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Agenda - 11/08/2004 WOODBURN CITY COUNCIL AGENDA NOVEMBER 8, 2004 - 7:00 P.M. 1. CALL TO ORDER AND FLAG SALUTE 2. ROLL CALL 3. ANNOUNCEMENTS AND APPOINTMENTS Announcements: A. City Hall and the Woodburn Public Library will be closed Thursday, November 11,2004, in observance of Veteran's Day. The Aquatic Center will be open. B. The regularly scheduled Planning Commission meetings of November 11 and 25. 2004 have been cancelled due to holidays. There will be a work session on November 10, 2004, at 7:00 p.m. in the City Hall Conference Room and a special meeting on November 18, 2004 at 7:00 p.m. in the Council Chambers. C. "Flick N Float" will be held on November 12, 2004, from 7:00 to 9:30 p.m. Come relax in the pool while watching Shrek 2. D. The Aquatic Center will be closed on November 20,2004 for a swim meet. E. In observance of Thanksgiving, City Hall will be closed on November 25 and 26, 2004. The Woodburn Public Library and the Aquatic Center will be closed on November 25th only. Appointments: None. .'Habra interpretes ~isponibles para aquellas personas que no bablan Ingles, previo acuer~o. Comunlquese al (503) 980-2485:' November 8, 2004 Council Agenda Page i ''111- T 4. PROCLAMATIONS/PRESENTATIONS Proclamations: None. Presentations: A. Dusky Stayert, Teen Scene Coordinator B. Tom Tennant, Police Captain C. Acknowledgement - Steve Krieg, Building Division 5. COMMITTEE REPORTS A. Chamber of Commerce B. Woodburn Downtown Association 6. COMMUNICATIONS None. 7. BUSINESS FROM THE PUBLIC - This allows the public to introduce items for Council consideration not already scheduled on the agenda. 8. CONSENT AGENDA - Items listed on the consent agenda are considered routine and may be enacted by one motion. Any item may be removed for discussion at the request of a Council member. A. Woodburn City Council minutes of October 25, 2004, regular 1 and executive sessions Recommended Action: Approve the minutes. B. Woodburn Planning Commission minutes of October 14, 2004 7 Recommended Action: Accept the minutes. C. Park Avenue and Highway 214 Intersection Recommended Action: Accept the report. 12 D. Building Activity for October 2004 Recommended Action: Accept the report. 14 E. Planning Tracking Sheet dated October 29, 2004 Recommended Action: Accept the report. 15 November 8, 2004 Council Agenda Page ii l' T F. Annual Review of the Woodburn Development Ordinance Recommended Action: Accept the report. 20 9. TABLED BUSINESS None. 10. PUBLIC HEARINGS A. Northwest Natural Gas Company Franchise 22 Recommended Action: Conduct a public hearing regarding a franchise with Northwest Natural Gas Company, and provide staff with direction, as appropriate, regarding an ordinance approving a franchise. 11. GENERAL BUSINESS - Members of the public wishing to comment on items of general business must complete and submit a speaker's card to the City Recorder prior to commencing this portion of the Council's agenda. Comment time may be limited by Mayoral prerogative. A. Council Bill No. 2541 - Ordinance granting a non-exclusive gas 23 utility franchise to Northwest Natural Gas Company, and fixing terms, conditions and compensation of such franchise Recommended Action: Adopt the ordinance. B. Council Bill No. 2542 - Ordinance amending Ordinance 2060 45 (the Woodburn Park Ordinance) to modify the park exclusion process and declaring an emergency Recommended Action: Adopt the ordinance. C. Liquor License - New Outlet 58 Recommended Action: Recommend that the Oregon Liquor Control Commission approve a liquor license application for The Bunker Bar & Grill Inc. 12. NEW BUSINESS 13. PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS - These are Planning Commission or Administrative Land Use actions that may be called up by the City Council. A. Planning Commission's Approval of Planned Unit Development 63 04-04 (Hazelnut/Miller Farm PUD) B. Planning Commission's Approval of Design Review 04-17 and 66 November 8, 2004 Council Agenda Page iii " T Variance 04-24 (965 and 1025 N. Boones Ferry Road) C. Planning Commission's Approval of Conditional Use 04-09 68 (1741 Mt. Hood Avenue) 14. CITY ADMINISTRATOR'S REPORT A. Sale of Property to Habitat for Humanity 15. MAYOR AND COUNCIL REPORTS 16. EXECUTIVE SESSION A. To consult with counsel concerning the legal rights and duties of a public body with regard to current litigation or litigation likely to be filed pursuant to ORS 192.660 (1 )(h). B. To consider records that are exempt by law from public inspection pursuant to ORS 192.660 (1) (f). 