BEAVERTON CITY COUNCIL
REGULAR MEETING
JUNE 11, 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, June 11, 2007, at 6:39 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, Interim Community Development Director Steven Sparks, Public Works Director Gary Brentano, Library Director Ed House, Human Resources Director Nancy Bates, Police Chief David Bishop, and Deputy City Recorder Catherine Jansen.

VISITOR COMMENT PERIOD:

Hal Ballard, Bethany, Washington County Bicycle Transportation Coalition, congratulated the City on its designation as a Bicycle Friendly Community by the League of American Bicyclists.  He said he appreciated all that the City had done to promote safe bicycling.  He said on May 16, 2007, the Inaugural "Westside Ride of Silence" was held to honor those bicyclists who were killed or injured on the roads.  He said the Ride was held in over 271 locations on seven continents, including Antarctica; in Beaverton over 50 cyclists participated including members of the Beaverton Police Department and Washington County Sheriff's Office.  He distributed a report on the Ride of Silence to the Council (in the record).   

Mayor Drake thanked Ballard for his assistance in achieving the Bicycle Friendly Community designation.  He said Ballard was very supportive and helped prepare the grant applications for the expanded bike lanes.  He said the City appreciated his help. 

COUNCIL ITEMS:

Coun. Bode said the Washington County Commission on Families and Children was conducting its summer Free Lunch Program at several schools, apartments and at the Beaverton Police Athletic League Center, from June 25 to August 16, 2007.  She said this program serves many Beaverton youth who do not receive lunch in their living situation.  She said information could be obtained from the Washington County Commission on Families and Children at www.co.washington.or.us.

Coun. Dalrymple congratulated Oregon State Beaver Baseball for making it to the Super Regionals Tournament.  He said one team member, Darwin Barney, was a Beaverton resident and he had watched Darwin grow up over the years.  He said he hoped the team would do well as it worked its way to Omaha. 

Coun. Dalrymple said the State Legislature recently approved House Bill 2760 that effected annexation requirements.  He asked if the Council was willing to review the City's current annexation policy at a work session to ensure the policy was up to date and followed the new State requirements.  There was Council consensus to review the policy. 

Mayor Drake agreed the City's policy needed to reflect State requirements.  He asked when the bill would go into affect.

City Attorney Alan Rappleyea said HB 2760 contained an emergency clause which had made the bill effective upon passage.  

STAFF ITEMS: 

There were none.

CONSENT AGENDA:

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

07118  Development Services Fee Schedule Amendment (Resolution No. 3900)

07119  Beaverton Downtown Parking Solutions (Resolution No. 3901)

Contract Review Board:

07120  Bid Award - Pipe and Piping Products Requirements Contract

Coun. Stanton said that she had served on the Stakeholders Advisory Committee for the downtown parking issues and was pleased to see the City proceeding expeditiously on the Downtown Parking Solutions recommendations (Agenda Bill 07119).  She said she would like to serve as the Council's representative on the advisory committee that would work on these issues.

Mayor Drake and the City Council agreed Coun. Stanton would be the Council's representative to that advisory committee.

Coun. Arnold thanked the other members of the Stakeholders Advisory Committee for their work on the Committee.

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

PUBLIC HEARING:

07114  Appeal of Commuter Rail Project:  APP 2007-0009/APP 2007-0010 (Freece) 
APP 2007-0011/APP 2007-0012/APP 2007-0013 (Shadrall) 
(Continued from the meeting of June 4, 2007)

Mayor Drake explained this hearing was opened at the June 4, 2007, Council meeting and continued to this date.  He said the legal hearing statement was read at the June 4 meeting.  He said there was a new handout, regarding a settlement from one of the appellants, Bed, Bath and Beyond.

APPELLANT: BED, BATH & BEYOND/SHADRALL:

Mark Whitlow, Perkins Coie LLP, Portland, representing appellant Bed, Bath and Beyond (BBB) and Joseph Schaefer, Land Use Planner, Schwabe, Williamson & Wyatt LLP, Portland, representing appellant Shadrall Beaverton LP (owner of property leased to BBB), introduced themselves. 

Whitlow said these appeals were filed because the site plan that was approved by the Planning Commission needed revisions.  He distributed a copy of the new site plan to Council and staff (in the record).  He said the new site plan (Tri Met Land Use Drawing dated 6/11/07 - Revised) was approved by Tri Met and City staff.  He said revised findings and conditions would be included as part of the revised site plan.  He said the revised plan would settle the appeals from BBB and Shadrall. 

Schaefer added that there were no substantive changes to the site plan as compared to the plan approved by the Planning Commission.  He said all the parking, access and signage issues were approved earlier by a separate process.  He said the only change to the site plan was to include information about the tree removal and the parking count to ensure that when the project is competed, it would be clear to determine how the property reached that condition.

