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Minutes - 02/09/2009COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, FEBRUARY 9, 2009. CONVENED. The meeting convened at 7:00 p.m. with Mayor Figley presiding. 0020 ROLL CALL. Mayor Figley Present Councilor Berkey Present Councilor Cox Present Councilor Lonergan Present Councilor McCallum Present Councilor Pugh Present Councilor Schmidt Present Staff Present: City Administrator Derickson, City Attorney Shields, Public Works Director Brown, Acting Police Chief Blevins, Community Development Director Hendryx, Associate Planner Dolenc, Recorder Tennant 0053 ANNOUNCEMENTS. A) City offices and the Library will be closed Monday, February 16, 2009, in observance of President's Day. The Aquatic Center will be opened during normal business hours. 0065 APPOINTMENTS. A) Sign Standards Focus Group: Mayor Figley stated that Councilor Pugh prevailed on her to divide the committee into two committees: (1) a sign specific committee, and (2) one of which would involve a more global look at zoning. She will be talking to those individuals who have already expressed an interest on serving on the Focus Group to determine which of the committees they are more interested in. She also encouraged other members of the community interested in serving on either one of these committees to contact her as soon as possible. B) Mayor Figley also announced that she was appointed to MWACT (Mid-Willamette Area Commission on Transportation) and she is looking forward to pursuing City projects which include the I-5 interchange project. 0132 CHAMBER OF COMMERCE REPORT. Don Judson, Executive Director, stated that branding will be a topic the Chamber will be promoting over the next several months. Woodburn has a destination brand -Always Fresh Discoveries -which was uncovered by Bill Baker of Total Destination Management in a contract partnership with the Chamber and the City. Mr. Baker will be the guest speaker at the Chamber's Forum on Wednesday, February 11th, and he will talk about how he developed the brand with the cooperation of focus groups, interviews, Page 1 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING research, and surveys. On March 13t", the Chamber will host their SSt" Annual Distinguished Service award banquet at Wellspring. Nominations are due February 17`" and the awards will be for Senior First Citizen, Junior First Citizen, Outstanding Farmer, and a Special Recognition Award. In the past, area service clubs have nominated someone and selection committee has picked the award recipient among the service clubs. This year they are inviting all of the service clubs to nominate and recognize their own member of the year. The City-wide clean-up known as Woodburn Proud Day will be held on March 14t" Volunteers will be meeting at Mid-Valley Plaza parking lot at 8:00 a.m. and focus will be made on cleaning up along Highway 99E, Highway 214, and the Mill Creek greenway. He requested that volunteers call the Chamber office prior to the event since they would like to get an approximate number of volunteers in advance of the event. In regards to the Economic Development Task Force, he stated that he had met with Administrator Derickson and Community Development Director Hendryx to review the draft agenda for the first meeting of the task force which will include a guest speaker. 0439 WOODBURN SCHOOL DISTRICT REPORT. Walt Blomberg, Superintendent, stated that their Facilities Task Force Planning Committee has been analyzing growth patterns over the last 5 and 10 years and have been trying to project how many students the district might have over the next 10 to 15 years. The Task Force has been struggling to determine how far to look out in the future for the purpose of student population over the next 10 to 15 years and then look at facility growth to meet the projected needs. The Committee has looked at a 15 year package which would cost approximately $94 million to build two elementary schools, a middle school, and a small high school. They realize how difficult it would be to pass a bond issue of that magnitude especially in this economy but they do not want to lie to the taxpayers about the needs of the district. The School Board will make a decision to put a bond issue on the ballot in May or to wait until next November in hopes that the economy might be better. He stated that the District recently completed a light retrofitting of all their buildings to be more energy efficient using tax credits saved over the last five years to pay for this project. They hope to move onto Phase 2 of this project beginning at the high school which will be more expensive to complete. Superintendent Blomberg stated that the School Board will be discussing as to how they will be making up some inclement weather days. Also, students will be involved in Woodburn Proud including the upcoming clean-up event. Lastly, he stated that the High School Boys Basketball team is tied for ls` place in league play. 0680 CONSENT