Pomeroy, Portland, said her property was adjacent to the greenhouse property and her major concern was public safety.  She said the easement driveway that empties onto SW Canyon Lane was very narrow with low visibility; and encouraging bicyclists and pedestrians to use this easement lane was negligent at best.  She said she hit a pedestrian once and it was terrifying.  She said ten homes were too many for this lane.  She said this development would increase the traffic and pedestrians on this lane exponentially, and the likelihood of an accident was great.  She said if this danger was not dealt with in a responsible way, someone would be held accountable. 

Maria Pomeroy said Conditional Use Criteria No. 10, the public safety risk, was not fully addressed.  She asked who would be liable for an accident on this private road once the developer was gone.  She asked if the developer would inform the homeowners that they need additional insurance to cover their private road that was opened to public access.  She said that easement drive would be used illegally by the new residents of the development; speed bumps and signage would do little to deter them.  She said the staff report states that the private drive issue should be dealt with civilly, if it arises.  She said this was not acceptable and they need to ensure that trespass cannot occur.  She said previous use of this road was very limited and controlled by the owner.  She said she would not stay silent on this matter.  She said she understood the Fire Marshal's comments were not fully addressed or adhered to.  She asked if in the future the new homeowners from the development could take over this road and demand that the gate be removed and that they be given the right to use the road. 

Maria Pomeroy said in reviewing the staff report, there were too many loopholes regarding this easement road and this issue could balloon in the future and become a neighborhood feud.  She said there were major drainage issues in this area that the developer could help the City pay for; however, drainage issues were never responsible for anyone's death and what price would they put on that. 

Coun. Dalrymple asked Pomeroy if she had hit a pedestrian on this easement. 

Pomeroy replied no, that happened somewhere else many years ago and was not associated with this application.

Coun. Stanton referred to the access from Wilson Way to SW Canyon Lane.  She said  having a barricade at the west end of Wilson Way would prevent cars from Wilson Way accessing the easement lane.  She asked Pomeroy if that would meet her needs. 

Maria Pomeroy said the staff report did not firmly state that the road would be permanently closed.  She said the homeowners on Wilson Way own that road.  She said in the future what would prevent them from coming together and stating that they own the road and want access. 

Mayor Drake explained that if it was conditioned that Wilson Way would stop at the west end with a permanent barrier, it could not be removed without going back through a similar public process. 

Maria Pomeroy said that would need to be stated in the final order.  She added that there needs to be a gate.  She said this would encourage more pedestrians and bicyclists to use that lane because that would connect a bike thoroughfare on SW Canyon Lane to a bike route on SW Pointer Road.  She said that makes it more accessible for public use and the developer was encouraging public access.  She showed where the road was located on the aerial photograph.  She reiterated it was very narrow and dangerous as it winds through the properties with poor visibility and several driveways that come right up to the road.

Coun. Dalrymple asked Pomeroy if she was saying she was not worried about the additional vehicular traffic; only about additional pedestrian and bicycle traffic. 

Maria Pomeroy replied she was concerned about vehicular traffic because they would find that shortcut.  She said she was also concerned about pedestrian and bicycle traffic. 

Joe Hughes, Portland, SW 75th Avenue resident, said he was a contractor and developer and he was not anti-development.  He said he felt in this case ten houses was too many.   He said previous testimony covered his other issues, however, he wanted to point out an ambiguity to Council.  He noted that this site was ten acres,  the lots were smaller but with the open space the 5,000 square foot lots were compatible with the neighborhood.  He said the surrounding properties average one-third of an acre (2 1/2 times the size of the 5,000 square foot lots).  He said ten lots averaging one-third of an acre would be about 130,000 square feet.  He said the lots in this development would cover 52,000 square feet; that leaves a net of 78,000 square feet that is needed to make the lots similar to the surrounding lots.  He said this development has 19,000 square feet of open space, which leaves a shortage of 68,000 square feet in achieving what was implied in the application.  He said the proposed open space was not in parody with the surrounding lots.  He said West Slope did not have parks and consideration should be given to having fewer houses, more open space and possibly putting in a pocket park that would benefit the whole neighborhood. 