Rappleyea said that the revised site plan comports with issues raised by legal counsel and staff in Section 2 of the June 6, 2007, memorandum from Liz Jones regarding ODOT access.  He said staff requested that there be no reference to ODOT access because that was outside of the City's jurisdiction.  He said the revised site plan met the City's interest in this matter.  He read the condition from the June 6 memorandum that staff wished to delete (page 3, last sentence) which referred to ODOT granting access to Canyon Road. 

Mayor Drake said for the record that the condition being discussed was in the memorandum dated June 6, 2007, from Liz Jones, Appeal of Commuter Rail Project, and was the last sentence of the last paragraph on page 3.  He added that Whitlow and Schaeffer were stating that their appeal issues had been resolved.

Interim Community Development Director Steven Sparks said that with the resolution of the appeal on the BBB site, the Freece Family Appeal (NAPA Auto Parts) was the only remaining issue.  He said staff had nothing to add to the written report that was submitted previously to Council.

There were no Council questions at this time. 

APPELLANT: FREECE

Warren Freece, Beaverton NAPA Auto Parts, displayed an aerial photograph of his site  and distributed written copies of his statement to Council and staff (in the record).  He said he had met with Tri-Met several times but was unsuccessful in resolving his issues.   He said the applicant had not demonstrated that the biggest risks have been mitigated.  He said this application did not meet City Code Sections 40.03.06 (safe and efficient vehicular and pedestrian circulation patterns within the boundaries of the site) and 40.03.07 (on-site vehicular and pedestrian circulation system connects to the surrounding circulation system in a safe, efficient and direct manner).  

Freece said the Lombard Extension was a major pedestrian route.  He said the November 2006 Federal Transportation Administration Study stated that exposure of pedestrians and motorists at highway/rail grade crossings continued to provide significant safety challenges with no immediate or cost-effective solutions.  The Study also said there was a need to identify and implement activities and practices that have the potential to mitigate the greatest risks.  

Freece summarized the following comments from the Washington County Commuter Rail Traffic Engineering Analysis (Analysis).  He said light railcars weigh 75 tons and would pass close to his store 32 times a day, creating problems with sufficient braking distance and noise from the horn blasts.  He said that the Analysis recommended 200 feet as the safe stopping distance for a commuter rail train.  He said the applicant had not adequately addressed the safety measures that would be put in place to protect pedestrians and bicyclists.  He said that the Analysis found that train pre-emptions would significantly impact vehicle progression on Canyon Road, Farmington Road and Lombard Avenue; and vehicle progression along Lombard Avenue would be poor.  He said the applicant should implement a train departure timing system so that the trains could only depart during periods of time that would not significantly impact traffic on Canyon or Farmington Roads.  He said the applicant had not implemented such a system and had not altered the train schedule based on the Analysis.   

Freece said the Analysis stated that the driveways do not meet the City's access standard.  He said the applicant had not identified short and long-term strategies for access management to enhance safety and efficient traffic operations.  He noted that Conditions of Approval PTF 2006-0003, No. 27, and DR 2006-0157, No. 26, required barriers such as wheel stops at all parking spaces where there was no separation between parking stalls and right-of-way; and that the wheel stops be located within a minimum setback of three feet from the edge of the right-of-way.  He said that the noise from the horn blasts would be more than what was anticipated and that there was more happening with this project than he or others ever understood.  He concluded by stating that there were issues that were not addressed in the rush to complete this project.  

Mayor Drake referred to the wheel stops and said he thought Freece would not want to have vehicles go over the public sidewalk and possibly hit pedestrians.  He said he was trying to understand Freece's opposition to the wheel stops. 

Freece said having the stops three feet from the edge of the right-of-way would force cars further back than where they currently park.  He said they discussed changing the parking around the building with Tri-Met and City staff.  He said Tri-Met staff indicated they would provide drawings of the parking lot and he had yet to see those drawings.  He said he was willing to look at an optional parking arrangement but he believed he would lose parking space and he was concerned with staying within the Code requirements.  He said this would effect access and parking for his business.  He asked who would pay for all of these changes.  He said the applicant had not addressed how this project affects his property. 

Freece added that one commissioner had stated that if this was a private project they would have denied it but since it was approved by the County and State, the City would approve it.  He said he would not get away with damaging his neighbor in this manner on any project he wanted to permit.  He said he understood this was a big project and that many people wanted commuter rail, but there were some loose ends.  He said Charles Kettenring [ODOT Safety Crossing Engineer]had said he would have preferred to not have the commuter rail come across Canyon Road or it could have stopped before Broadway.  Freece said he thought that was doable and he had submitted that option previously.  He said as he continues to lose parking spaces, his employees walk two to four blocks for parking; eventually that parking will be lost as areas redevelop.  He said he was fighting for every parking space he could keep.  He said that the trucks and vehicles that patronize auto parts stores were larger than normal, and these vehicles often come in towing trailers or boats.  He said maneuverability would be affected if the left-in or left-out access disappears.