AGENDA. A) approve the City Council regular and executive session minutes January 26, 2009; B) approve the Planning Commission minutes of December 11, 2008; C) accept the Planning Project Tracking Sheet dated January 29, 2009; D) accept the report on the Accounting of Emergency Expenses; Page 2 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING E) accept the letter regarding the I-5 Interchange Project Federal Appropriations Candidate; and F) approve the Park and Recreation Board workshop minutes of January 13, 2009. Councilor Pugh accepted with regret what the City has been told by the ODOT representative on the status of the I-5 interchange project. He stated that he is not finished with this issue in that what the community has been told and the way it is scheduled by ODOT is totally unacceptable in his opinion. He thanked Mr. Fox for his presentation but does not thank ODOT for their lack of prior communication or the plan they have outlined for the future. MCCALLUM/LONERGAN..... adopt the Consent Agenda as presented. The motion passed unanimously. 0825 PUBLIC HEARING: APPEAL OF CONDITIONAL USE (CU) 2008-01 LOCATED AT 595 NORTH PACIFIC HIGHWAY, Tax Lot 051W17BB09300. Mayor Figley declared the public hearing open at 7:15 p.m.. Mayor Figley stated that she drives by the site daily and she has been looking harder at the site in more recent weeks. Councilor McCallum stated that he has driven by site numerous times and the Benavidez family is familiar to him in that they were in school while he was employed by the School District but feels that he can make a decision based on land use law. Councilor Schmidt stated that he has had ex-parte contact by looking the property over and by stopping to talk to the property owner. He believes that he will be able to issue a fair judgment on this project. Councilor Berkey declared an ex-parte contact since she has worked over the past year with Armando Benavidez Jr. but at no time was their discussion about this issue. Councilor Lonergan stated that he was familar with the site. Recorder Tennant read the Land use statement required under ORS 197.763. Associate Planner Dolenc stated that the applicant, Arnoldo Benavidez, had requested a conditional use for auto parts sales and installation of primarily tires and wheels in an existing building which was developed prior to the adoption of the Woodburn Development Ordinance (WDO) and many site characteristics are non-conforming but permitted to continue under the WDO. The business is currently operating an auto parts without installation and automotive repair and a conditional use is required for auto parts installation. The property is zoned commercial general and surrounded on most of its perimeter by mixed uses of commercial general zoned property with two residential lots abutting on the northwest corner of the property. He stated that the Planning Commission had unanimously approved a conditional use with conditions and this decision has been appealed to the Council by Margarita Benavidez for a public hearing raising 11 points of appeal. 1500 Associate Planner Dolenc reviewed the follolwing 11 points of appeal: # 1) Use of the property for automobile maintenance and repair is a nonconforming use under the WDO. It was noted that the use of the property for auto repair existed prior to Page 3 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING current zoning standards and may continue until it is terminated. #2) The proposed use will expand the nonconfarming use in violation of the WDO. Planner Dolenc stated that the conditional use does not involve the expansion or addition to buildings or structures and the proposed conditional use is not precluded by the WDO. #3, #4, #5, #7, and #10) These points of appeal deal with off-street parking, buffer walls, landscaping, access, and refuse. He stated that all of these items are non- conforming to the current code and are also regulated by the same section of the development ordinance. Since the proposed conditional use does not expand the building, it is not subject to a Design Review therefore any nonconforming parking, loading, landscaping, buffer walls, and refuse facilities would only need to be brought into conformity through a Design Review process and not a Conditional Use process. #6) The proposed use does not provide for the dedication of utility easements. Planner Dolenc stated that the site is served by existing utilities and the dedication of a public utility easement is not necessary for approval of this conditional use. #8) The proposed use does not meet the design standards of WDO 3.107. It was noted that the WDO does not require the nonconforming architecture of the building be brought into conformance through the conditional use process. #9) The applicant is currently displaying an illegal sign for the business. Planner Dolenc stated that there is a fairly large sign on the property which is a temporary sign which has been established pursuant to the applicant's obtaining