17. ADJOURNMENT November 8, 2004 Council Agenda Pageiv .." T SA COUNCIL MEETING MINUTES OCTOBER 25, 2004 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, OCTOBER 25,2004. CONVENED. The meeting convened at 7:00 p.m. with Mayor Figley presiding. 0005 ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Present Present Present Present Present Absent Staff Present: City Administrator Brown, City Attorney Shields, Public Works Director Tiwari, Police Chief Russell, Community Development Director Mulder, Park & Recreation Director Westrick, Recorder Tennant Mayor Figley stated that Councilor Sifuentez was not in attendance due to illness. 0060 ANNOUNCEMENTS. A) November 2, 2004 General Election: City Hall is a designated Marion County ballot drop site during regular City business hours, however, the City Hall lobby will be open on Election Day until 8:00 p.m.. B) Aquatic Center is closed for annual maintenance beginning October 24, 2004 and will re-open with the regular Monday schedule on November 1, 2004. 0140 CONSENT AGENDA. A) approve the regular and executive session Council minutes of October 11, 2004; B) approve the Council work session minutes of September 20, 2004; C) accept the Recreation and Parks Board draft minutes of October 12, 2004; D) accept the Planning Commission minutes of September 9, 2004; E) accept the Library Board minutes of October 13, 2004; F) accept the Aquatic Center Revenue Comparison report; G) accept the Claims for September 2004; and H) accept the Police Department Statistics for August and September 2004. NICHOLS/MCCALLUM... adopt the consent agenda as presented. The motion passed unanimously. Page 1 - Council Meeting Minutes, October 25, 2004 1 .. yo COUNCIL MEETING MINUTES OCTOBER 25, 2004 TAPE READING 0202 PUBLIC HEARING: CONTINUATION OF NORTHWEST NATURAL GAS FRANCHISE HEARING. Mayor Figley opened the continued public hearing at 7:07 p.m.. BJELLAND/COX... continue the public hearing regarding Northwest Natural Gas Company's franchise agreement until the Council's regular meeting of November 8, 2004. The motion passed unanimously. 0233 PUBLIC HEARING: SUPPLEMENTAL BUDGET FOR FISCAL YEAR 2004-05 CONTINGENCY TRANSFERS. Mayor Figley declared the public hearing open at 7:08 p.m.. Administrator Brown stated that staff had requested a budget transfer from the General Fund Contingency Fund at the last meeting which allowed the City to purchase a parcel of land at 175 S. First Street. It was intended to use Housing Rehabilitation revolving loan funds through the Community Development Block Grant Fund, howeve, due to timing of the closure of the sale, a Resolution was adopted by the Council to allow for the transfer of General Fund operating contingency funds to the Parks capital outlay fund in order pay for the property at the time of closing. A public hearing notice has been published for this meeting summarizing proposed budget adjustments allowing for the expenditure to be made from the Housing Rehabilitation Fund by transferring operating contingency appropriations within that fund into a capital outlay line item within that same fund. Additionally, the expenditure originally authorized by the Council will be reversed within the General Fund. No one in the audience spoke either for or against the proposed supplemental budget. Mayor Figley declared the public hearing closed at 7:09 p.m.. COX/NICHOLS... direct staffto prepare an ordinance to substantiate its decision. The motion passed unanimously. 0376 COUNCIL BILL NO. 2538 - ORDINANCE ADOPTING A SUPPLEMENTAL BUDGET FOR FISCAL YEAR 2004-05. Councilor Cox introduced Council Bil12538. Recorder Tennant read the two readings of 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 2538 duly passed with the emergency clause. Page 2 - Council Meeting Minutes, October 25, 2004 2 ..". l' COUNCIL MEETING MINUTES OCTOBER 25, 2004 TAPE READING 0466 COUNCIL BILL NO. 2539 - ORDINANCE ANNEXING PROPERTY INTO THE CITY LOCATED SOUTH OF SMITH DRIVE: GRANTING ZONE CHANGE FROM MARION COUNTY UTF TO CITY P/SP ZONE: AND APPROVING PERMIT APPLICATIONS 04-02 AND 04-03. Council Bill 2539 was introduced by Councilor Cox. The two readings of the bill were read 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 2539 duly passed. 