Coun. Dalrymple asked the width of the sidewalk that bordered the parking area.

Sparks replied it was a five-foot sidewalk. 

Freece said he was not opposed to alternate parking configurations but he had not been able to make any progress with Tri Met.

Coun. Bode asked Freece if he was looking for relief from the wheel stops.

Freece said that was correct; he did not want the wheel stops imposed on his lot.

Coun. Bode asked Freece if he understood that Tri-Met would pay for the wheel stops if they were required for this site. 

Freece said he did not fully understand that and he would like to have everything in writing and signed so that it would be clear who would be responsible for what.   

Coun. Bode asked if Freece would find the wheel stops more palatable if Tri-Met paid the costs. 

Freece said that was possible but his greater concern was how that would effect vehicle movement in the parking lot.  He said moving the cars out a few inches would affect the driving aisle.  He said his site was squeezed for space and he was trying to save as much room as possible for vehicle circulation. 

Coun. Bode asked Freece if he had done a parking study for the parking lot and if it was at 90% full most of the day.

Freece replied he had not done such a study.

Coun. Bode asked Freece if the parking lot issue was still open for discussion.

Freece said he was looking for solutions to end up as whole as possible.   He said he was under the impression that this project would damage the access and egress to his parking lot.  He said if there was a fire or medical emergency, the raised median would be more of a challenge for emergency vehicles than what currently exists.

Coun. Stanton referred to Freece's aerial photograph and said she had always accessed the NAPA store from Broadway not from Lombard Avenue.  She confirmed with Freece that there was access into the lot from Canyon Road.  She asked if Freece would lose any of the width between the wheel stop and the front of the building with the new wheel stops and street improvement. 

Freece said he would lose space between the back end of cars and the building and they would not meet City Code. 

Coun. Doyle asked if the wheel stops were required for only part of the parking lot,  would that help the flow and circulation for delivery vehicles. 

Freece said that was possible. 

Coun. Doyle noted another alternative suggested in the staff report was a wall around the edge of the site in lieu of the wheel stops.  He said he assumed that could be an impediment for delivery trucks. 

Freece said that was correct and the wall would create the potential for vehicle damage. 

Coun, Dalrymple said it seemed that this should have been designed to allow Freece to keep the parking space on the site and for emergency vehicles to drive through the parking lot.  He said his understanding was that the aisle width has to be sufficiently wide to accommodate an emergency vehicle.  He said that if there was a requirement that a) final design implemented for this project maintain the parking that already exists, b) solve the problem of whether or not to have a wall or wheel stops, and c) allow for emergency vehicles to be able to drive through the parking lot, that would solve the issue and Freece would not lose any parking.  

Coun. Arnold said she asked staff about the emergency access and the response she received was that "Within respect to emergency vehicle access, the same issue was raised with the Goodyear property to the southwest of the Freece property, TVF&R representatives concluded that the 20-foot standard was not an issue for the Goodyear site as there was adequate access from other portions of that site.  With respect to the Freece property, TVF&R has the same opinion and is not concerned with the drive aisle width."  She confirmed with City staff that that opinion came from TVF&R. 

Coun. Arnold added that when she went by that property, the drive aisle already appeared narrow and there were people parking on the sidewalk and boats in the corner of the site.  She said it seemed the parking lot was already at the limit for what they were trying to do on that space.  She said they were already having difficulties with crowding, for cars were parked on the sidewalk.

Freece said the City already took property from the site for Lombard Avenue; this situation was not a short-term issue.  He said when Safeway was across the street they had an agreement to use some of their parking.  He said that was why he was fighting to keep his space.  He said the three-foot requirement for the wheel stops does not leave sufficient space to meet the City Codes. 

Coun. Arnold said from what she observed a fire truck could not go between the cars and the building; but this was not an issue to TVF&R for they could access the building from the road.  She said she did not see the emergency issue as something to worry about.

Freece said the issue was emergency access when the commuter train has blocked traffic in that area and access would be further hampered by tight parking. 

Coun. Arnold said that was an issue City-wide.

Freece said he would prefer maintaining the current situation rather than having the commuter train stopping the traffic.  He said the applicant needed to find a solution.

Sparks said the written material submitted by Freece would be labeled Exhibit 2.17; and the aerial photograph Freece submitted would be labeled Exhibit 2.18.

APPLICANT:

Mark Greenfield, Portland, Tri-Met representative, introduced himself and Jeb Doran, the Commuter Rail Project Engineer. 