a temporary sign permit. Therefore, the sign currently in place is not an illegal sign. He stated that one of the conditions imposed by the Planning Commission is that the existing pole sign be brought into conformity either by being removed or converted into a monument sign that would conform to Section 3.110. # 11) The proposed use shall be compatible with the surrounding properties. He stated that there is a list of relevant factors to be considered in determining whether the proposed use is compatible. He stated that these are not mandatory standards but are factors to be considered when making a decision. These factors include size, shape, location and topography of the site; capacity of public water, sewerage, drainage, street and pedestrian facilities serving the proposed use; impact of the proposed use on the quality of the living environment; conformance of the proposed use with applicable Comprehensive Plan policies; and the suitability of proposed conditions of approval to insure compatibility of the proposed use with other uses in the vicinity. Planner Dolenc reviewed each of these factors and staff concludes that the proposed use either meets the requirements of the WDO or is nonconforming which is permitted to continue subject to WDO 1.104. Staff is recommending that (1) the Planning Commission's decision be upheld and approve Conditional Use case CU 2008-01 subject to the conditions of approval in the staff report and (2) deny the appeal of case CU 2008-01. Planner Dolenc stated that the following four conditions of approval are recommended to insure compatibility with surrounding properties: 1. Property owner shall execute an acceptance of these conditions on a form provided by the City; Page 4 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE RF.AI~TN('T 2. Property owner shall develop and maintain the subject property in accordance with all provisions of the WDO whether or not addressed in the staff review, conditions of approval, or public hearing; 3. Property shall be developed in substantial conformity to the plans attached as Exhibits A and B of the staff report except as modified by these conditions of approval; and 4. Property owner shall remove the existing pole sign in front of the building or convert it to a conforming monument sign. Councilor Pugh questioned what the present plan is for the old structure. Planner Dolenc stated that the structure is being re-used as is and the property owner has painted the building and made some interior modifications but the building will remain essentially as is. Councilor Cox questioned the difference between non-conforming use as compared to non-conforming conditions on a piece of property such as conditions related to the structure and landscaping. Planner Dolenc stated that anon-conforming use is a case in which the use of the property is changed from its original use but has some rights to continue due because of a vested property right to continue the use of the property even though it does not conform to the current standards. An example of anon-conforming building would be a situation where a building is built before zoning standards were established, however, those standards have since changed. The building would have non-conforming rights to continue in its in current location as built unless some other action was taken to terminate that use. 2440 Community Development Director Hendryx stated that the WDO has some provisions if a business with anon-conforming use stops for a period of 6 months, then it ceases to have its non-conformity. Likewise, the WDO code says that if there are non-conforming site characteristics such as setbacks or parking standards then additions to the building would require bringing up the whole site to the current code standards. He stated that those are similar standards that provisions that other jurisdictions have that he has operated in. Councilor Cox stated that his understanding is that if the use, such as a tire shop, is non- conforming and stops for consecutive 6 months, then the owner has lost the right. However, if the building or property is otherwise non-conforming in some of the other characteristics, they are allowed to continue even though the use, such as a tire shop, would have stopped for 6 months. The continuance of the use only affects the continuation of the permission for the non-conforming use and the property could be vacant for a couple of years and the owner would still not be precluded from continuing if it was anon-conforming characteristic. Planner Dolenc stated that Councilor Cox correctly summarized the difference between non-conforming use and non-conforming characteristics. Councilor Cox questioned if there was a difference in terms of permitted uses between (1) sale and installation of auto parts and (2) automotive repairs, and, for the purpose of this appeal, does it make any difference which label is used. Page 5 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING Director Hendryx stated