Coun. Stanton explained to Hughes that one-third acre lots were no longer allowed.    

Hughes said he was aware of that.  He said his point was that proposed open space was not even in rough parody with the amount of existing open space.  He said he was not sure he favored a PUD.  He said ten houses were too many.

Coun. Dalrymple asked staff what Tualatin Hills Park and Recreation District's (THPRD) response was to this application.

Sparks said THPRD provided no comment to this application. 

Angel Khalsa, Portland, said she lived on SW Pointer Road, and she favored a gate with six remotes for the property owners who needed access to this road.  She said as a former business woman, she agreed with the City's Goal 1, To Preserve and Enhance the Community, and she felt ten houses were too many to preserve and enhance their sense of community. 

Coun. Dalrymple confirmed with Khalsa that she was in favor of development of the site, but not ten units. 

Ernest Peterson, Portland, said he did not oppose development but ten lots were too many.  He said pedestrian safety and character of the neighborhood needed to be considered when determining the number of lots. 

Mary Kroger, Portland, said ten lots were too many for that site and two-story homes would not match the surrounding neighborhood.  She said ten homes would hugely impact SW Pointer Road and the access lane, increasing traffic and affecting safety.  She said Code Section 40.15.15.C.6 promised minimal impact on the neighborhood.  She thanked the Council for honoring existing neighborhoods.    

Coun. Arnold asked if SW 75th Avenue was a dead-end or could the residents from the new subdivision use it to reach SW Canyon Lane.

Kroger showed on the aerial photo how residents could go west on SW Pointer Road and then south on SW 75th Avenue to reach SW Canyon Lane. 

Julie Draper, Portland, said she had lived in this neighborhood for 15 years and ten houses were too many; the development should stay within the 7,000 square foot lot size at the most.  She said West Slope was unique in its charm and they would like to preserve that character even though the UGB mandates supporting development.  She said she thought it would be possible to preserve the character of the neighborhood and still develop the greenhouse site.  She said the soil had not been tested for herbicide contamination. 

Draper said the City has a proposed capital project to deal with the stormwater problems in West Slope.  She said one of the pending capital projects would have the stormwater runoff run into Golf Creek and she did not feel that stormwater should be dumped into that creek.  She referred to Comprehensive Plan Policy 3.13.1a and b, and said that this PUD did not further the policy of diverse housing needs and types. She said the proposed houses do not fit into the neighborhood.  She said Comprehensive Plan Policy 3.13.1h required innovative design coupled with compatible scale and setbacks similar to the existing neighborhood.  She said that was their issue, as large mansions would not look right in this neighborhood.  She said she disagreed with the staff report that said there were no significant trees, groves or landscape trees on the site.  She said at the entrance to the proposed road there were cedar trees, a mature maple tree, a healthy mature birch tree, a poplar tree and a laurel hedge.  She said the northeast corner of the property should be considered a small but mature garden greenspace.  She said the proposed PUD had too many unanswered questions and issues to be rushed into approval.  She said to make this a win-win for the neighborhood and the developer, the Council should not approve the subdivision until the number of lots was lowered and all the other issues were sufficiently addressed. 

Doug Gentner, Portland, said this was an issue of scale; the houses were not in the same form as the surrounding bungalow homes.  He said the proposed houses were more upscale and it would be jarring and would not fit in with the neighborhood.  He said if seven homes were developed, instead of ten, the developer would still make a profit and it would minimize the impact on the neighborhood.    

LaVonne Blowers, said she would like to see the number of houses reduced for safety reasons.  She said she was a bicyclist and rides on SW Pointer Road at least once a week and her husband bikes to work on that road every day.  She said many bicyclists use that road, including children going school.  She said that road was very steep; biking up the road was slow, but going down they fly.  She said that she has seen many drivers pulling out of driveways on SW Pointer Road and going into the opposite lane.  She said that was a safety concern for bicyclists.  She said this was the safety issue she was concerned about.  She said her other concern was that no extra runoff be allowed into Golf Creek.  She said having fewer houses means less runoff and a reduced chance of overflow going into Golf Creek, causing major erosion and habitat destruction.   