Greenfield said this regionally significant project had been in the making since 1995; it was undertaken by a regional partnership that included the cities of Beaverton, Wilsonville, Tualatin, Tigard and Washington County.  He said an intergovernmental agreement was adopted that addressed issues such as project design.  He said the cities, County and Metro amended their comprehensive plans and transportation plans to include the commuter rail route and the location of the station.  He said he was pointing that out because the commuter rail route was approved in the past through the land use process and was not appealed.  He said the City of Beaverton also had an intergovernmental agreement with Washington County and Tri-Met on the Lombard Improvements that would run concurrently with this project.  He said Tri-Met was representing all of the regional partners behind this project.  He said their goal was to commence commuter rail service by December, 2008.  He said their hope was that they would receive a favorable decision so that construction could begin and the December goal could be met.  He asked Doran to review the project for Council.   

Jeb Doran, Commuter Rail Project Engineer, Tri-Met, reviewed the project in Beaverton including the terminus location and features, route, major crossings, sidewalk/roadway improvements, and construction updates.  He said testing of the system would begin January 1, 2008.  

Greenfield said regarding BBB and Shadrall, that while they have reached agreement, the findings and revised conditions would need to be adopted. 

Rappleyea confirmed that the findings would be prepared and sent to Council for comment.  Once completed, the findings will go to the Mayor for signature. 

Coun. Doyle asked if on this project route, they had run into this need to go down an existing street or created a street to marry up to an existing street, or was this a unique part of this route.  

Doran said this was the only area where they were running through existing streets; up to this point, the route ran on existing track. 

Coun, Stanton noted that Freece had concerns regarding tonnage and noise.  She asked if the commuter rail speed would be 15 miles per hour between Farmington Road and the Beaverton Transit Center.

Doran said it would be ten miles per hour.  He said the commuter train was not a locomotive; it was a DMU which was smaller than the standard locomotive. 

Coun. Stanton asked if the train would have a standard freight rail horn.

Doran replied the train had the freight rail horn but in Beaverton they were looking at using wayside horns to bypass the train horn.  The wayside horns were not as loud as the rail horns and they direct the sound towards the cars at a lower decibel. 

Coun. Dalrymple asked Whitlow and Doran for their assessment of the Freece appeal regarding the parking lot design.  He asked if they had mitigated the issue or if there was a problem yet to be resolved.

Doran said they met several times with Freece to discuss these issues and new issues were presented this evening that they had not heard previously.  He said they had discussed reconfiguring the lot and striping to create more space and better circulation but they never reached agreement to do that work.  He said they discussed the wheel stop locations with Freece and he was not interested in the wheel stops; also, they discovered the lot space was tight and there was insufficient room.  He said no permanent improvements or impacts were being placed on the Freece property.  He said there would be a temporary construction easement, for the sidewalk improvements, that was inside of the right-of-way.  He said that easement was needed to ensure that the back edge of the sidewalk would match with the existing sidewalk  He said they would not be operating large equipment on the Freece property.  He said to mitigate the safety issue of cars parking over the sidewalk, Tri-Met would install ballards on the platform and multi-use path, within the right-of-way; not on the owner's property. 

Greenfield said Tri Met was not taking any of the Freece property so they would not have any impact on the current parking.

Doran confirmed that was correct.

Coun. Dalrymple clarified that once the project was completed, there would be no encroachment on the Freece's  property and that all work that was being done in relation to stopping vehicles would be within the right-of-way. 

Doran replied that was correct.

Mayor Drake said that many years ago when that section of Lombard Avenue was improved, the City purchased a portion of the lot for the right-of-way from Freece's father.  He said at that time, the City made a commitment to do everything humanly possible to not take any more of the Freece's property.  He said one of his charges to the engineering consultant who designed this route was to not impact the Beaverton Auto Parts property in any way and that included the parking lot.  He said he bird-dogged this project to make sure that they kept that commitment.   

Coun. Dalrymple said he appreciated the history on this issue and it was important that people understand what has occurred.  He said he was satisfied that the finished product would meet the intent of what he believed Freece was saying.  

Greenfield said Freece would lose the existing left turn into the driveway but that was true for many of the properties.  He said that was a requirement of ODOT Rail.  He said they looked at the Study that Freece cited regarding safety.  The Study said there were safety issues associated with rail and that was true, for there were safety issues with every type of transportation.  He said the Study said that commuter rail was the second safest form of transportation; only rapid rail has fewer fatalities per million passengers carried.  He said for commuter rail, the highway grade accident averaged 0.61 accidents for every ten million passenger miles traveled.  He said the greatest cause of accidents was trespassing.  He said while it was not 100% safe, commuter rail was quite safe in comparison to other forms of transportation.

Coun. Stanton asked if the wheel stops would still be a condition on the project if the ballards were installed. 