that the WDO establishes uses and it has a differentiation between sales of parts which are allowed in a category and conditionally an applicant would have to go through the process if parts are installed. Councilor Cox stated that he understands the difference but questioned if, for purpose of the WDO, sale with installation of parts is the same thing as automotive repair. Planner Dolenc stated that parts dealers with installation are listed separately from automotive maintenance in the WDO. Director Hendryx stated that both the maintenance of a vehicle and the installation of parts require a conditional use with the same basic standards. The complicated part is that there was a parts auto repair business at the subject site whereas they are now installing different categories -parts - which requires a new conditional use. Councilor Lonergan questioned if fuel tanks are still on site to where the applicant could sell fuel. Planner Dolenc stated that he was unsure if there were still tanks at the sight since he did not see any evidence of fuel tanks remaining. In regards to the business sign, he stated that the applicant can either remove the pole sign or convert it into a monument sign but whichever method is used needs to conform to the current sign code. 3115 Arnold Benavidez, applicant, requested that the Council deny the appeal. Jake Jacobsen, local businessman speaking on behalf of and support of Arnold Benavidez, his family, his business, and his deceased brother Armando. The appellant is Margarita Enrique Benavidez who had been married to Armando Benavidez. He stated that he is appealling to the Council that the request for the motion for appeal be denied on the following reasons: 1) appellant actions is not based on any violation of the WDO but an act of vengance against the applicant and is further driven by a contested probate case currently in Marion County Court; and 2) conditional use approved by the Planning Commission had received thorough examination by the Commission. He stated that the appellant and her attorney are taking action to further disrupt the life of Arnold Benavidez, his family, and his business. He mentioned that the appellant's counsel has mentioned to him that he has tried to get the issue settled without having legal issues brought forth and the appellant's attorney stated that it was the appellant's desire to ruin Mr. Arnold Benavidez and take his personal assets and business away from him. Additionally, he would stop at nothing in an attempt to tie Mr. Benavidez up in court if it took one appeal after another until the money runs out. The appellant has promised payment to her attorney with the assets of an estate that has not been settled. He stated that the conditional use permit was recommended for approval at the staff level in January and the Planning Commission heard the application and approved it unanimously. He requested that the appeal be denied. 3567 Don Judson stated that neither of the parties in this case are members of the Chamber and he is not speaking as a Chamber representative. In his personal opinion, the items listed on this appeal have nothing to do with any fidelity to the zoning code. All the appellant wants to do is stifle competition in that they are afraid of another store opening up across the street with better service. He urged the Council to strongly deny this appeal and their Page 6 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING attempt to use the City's laws for personal gain. Kevin Kenagy, Planning Commission member, stated that he had met the Benavidez family about a month ago, however, being a Planning Commission member has nothing to do with why he is testifying at this hearing. In his opinion, Mr. Benavidez is a good business and family man and urged the Council to deny the appeal. Daniel Adkinson, attorney for Margarita Benavidez, stated that this appeal is about properly applying the zoning code. He stated that staff had done a good job of analyzing the appeal, however, he disagreed with staff on the following key points: 1) Grandfather non-conforming use: He agreed with staff's analysis that it has been well-established that it is grandfathered, however, it cannot be expanded and approving the tire installation will expand the auto repair business. 2) Ability to consider non-conforming developments being brought into conformance: He stated that they have raised issues about the parking area, driveway, setbacks, buffer with the residential zone, and refuse collection facilities. He stated that these are non- conforming to the zoning code and staff has concluded that, with this application, they cannot be brought up to code. He disagreed with staff and referred to criteria 2 of the conditional use provision which states that "...the use shall comply with the development standards of the zone..." and the commercial zone standards are specifically defined. 