Ed Higdon, Portland, said most of his concerns about runoff were brought up previously.  He asked if the area was developed would the herbicides and pesticides be stirred up into the water.  He said he would like to maintain the 7,000 square foot lot minimum.

Coun. Arnold asked Higdon if he had issues with water runoff.

Higdon said there was water runoff onto his property from surrounding areas.  He said he put in a drainage ditch to help the water go down the street to the stormwater drains.  He said in heavy rain periods, the water would seep into his front yard and the daylight basin.  He said with improvements he installed it no longer seeped into the basement.  He said the water runs down the side of his property to the fence.    

Sid Snyder, Beaverton, representing himself, said that many pedestrians and bicyclists use the access easement lane to get onto SW Canyon Lane.  He said allowing more traffic on the lane was a tragedy waiting to happen.  He said he favored the development but adding 100 trips per day was too many.  He said when the developer came to the October 18 meeting, he had two different plans; one was for seven lots and the other for nine.  He said a year later, in the middle of the holiday season, the final application was for 11 lots and ten were approved.  He said what the residents heard at the meeting was not what happened.  He said the developer characterized the development as a "parade of homes" caliber.  He said that sent shudders through the neighborhood residents.  He said the proposed homes crowded onto small lots were antithetical to the character of the older neighborhood.

Mayor Drake asked Snyder what he thought would be ideal instead of ten.

Snyder replied seven or eight units would be better, but he really preferred the 7,000 square foot lots that the developer showed at the NAC meeting. 

Coun. Stanton explained that developers were not required to show final plans at NAC meetings.  She said they often come in with preliminary ideas that they think they might be able to do and then it gets scaled back.  She said this was not the first time this has happened. 

Snyder said they were promised that they would get to see something later and that did not happen.  He said this makes it difficult to convince people that the NAC meetings are meaningful because there was a high level of cynicism when people were told this was their chance to be heard.  He said there has to be some connection to that meeting and the reality on the ground.

APPLICANT REBUTTAL:

Mayor Drake reminded the applicant that if any new material was raised during the rebuttal the appellant would have the opportunity for surrebuttal.

Wilson said the Metro standards allowed seven to eleven lots; this proposal was in the middle.  He said he was willing to do what the City wants to take care of the additional traffic.  He said he went to two NAC meetings.  He said went to the first meeting and then he received a phone call asking him to come back and talk about the project a month later, which he did; that was a question-and-answer type of meeting and he spent a long time answering their questions.    

Mawson said on NAC meetings there was always a trade off.  He said if you go early in the process, there was always a change in plans, which was what happened.  He said if you go later in the process, with set plans, there was less likelihood that the plans would change and the residents feel they were not listened too because the plans were not changed.  He said the private street issue could be solved either through a gate or other means.  He said since the property owners on that street own the lane, they have privileges on changing the street that people do not have on public streets.  He suggested not making a decision at this time.  He said if the subdivision generated 100 trips per day, they would not all use that street; later they would know the better way to solve the issue, if there was one.  He said the number of units was always a problem.  He said the bigger the lots, the bigger the houses that would be built; they would be more expensive and out of character.  He said the zoning allowed 7000 square feet and with the PUD the lots can be smaller.  He said the impervious surface area would not increase much with fewer lots.  He said there would be some change in the character.  He said not many people in the neighborhood would be looking directly at these houses or driving through this area.  He said it would be a bit isolated and it would become compatible fairly quickly.    

Rappleyea confirmed that there was no new testimony in the rebuttal. 

Coun. Dalrymple noted there was concern regarding people entering that private easement and a suggestion was made to install a gate on the north end.  He asked what would happen if someone entered on the south end of the lane, went north and found a gate at the north end.  He said putting a gate at the north end was not the only answer.