Sparks said that Condition No. 27 required that Tri-Met install the wheel stops for pedestrian safety and if they were unable to do the wheel stops, the alternative was to install the ballard and the wall in the right-of-way.  He said it was written as an "either or" scenario.  He confirmed that the property owner (Freece) could refuse the wheel stops and Tri-Met would use the ballard and wall instead.   

Coun. Stanton asked if there was a way to install the ballards without being right on the property line. 

Doran said the ballards would not be on the property line as they require footing space.

NEIGHBORHOOD GROUPS/OTHER AGENCIES:

Karen Frost, Executive Director, Westside Transportation Alliance, Beaverton, said the Alliance was an organization of businesses and public agencies that work to relieve congestion in Washington County, promote a vibrant economy and help promote livability by encouraging traveling behaviors that reduce reliance on automobiles alone.  She said many employers and employees along the route were anticipating the arrival of commuter rail as a solution to the high cost of driving and commuting.  She said the commuter rail offers an important link to connect employees to suburban employment centers and to downtown Portland.  She said some businesses were impacted more than others but this route has taken advantage of existing rail lines and has little effect on property owners along the route.  She said that regardless of the rail project on Lombard, she would have come before the Council with a complaint about the disregard for the pedestrian right-of-way along the sidewalk adjacent to Beaverton Auto Parts.  She said she would have suggested that Beaverton Auto Parts restripe its parking lot so that large trucks are accommodated away from the sidewalk on Lombard Avenue and all vehicles are prevented from obstructing the sidewalk.  She said a few weeks ago when walking to the Transit Center she was so astounded by a crew cab pickup truck obstructing the entire sidewalk that she stopped and photographed it; and this evening an automobile was parked halfway into the sidewalk.  She said with the addition of commuter rail, Lombard Avenue would have improved pedestrian accessibility and safety, without vehicles obstructing the sidewalk, if the Council approves the project.

OPPOSITION:

Henry Kane, Beaverton, said for years he has been analyzing the commuter train.  He said the comments made tonight were just an inkling of the problems that would exist when the rail line opens.  He said it was not a good idea to run railways on city streets, especially when the streets were very short.  He said this would stop traffic on Canyon and Farmington Roads.  He said there was no way that these trains and motor vehicle traffic could co-exist on this street system. 

Greenfield waived rebuttal.

Freece asked if the appellant could provide rebuttal.

Rappleyea said the applicant had the burden of proof and the last word, unless he raised new evidence.  He said no new evidence was submitted, so the appellant could not rebut.   

Sparks said Tri-Met had referred to a graphic that was Exhibit 3.8 in the staff report.     He said Coun. Bode asked about the distance that vehicles would move into the drive aisle because of the wheel stops and three feet was mentioned.  He said the three feet was not measured from the front of the car for there was an overhang to the wheel stops.  He said while the wheel stops would be three feet from the property line, there would be an overhang from the wheel stop and the distance of the overhang depended on the type of vehicle.  He said in reference to what the City Code requires for aisle width, it would depend on the angle of the parking.  He said assuming a 45-degree angle, aisle width is 12 feet per Code.  He said they believed there was adequate aisle width per Code. 

Coun. Bode referred to the "either or" option of wheel stops or ballard and wall.  She asked if Freece could pick which he preferred. 

Sparks said Freece and other property owners having the option of allowing Tri-Met to install the wheel stops.  He said if the owners decide not to have wheel stops then the ballard and wall would be installed. 

Sparks replied to Coun. Dalrymple's earlier question that the current sidewalk width was five feet.  He said the existing planter strip would be removed  with these improvements.  He said the street trees would be kept in tree wells.  He said if the wall and ballard approach was used, there would still be adequate room for safe pedestrian passage.  He said at this point the dimensions were very tight for the sidewalk and an unobstructed travel path.

Coun. Doyle asked if the Council decided not to impose Condition No. 27, could the  applicant still do the ballard and wall.

Sparks said that was not possible.  He said if the condition were dropped entirely, there would be nothing requiring the applicant to do the ballard and wall.  He said they could do it if they chose and if it did not cross a threshold for design review.

Coun. Doyle asked if there were any concerns the Council should be aware of regarding this condition. 

Sparks said this condition was included because there would be a lot of landscaping to help visually soften the impact to the area.  He said staff concern was that if landscaping was used to mitigate an impact, that the landscaping would survive. 

Coun. Stanton referred to page 7 of the Freece handout, under appeal Condition No. 26, it stated that these conditions render the parking lot out of compliance with City Code.  She asked if that was correct for she did not understand how installing the wheel stops would make them out of compliance.  She said she read the Code and did not believe it was out of compliance.

Senior Planner Don Gustafson confirmed the parking lot would not be out of compliance. 

Mayor Drake closed the public hearing.