0575 COUNCIL BILL NO. 2540 - RESOLUTION ENDORSING A FEASIBILITY APPLICATION TO THE SALVATION ARMY TO CONSTRUCT A RAY AND JOAN KROC CORPS COMMUNITY CENTER IN WOODBURN. Councilor Cox introduced Council Bill 2540. The bill was read by title only since there were no objections from the Council. Councilor Cox stated that the resolution was fine but wished there was some way the Council could further emphasize how much the Council would like to have this facility in Woodburn. On roll call vote, the bill passed unanimously. Mayor Figley declared Council Bill 2540 duly passed. 0638 OLCC LIOUOR LICENSE - BILLY 0 DELI & PUB. 2267 Country Club Road. A Limited on Premise Sales liquor license application was submitted by Kim Parsons and Lily Olinger DBA: Billy 0 Deli & Pub (formerly the Courtyard Cafe). This license will allow for malt beverages and wine for consumption at this establishment and the owners will be providing recorded music as entertainment along with lottery machines and pool tables. BJELLAND/COX... recommend to the Oregon Liquor Control Commission approval of a liquor license application for Billy 0 Deli & Pub, formerly the Courtyard Cafe, mc.. City Attorney Shields stated that Councilor Nichols had advised him prior to the meeting that, until very recently, he had an interest in the subject property. He advised him that, even though it is the Ethics Commission that makes the decision, to be conservative he should declare an actual conflict of interest. If declared, then any vote taken would not include Councilor Nichols just as ifhe was not in attendance at this meeting. Councilor Nichols declared a conflict of interest and stated that it was the former property that he had some interest in and not the present property. Councilor McCallum stated that the materials did not indicate that any comments had been received from businesses in the area. He questioned how the businesses are notified that a transfer or license application was being submitted. Chief Russell stated that OLCC is supposed to post and notice the application per state statute, however, he does not know if or by what method it was done since it is handled by GLCe. Page 3 - Council Meeting Minutes, October 25,2004 3 '. Y' COUNCIL MEETING MINUTES OCTOBER 25, 2004 TAPE READING Councilor McCallum questioned ifthis was a restaurant classification since there were going to be lottery games and pool tables at the business. Chief Russell stated that restaurants and taverns are now all under the same license type. The motion passed 3-1 with Councilor McCallum voting nay. 0828 LETTER TO MARION COUNTY COMMISSIONERS. COX/NICHOLS... approve the draft of the letter and authorize the Mayor to sign the letter regarding the City's coordinated population projection. The motion passed unanimously. Mayor Figley stated that she will gladly sign the letter since it bases planning on facts and not wishful thinking. 0871 PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS. A) Community Development Director's approval of Design Review 04-14 (689 N. Front Street): Installation of two doors and fabric awning. Councilor Cox stated that he did not have a desire to bring this item up for review, however, he suggested that the department's report provide enough identifying information so that the Council can tell where it is located at without having to drive out to the location. 0947 MAYOR AND COUNCIL REPORTS. Councilor Nichols questioned if the State (ODOT) would be doing anything about the weed patch along Highway 214 near the High School. Director Tiwari stated that he will look into the matter and report back at the next Council meeting. Councilor McCallum complimented Chief Russell and the other individuals who put together the Community Conversation on methamphetamine. He stated that Chief Russell made an excellent presentation at this meeting. Councilor McCallum also questioned if the City had received any report back from ODOT on the concerns relating to Park Avenue and Highway 99E. Administrator Brown stated that ODOT had not provided any information to the City as of this date. 1060 EXECUTIVE SESSION. Mayor Figley entertained a motion to adjourn into executive session under the authority of ORS 192.660( 1)( e) relating to property acquisition. NICHOLS/MCCALLUM... adjourn to executive session under the statutory authority cited by the Mayor. The motion passed unanimously. The Council adjourned into executive session at 7:22 p.m. and reconvened the meeting at 7:28 p.m.. Page 4 - Council Meeting Minutes, October 25, 2004 4 ." T" COUNCIL MEETING MINUTES OCTOBER 25, 2004 TAPE READING 1106 Mayor Figley stated that no action was taken by the Council while in executive session. 