Coun. Stanton said she heard that the value to the gate would be that it would stop anyone on Wilson Way from going west on SW Pointer Road then south on the easement lane to cut down to SW Canyon Lane.  She said it was not about access for the people who live on the north end of the access road to get back to their property.  She said the gate would prohibit the residents of Wilson Way from making the loop to connect to SW Canyon Lane.  She said she suspected that very few people, if any, go from SW Canyon Lane to SW Pointer Road on the easement lane.

Grillo said regarding asking the applicant to be held responsible for putting a gate off-site to mitigate traffic, the dilemma was that normally off-site traffic mitigation was done in the public domain.  He questioned whether or not a rational nexus could be made that this applicant had to do something on private property when there was nothing on the record that said that even if he was going to proffer to do that, that he could implement it.  He said if they were to get into proffering it or requiring it, they would not have a final land use decision. 

Rappleyea said the difficulty was the legal issue because there were so many people who own the easement, they all have a property interest on that lane, and they would have to get an agreement with all the people who own that easement, to have a gate and how it would be constructed.  He said that was the difficulty with an off-site condition.  He said there would be no final decision because there would be nothing in the record that would say this condition could be met.    

Grillo said he did not think the Council could go in the direction of conditioning an applicant to do an improvement on property that was not part of the application.  He said if they were to put a condition on a project that a developer had to do an off-site improvement, the people who own that off-site property could hold a developer hostage by not releasing their property interest.  Thus, the developer could not complete the condition of the development, so there would be no final land use decision.

Coun. Arnold asked if the City could request a traffic mitigation fee.

Rappleyea said that would be unusual and all the conditions have to be made roughly proportionate.  He said it would be difficult to say on a mitigation fee what would be roughly proportionate.

Coun. Arnold said it could be the cost for installing the gate one time.

Rappleyea said something of that nature might be acceptable to the applicant if there was an offer of a certain amount, to use this money for mitigation of any means they see fit.  He said that would be something to discuss with the applicant rather than the City imposing a fee.

Grillo said the 120-day deadline was February 23, 2007, and the Council was under an obligation to render a decision.  He said he was not speaking for the neighborhood or the developer; however, if the developer was interested in trying to find a solution, he could request a continuance without violating the 120-day rule and it could be brought back to Council.  He said this would provide the opportunity for the developer to work out some of the issues with the neighborhood.  He said the issue would have to come back to Council by the beginning of March.  He added that another issue was that no one present knew what the cost would be to mitigate a Level 2 Environmental Toxin.  He said without that information, if the Council were to decide on fewer lots this could be a non-starter.  He said he thought this was a real dilemma and there was little time left.

Mayor Drake summarized that under State law the City has 120 days to render a final decision and adopt a final order.  He said the City could not ask a developer to go beyond the 120 days.  He said there were a number of issues being considered.and he felt the Council was at a point where it did not have all the answers.  He said the Council could deny the application or this could be continued if the developer agreed.  He said if he was the developer he would not be sure that he wanted a decision made this late in the evening.  He asked the staff for options.

Rappleyea said the Council's two options were to approve or deny the development.  He agreed with Grillo's comments regarding the difficulty of conditioning a developer to do off-site improvements on property he does not own.  He said the other option would be to try to reconfigure the parcel, but there was no time to do that.  He said if the Council did not like the density on the project it could deny the development; if Council felt the density was acceptable, it could approve the development.  He said the decision could then be appealed to the Land Use Board of Appeals. 

Mayor Drake asked if the Council denied the project, would the option of prejudice vs. non-prejudice apply to the Council. 

Rappleyea said it would apply; if the Council denied the application without prejudice that would allow the applicant to reapply. 

Mayor Drake closed the public hearing at 10:28 p.m.

RECESS:

Mayor Drake called for a brief recess at 10:28 p.m. 

RECONVENED:

Mayor Drake reconvened the meeting at 10:41 p.m.

Sparks said that in speaking with the applicant and his representative, they were willing to continue this matter to March 5, 2007.  He asked that the applicant go on the record to indicate this. 

Rappleyea said the City would need another week in the extension of the 120-day rule to do the final order. 

Sparks said in speaking with the applicant it was agreed that the City would send the form to extend the deadline to the applicant.  He said the form contained the information the applicant would need to do the extension. 