Coun. Stanton MOVED, SECONDED by Coun. Bode, that the City Council uphold the decision of the Planning Commission and reaffirm DR 2006-0157, PTF 2006-0003, and TP 2006-0022, and deny appeals APP 2007-0009/APP 2007-0010 (Freece) and APP 2007-0011/APP 2006-0012/APP 2007-0013 (Shadrall), including all findings, staff report and memorandums received on the record.  

Coun. Stanton said she was very confident that all issues have been addressed and while there may be a visual impact and loss of the left turn lane, that appeared to be the only impact that Light Rail would have on the Freece's business.  She said the site had an alternate driveway access and the parking lot width would not change.  She said that was why she made and would support the motion.
   
Coun. Bode agreed with Coun. Stanton.  She said she questioned the process because the appeals indicated that the only remedy was to do the wheel stops which was not accurate.  She said the likely alternative that Tri-Met could use would not impinge on the property owner or the parking lot.  She said the left hand turn would be lost but there was another entrance, so she would support this motion.

Coun. Doyle said the City owed it to the businesses to take a hard look at the impact they would suffer from projects.  He said the loss of egress was important so he was glad they had this discussion.  He said he hoped that if any further difficulties arose,  the applicant and appellant would get together and take the time to make it right.  He reiterated he was glad they had this discussion for it was important to respect what the downtown businesses have done for the City over the years. 

Coun. Dalrymple said he concurred with Coun. Doyle.  He said it was important to hear from and support the businesses for they were the lifeblood of the community.  He said when he looked at this, he saw solutions not more problems.  He said whether or not the appellant agreed he would support the motion for he saw solutions reached at this meeting. 

Coun. Arnold said because of nature of how this property was being used there were access issues; however, she felt this fell within the guidelines of how access was to be met.  She said there was always a tradeoff in considering issues and decisions were made for the greater good of the community.   She said she hoped there would be continuing discussions on possible ways to improve the flow of the Freece parking lot.  She said she would support the motion. 

Question called on the motion.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:00)

RECESS:

Mayor Drake called for a brief recess at 8:22 p.m. 

Mayor Drake reconvened the meeting at 8:33 p.m.

07121  APP 2007-0006 Appeal of Director's Interpretation DI 2007-0002 (Church 30 Foot Setback)

Mayor Drake opened the public hearing.

Mayor Drake said that normally staff reads the legal statement that defines the public hearing process, to ensure that everyone understands their rights.  He noted that the appellant (Kane) was very familiar with the land use process, having appeared before the Council many times in the past.

Henry Kane, Beaverton, appellant, waived the reading of the statement of legal rights.

Interim Community Development Director Steven Sparks asked if any Councilor had a potential or actual conflict of interest.

None were declared. 

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

Coun. Dalrymple said he ran into Kane in the hallway and Kane had a few things to say regarding commuter rail.  He said they did not discuss Kane's appeal issue. 

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

Mayor Drake and all of the Councilors indicated they drive by this site. 

Sparks 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 challenges were declared and no requests for continuance were received. 

City Attorney Alan Rappleyea said this met the requirements for the hearing.

Sparks noted Council previously received the staff report.  He said today Kane submitted a two-page letter dated June 11, 2007, with a series of attachments.  He said it appeared that the first page addressed an issue not before the Council at this meeting but the second page did address the Director's interpretation. 

Coun. Stanton referred to page 10, third paragraph, of the staff report and asked if there were other non-conforming churches in the city. 

Sparks said the existing structure does conform to the zoning on the site.  He said the Code requires that churches and schools have a 30-foot setback from residential zone properties.  He said there may be other examples of existing structures that meet the zoning setbacks but do not meet the 30-foot setback from residential zones.  He said there were churches in the Old Town, between Fifth Street and Allen Boulevard, that were pre-existing to when this standard was adopted.

APPELLANT:

Henry Kane, Beaverton, appellant, said this matter was a solution for a problem that does not exist.  He said he and Sparks have a difference of opinion regarding the Community Development Director’s authority.  He said the Director's authority was general.  He read Code Section 40.25.15.1.D and said this was a specific requirement that prevails over the general requirement.  He said that Code section states that the owner or the owner's representative must ask for an interpretation.  He said the staff report ignored that section. 

Kane said the problem before them was what to do with an old building.  He said when a building was grandfathered in, as long as that usage continued it would have the benefit of the grandfathered status.  When the building changes ownership or use, then it has to be brought into compliance with the Code.  He said this application was incomplete.  He said the City would not have to look at this property until the application was completed and the Conditional Use Permit was submitted. 