3965 Councilor Cox stated that the point made by Mr. Adkinson was that the WDO requires, when granting a conditional use, it shall comply with the development standards of the zone. He questioned how staff would distinguish that statement from the idea that, in many respects, this building because of its age does not comply with some of the standards required for a new building. Planner Dolenc stated that the conditional use criteria referenced the zone standards which then refers to another section of the code that would, at first glance, look like the applicant would have to comply with everything. However, Section 1.104- Non Conformities -are recognized and protected as vested rights and it is staff's belief that the regulations need to be read with Section 1.104 in mind when applying the various standards. Director Hendryx stated that the other provision is that design review standards would come into play if an expansion of the building is involved then bringing up the standards would be required. Councilor Cox questioned City Attorney Shields if he felt comfortable with a tenable basis for arguing that staff s interpretation is defendable if this appeal ends up in LUBA (Land Use Board of Appeals). City Attorney Shields stated that he has discussed this issue with staff and feels that it is a defensible interpretation of the WDO in that the design review is not invoked in this case and he is legally comfortable with the interpretation of the City's code. Mayor Figley closed the public hearing at 8:08 pm. COX/MCCALLUM.... deny the appeal and uphold granting of a conditional use subject to the same terms of conditions the Planning Commission findings as recommended in Page 7 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING the staff report, and Council request the appropriate resolution be brought back at the next meeting to substantiate that decision. Councilor Lonergan expressed his feeling that the Planning Commission gave the application due diligence. He appreciated staff s work in looking at both sides of this issue and felt that they presented a very good staff report. Councilor Schmidt agreed with comments made by Councilor Lonergan. Councilor McCallum concurred with comments made by the other Councilors and stated that the Council's decision needs to be made on land use laws and the WDO. Mayor Figley also thanked staff for a very clear presentation that answered questions she had on this topic. Councilor Pugh reiterated that the Council must comply with the law and how it is interpreted. He felt that this had been a fair and realistic addition to what he has already studied and support the motion made by Councilor Cox. The motion passed unanimously. 5012 COUNCIL BILL N0.2763 -RESOLUTION AUTHORIZING THE TRANSFER OF OPERATING CONTINGENCY APPROPRIATIONS DURING FISCAL YEAR 2008-09. Council Bill No. 2763 was introduced by Councilor McCallum. Recorder Tennant read the bill by title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill No. 2763 duly passed. 5143 APPROPRIATIONS REQUEST FROM OREGON HOUSE DELAGATION FOR FISCAL YEAR 2010. Administrator Derickson stated that he had received a telephone call from Congressman Kurt Schrader's office inquiring as to whether or not the City would be interested in submitting a congressional allocation request form for the I-5 interchange project or other transportation projects the City might be interested in. It is his understanding that this would coincide with the Oregon Transportation Commission's support of a congressional allocation for the interchange project. He requested that the Council approve the submission of the form which will then be forwarded to Congressman 5chrader's office for inclusion into their process for determining whether or not to support the request for allocation of resources to fund the project. Councilor Pugh questioned if this is tied in with the present economic stimulus package before Congress or is this a separate funding allocation. Administrator Derickson stated that this is not part of the federal economic stimulus package rather it is part of the normal Congressional earmark process that every Congressman and Senator goes through annually for advocacy for projects across the country. He reminded the Council that the stimulus package may not be available for the interchange project because of the definition of shovel ready. Even with the State stimulus package, they exclude the I-5 improvement project because of their shovel ready Page 8 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING definition. Councilor Lonergan questioned if staff knew how many allocation requests were sent out to communities throughout the State. Administrator Derickson stated that the Congressional earmark process has been subject to debate over the last couple of years and it is hoped that those projects that are imposing costs in our community that are a result of federal regulations or which would improve the regional economy would not be considered wasteful but would be considered beneficial and a way to offset the expense of federal legislation to our local citizens. PUGH/COX..... approve the submission of the Congressional Allocation Request form to Representative Kurt Schrader's office. The motion passed unanimously. 