Rappleyea said the idea was to close the public hearing but to limit the new testimony to the issue of the number of lots. 

Mayor Drake said the next meeting would be March 19.  He said if there was an extension it would have to be long enough to cover that two-week gap. 

Sparks said the absolute deadline for the written decision was March 27, 2007.

Mayor Drake said that having a condition requiring the gate was probably a non-starter.   He said that it appeared this issue was something that the developer and those fronting the easement would handle through a private agreement. 

Rappleyea said that was correct.  He said the property owners could install the gate themselves if they desired. 

Mayor Drake said the major issue was the number of lots and this would give the applicant time to consider reducing that number.  He said if the applicant did not choose to decrease the number of lots, then the Council would make its decision based on what was presented.  He said any new testimony would be limited to the number of lots.

Rappleyea said that was correct.

Wilson, applicant, said he agreed to extend the public hearing to March 5, 2007, with the final order to be considered on March 19, 2007.    

Grillo asked that the extension be to March 20 to allow time to prepare and sign the final order after the meeting of March 19. 

Wilson indicated the extension to March 20 was fine.

Grillo stated that any additional written material should be handed in to the City by Thursday, March 1, 2007, by 5:00 p.m.  He said this applied to the applicant and any other parties and the testimony should relate specifically to the number of lots.

Wilson, Mawson and Cox indicated that was acceptable to them.

Coun. Doyle MOVED, SECONDED by Coun. Stanton, that the public hearing on APP 2007-0001 Appeal of Pointer Road PUD be continued to March 5, 2007, at 6:30 p.m., for consideration as to the number of lots only, and all new written testimony should be filed with the City by March 1, at 5:00 p.m., and the final order to be prepared by March 20, 2007.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)

07033  Development Services Fee for New Sidewalk Design Modification Application (Resolution No. 3890)

Mayor Drake opened the public hearing and asked if anyone wished to testify.

There was no public testimony.

Mayor Drake closed the public hearing.

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that Council approve Agenda Bill 07033, Development Services Fee for New Sidewalk Modification Application.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0) (Resolution No. 3890)

ACTION ITEM:

07034  APP 2006-0005 - Appeal of TA 2006-0007 (See Page 3)

ORDINANCES:

Coun. Doyle MOVED, SECONDED by Coun. Arnold, that the rules be suspended, and that the ordinance embodied in Agenda Bill 07025 be read for the first time by title only at this meeting, and for the second time by title only at the next regular meeting of the Council.  Couns.  Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)

First Reading:

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

07025  An Ordinance Relating to the Use and Possession of Replica Firearms in a Public Place (Ordinance 4423)

Second Reading:

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

07023  An Ordinance Annexing a Parcel Located at 12730 SW Fairfield Street  to the City of Beaverton and Adding the Property to the Central Beaverton Neighborhood Association Committee: Expedited Annexation 2006-0003 (Ordinance 4421)

07024  An Ordinance Amending Ordinance No. 4187, Figure III-1, the Comprehensive Plan Land Use Map and Ordinance No. 2050, the Zoning Map for 25 Properties Located in North Beaverton; CPA 2006-0016/ZMA 2006-0021 (Ordinance 4422)

Coun. Doyle MOVED, SECONDED by Coun. Bode, that the ordinances embodied in Agenda Bills 07023 and 07024 now pass.  Roll call vote.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously. (5:0)
           
EXECUTIVE SESSION: 

Coun. Stanton MOVED, SECONDED by Coun. Bode, that Council move into executive session in accordance with ORS 192.660(2)(h) to discuss the legal rights and duties of the governing body with regard to litigation or litigation likely to be filed.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)

The executive session convened at 10:58 p.m.

The executive session adjourned at 11:36 p.m.

The regular meeting reconvened at11:36 p.m.

ADJOURNMENT: 

There being no further business to come before the Council at this time, the meeting was adjourned at 11:36 p.m.

APPROVAL:

Approved this 19th day of March, 2007.

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Rob Drake, Mayor