Kane said he doubted the City would ask the owner to remove part of the building to meet the setback.  He said the building had an offensive-looking enclosed wet garbage structure and he thought staff would say this was obsolete since it was not a restaurant anymore.  He said the building was an eyesore; it needed painting and there was graffiti.  He read an article from the June 7, 2007, Oregonian which stated that Kane had said his appeal had nothing to do with religious issues; he said that was correct.  He said his objection was that the Director could make a Development Code interpretation and say that he did not like one provision.  He said that was lawlessness.  He said having the Director make an interpretation was not correct especially when the Code states that the owner or his representative were the ones who must ask for an interpretation.  He said the Code setback language was clear.

APPLICANT:

Ali Houdrose, Portland, applicant, Beaverton Islamic Community Center, said he previously spoke to Kane for this was not the first time Kane had complained about the Center.  He said they bought this Center because the Islamic Community was growing and this building would accommodate their use.  He said they bought the Center to improve it and they applied for a Conditional Use as required by law.  He said this use was not a 100% church use; they were a Community Center with non-profit status under religious organization.  He said they hold community events, provide Islamic services and counseling, and they held prayer services there.

Houdrose said most of the time the building would be empty with little activity.  He said the maximum number of people they have at their events was around 35.  He said they understood the building was under a different zone and because of the new use it was labeled a church and it does not meet the 30-foot setback.  He said the alley was not used including the area designated for garbage.  He said he hoped the Council would agree and approve the staff's recommendation. 

Coun. Dalrymple asked if Houdrose had considered doing any remodeling to the structure to meet the setback requirements.

Houdrose said they were not doing any structural changes; interior remodeling would be done to meet the needs of the Center.   

Coun. Dalrymple asked if they had closed on the property.

Houdrose replied they had closed on the property. 

Coun. Dalrymple asked if they were aware of the setback requirements when they closed on the property.

Houdrose said they were not aware of the setback issue at that time.

Coun. Dalrymple asked when they became aware of the setback requirements, did they consider modifying the existing structure to meet the setback.

Houdrose said it was very expensive and it would cost a great deal to move the bearing walls.  He said it would be cheaper to demolish the building and build anew.  He said he did not know if the building could be modified to meet the requirements. 

Coun. Stanton asked (referring to an earlier statement by Appellant Kane) if there would be loud organ music at the Center.

Houdrose said there would be no music for music was against their religion. 

SUPPORT:

Rev. Peg Pfab, Beaverton, said she was the pastor of the church across the street from the Center and her congregation was happy to have the Center in the neighborhood.  She said it would be a huge hardship to remodel that building to meet the 30-foot setback.  She asked if it was not a problem when it was a restaurant, she did not see why it would be a problem now.  She said they were a very good neighbor.  She said she was sure exceptions were made to the Zoning Code.  She said they have a great organization there now and it was much better than having an empty building attracting unsupervised youth. 

Janet Britton, Beaverton, said she was a neighbor on Alpine Drive and she wanted to support the recommendation to approve the exception to the Code.  She said currently there were five churches within three blocks of the Islamic Center.  She said they were good neighbors.  She said she favored having another religious organization as part of the neighborhood. 

Robert Morris said he was working with the Islamic Center on this application.  He asked if Kane's concern regarding process would be resolved if the applicant filed the paperwork for an interpretation. 

Rappleyea said he did not see a problem with the Director's process in this matter.  He said the Code was very specific that the Director could interpret the Code.  He said he did not see any problem with Director’s interpretation and the request for an interpretation did not need to come from the applicant.

Morris said as an engineer he looked at the structure and setup of the building and it was not feasible to alter the building.

Coun. Dalrymple asked if there was anything within the Development Code that provided for an exception, if he did not agree with the current interpretation.

Rappleyea said the staff report discusses the purpose of the setback and on pages 6 and 7 it discusses lawful structures.  He said in this case, the building was built and exists lawfully; the problem was that the church use makes the setback from residential zones a problem.  He read Code Section 30.30, Non-Conforming Structures, "…a lawful structure exists at the effective….that could be built under the terms of this ordinance by reason of restrictions on area, lot coverage, height or yards…such structure may be continued so long as it remains otherwise lawful…". 

Coun. Dalrymple confirmed with Rappleyea that that section dealt with the issue of grandfathering rather than a new use.  He read from page 10 of the staff report (first sentence of last paragraph) "Historically, the City has applied this regulation equally to new construction and conversion of existing structures to a church use."  He said his concern was that if a new church was being built under the current Code, what would be the difference between building a new church and allowing someone to go into an existing building that does not meet the current standards.

Rappleyea said the building does meet current standards for use.  He said the interpretation was needed because the Code was not exactly clear.  He said having the Council make the interpretation would bear more weight, at LUBA and in the courts, than the Director's interpretation.  He said in order to give meaning to the Code's non-conforming structure section, the Code had to be interpreted in the way that the Director interpreted it. 

There were no further questions. 

Mayor Drake closed the public hearing.