5704 OLCC LIOUOR LICENSE RENEWALS FOR 2009. Staff recommended the liquor license renewals for the following business establishments within the City: Off Premise Sales: 7-Eleven, Bi-Mart Corp., Dos Arbolitos Musica Latina, Gary's Market, La Azteca, Pipers Jewelry, Safeway Store #1976, Su Casa Imports, US Market # 109, Woodburn Fast Serve Inc., Woodburn Shop N Kart, Your Northwest, A & J Market, Crossroads Grocery & Deli, EZ Stop Grocery & Deli, Harry and David #595, O'Donnell Enterprises, Roadrunner V Woodburn, Salvador's Bakery, The Bistro at Wellspring, Wal Mart Supercenter, Woodburn Grocery Outlet, Young Street Market, Woodburn Stop N Go Full On Premise Sales: Bill O Deli Pub, Cinco De Mayo Taqueria, Eagles Lodge, Elmer's Restaurant, Los Cabos Mexican Restaurant, Margaritas, Rumor's Bar and Grill, Senior Estates Golf & Country Club, The Raven Inn, El Dorado, Casa Marquez Mexican Grill, Denny's at Woodburn, Elks Lodge, Happy Garden Buffet, Lupita's, OGA Members Course, The Bistro at Wellspring, The End Zone, Yun Wah Limited On-Premise Sales: 7 Mares Restaurant, Cactus Grill Taqueria & Restaurant, Mariscos El Sarandeado, Nuevo Arandas, Salvador's Bakery, Taqueria Guadalajara, Abby's Pizza Inn of Woodburn, DEDE's Deli, Mugsy's Bagels, Pizza Hut, Shari's of Woodburn, Woodburn Lanes Councilor Cox requested that staff call to OLCC's attention that Billy O Deli Pub is no longer in business and the Council had approved a different licensee for that location last fall. Acting Chief Blevins stated that he would check into that situation. LONERGAN/MCCALLUM.... recommend to OLCC renewal of liquor licenses for 2009 listed in staff report with the question on the status of the Billy O Deli Pub license. The motion passed unanimously. Page 9 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING 5922 CITY ADMINISTRATOR'S REPORT. A) Administrator Derickson stated that the federal economic stimulus package is still being worked on and he felt that it was important that the City have representation on the interests of Woodburn and the interchange project when some of these decisions are being made at the federal level. He proposed that the Council consider sending a delegate to coincide with Marion County's visit to Washington , D.C., with their lobbyists to lobby the City's Congressional delegation on the interests of the Oregon Transportation Committee's letter and recommendation of what is now about half of the funding for the project along with the Congressional earmark that the Council approved earlier in this meeting. He stated that his past experience has been fruitful when you show up and talk to those making the decisions and his recommendation is that the Mayor be designated and the City send her to Washington, D.C., to lobby for the interchange project to obtain support from Oregon Senators and Representatives. 6613 PUGH/MCCALLUM.... accept Administrator Derickson's suggestion to send a delegate to Washington D.C. to discuss with Congressman Schraeder and lobby for a program to set the City's I-5 interchange project in motion. Mayor Figley stated that she is willing to go and staff is trying to get in touch with Marion County Commissioner Brentano to see if it would be most effective for her to go about the same time, before, or after he is in Washington, D.C.. The motion passed unanimously. 6781 MAYOR AND COUNCIL REPORTS. Councilor Schmidt stated that he had received an invitation from the Marion County Public Safety Coordinating Council for a demonstration on deadly use of force. Tape 2 Acting Chief Blevins stated that the Coordinating Council will be putting on a demonstration at the Police Academy utilizing an interactive video where an officer can be confronted by a armed suspect and the officer can make the call as to what to do in the situation. The Police Department has invited some business owners and other individuals in the community to attend the demonstration. This is the first demonstration the Coordinating Council has organized on use of deadly force and they plan on having this demonstration at least annually. Councilor Schmidt stated that he had the honor of riding with a police officer last Friday and reported that he was very pleased with the training our police officers have had and how proud he is of the department. Mayor Figley stated that she watched the installation of the gazebo at the Downtown Plaza last Saturday and she is looking forward to having the roof completed and that piece of the Urban renewal project completed. Page 10 -Council Meeting Minutes, February 9, 2009 COUNCIL MEETING MINUTES FEBRUARY 9, 2009 TAPE READING 0169 ADJOURNMENT. LONERGAN/MCCALLUM .... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 8:33 p.m.. ATTEST ~~ ~' /~ Mary T ant, Recorder City of Woodburn, Oregon Page 11 -Council Meeting Minutes, February 9, 2009