Coun. Bode MOVED, SECONDED by Coun. Doyle, that Council deny the appeal APP 2007-0006 and uphold Director’s Interpretation 2007-0002 (Church 30 Foot Setback).

Coun. Bode said this falls under the rule of reasonableness and a church use in that neighborhood was reasonable.  She said this was supported by a local church and there was a cluster of churches in that neighborhood that seemed to be compatible.  She said this was a reasonable use as delineated in the Director's Interpretation.   

Coun, Dalrymple said he experienced consternation over this issue because he had a hard time agreeing with the statements regarding the interpretations.  He said he did not have a hard time with the welcoming of the new neighbors to the area, especially with the support voiced at this meeting for this compatible use.  He said if he was to make a decision based strictly on the Code, he would not agree with this action.  He said because of the testimony he heard and because the Council has flexibility in determining how to deal with the issue he would support the motion. 

Coun. Stanton said she would support the motion because of the Director's interpretation in the conclusions section of the staff report (page 15, Section V).  She said she appreciated the five conditions in that section and she hoped they would be included in the report for the land use application.  She said this was a good use of that space and she appreciated the testimony in support of the Center. 

Coun. Doyle said he would support the motion.  He said he was satisfied with the Director’s authority in exercising his judgment and that was reaffirmed by the City Attorney.  He said this made sense in this case and he looked forward to seeing what would happen with the property.  He said hopefully at some point they could address the appearance issues. 

Coun. Arnold said she would support the motion.  She said there were times when one has to consider issues that are "in shades of gray"; not clearly black and white.  She reviewed the history on the site and said this case was one of those gray areas.  She said because of that, discretion and interpretation was required.  She said she believed they met the intent of the reason why all these rules were created, and that was to be sure that the buildings and uses are compatible and good for the neighborhood.  She said this definitely met that intent. 

Mayor Drake said he agreed with the Council and with the Director's interpretation.  He said it was important to recognize that this community has changed a great deal and the need to honor and be vigilant about the community's racial, cultural and religious diversity was important, because that could slip backwards if the City was not careful to promote and protect tolerance and understanding.  He said the Code had been met and the community welcomed the Center.  He said if he could vote he would vote to support the majority.   

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

ORDINANCES:

Coun. Doyle MOVED, SECONDED by Coun. Dalrymple, that the rules be suspended, and that the ordinance embodied in Agenda Bill 07122 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:

07122  An Ordinance Amending Ordinance No. 2050, the Zoning Map to Apply the City's Office Commercial Zone to Two Properties Located in Northern Beaverton ZMA 2007-0012 (Tax Lots 1S102DC04304 and 1S102DC05300)  (Ordinance No. 4442)

Second Reading: 

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

07115  An Ordinance Amending Ordinance No. 4187, Figure III-1, the Comprehensive Plan Land Use Map to Apply the City’s Station Community Plan Designation to Two Properties Located in Northern Beaverton; CPA2006-0018 (SW Baltic Avenue/SW Barnes Road) (Ordinance No. 4439)

07116  An Ordinance Amending Ordinance No. 4187, Figure III-1, the Comprehensive Plan Land Use Map to Apply a City Plan Designation to 315 Properties, Alter Figures 6.4, 6.5, 6.7, 6.12, and Table 6.6 of the Comprehensive Plan to Designate Future Street Alignments, and Amend Ordinance No. 2050, the Zoning Map to Apply City Zoning to 302 Properties Located in the Elmonica/Merlo Light Rail Station Community Area; CPA2007-0007/ZMA 2007-0006 (Ordinance No. 4440)

07117  An Ordinance Amending Ordinance No. 2050, the Development Code to Modify Section 60.05.55.4, the Merlo Station Community – Major Pedestrian Route Map to Apply Additional Route Designations and Rename the Code Section; TA2007-0003 (Ordinance No. 4441)

Coun. Stanton MOVED, SECONDED by Coun. Doyle, that the ordinances embodied in Agenda Bills 07115, 07116 and 07117, now pass.  Roll call vote.  Couns.  Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)

EXECUTIVE SESSION:

Coun. Bode MOVED, SECONDED by Coun. Stanton, that Council move into executive session in accordance with ORS 192.660(2)(d) to conduct deliberations with the persons designated by the governing body to carry on labor negotiations.  Couns. Arnold, Bode, Dalrymple, Doyle and Stanton voting AYE, the MOTION CARRIED unanimously.  (5:0)

The Council recessed from 9:16 p.m. to 9:25 p.m. to setup for the executive session. 

The executive session convened at 9:25 p.m.

The executive session adjourned at 9:41 p.m.

The regular meeting reconvened at 9:41 p.m.

ADJOURNMENT: 

There being no further business to come before the Council at this time, the meeting was adjourned at 9:41 p.m.

APPROVAL:

Approved this 9th day of July, 2007.

__________________________________
Rob Drake, Mayor