1130 ADJOURNMENT. MCCALLUM/BJELLAND... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 7:29 p.m. APPROVED KATHRYN FIGLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page 5 - Council Meeting Minutes, October 25,2004 5 " , Executive Session COUNCIL MEETING MINUTES October 25, 2004 DATE. CONFERENCE ROOM, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, OCTOBER 25,2004. CONVENED. The Council met in executive session at 7:24 p.m. with Mayor Figley presiding. ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Present Present Present Present Present Absent Mayor Figley reminded the Councilors and staff that information discussed in executive session is not to be discussed with the public. Staff Present: City Administrator Brown, City Attorney Shields, Public Works Director Tiwari, City Recorder Tennant Press: John Gervais, Woodburn Independent The executive session was called under the authority ofORS 192.660(1)(e) to conduct deliberations with persons designated by the governing body to negotiate real property transactions. ADJOURNMENT. The executive session adjourned at 7:27 p.m.. APPROVED KATHRYN FIGLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page 1 - Executive Session, Council Meeting Minutes, October 25,2004 6 ..". l' 8B WOODBURN PLANNING COMMISSION October 14, 2004 CONVENED The Planning Commission met in a regular session at 7:00 p.m. in City Hall Council Chambers with Chairperson Lima presiding. ROLL CALL Chairperson Vice Chairperson Commissioner Commissioner Commissioner Commissioner Lima Young Vancil Grigorieff Knoles Bandelow P P A P P P Staff Present: Jim Mulder, Community Development Director Jason Richling, Associate Planner MINUTES A. Woodburn Plannina Commission Minutes of SeDtember 9, 2004 Commissioner Bandelow moved to accept the minutes as presented. Commissioner Griaorieff seconded the motion, which unanimously carried. BUSINESS FROM THE AUDIENCE None COMMUNICATIONS A. Woodburn City Council Minutes of Auaust 23. 2004 B. Woodburn City Council Minutes of September 13.2004 ChairDerson Lima thanked the Mayor for mentioning at the last Council meeting that there is an opening on the Planning Commission. He also encouraged anyone who would like to donate some time to the community to apply for the vacant Commission position. PUBLIC HEARING A. Planned Unit Development 04-04. reauest to modify Miller Farm Planned Unit DeveloDment to consolidate 4 lots Into 3 lots. Nancy Piatkoff. aDDlicant. EXPARTE CONTACTS Commissioner Knoles excused himself from this hearing because of potential conflicts with his residence and also as president of that Homeowner's Association. Staff read the applicable ORS Statement and provided a presentation as reflected in the Staff Report. Staff recommended approval of the proposal based on the information in the Staff Report, the information provided by the applicant and the applicable review criteria subject to the conditions of approval contained in the Staff Report. TESTIMONY BY THE APPLICANT Nancv Piatkoff. 1534 Rock Ledae Dr.. Keizer. OR 97303 supported Staff's recommendation and indicated she was available for any questions. TESTIMONY BY PROPONENTS None Planning Commission Meeting - October 14, 2004 Page 1 of 5 7 l' T TESTIMONY BY OPPONENTS None DISCUSSION Chairoerson Lima closed the public hearing and opened discussion among the Commissioners. Vice Chairoerson Young indicated it is unusual to have a consolidation of lots rather than dividing into more lots and he thought this was a good plan. Additionally, he noted the applicant is willing to comply with all of the conditions of approval and he did not see any reasons why the application should not be approved. Commissioner Griaorieff and Commissioner Bandelow agreed with Vice Chairperson Young. Commissioner Bandelow made a motion to approve PUD 04-04 and instructed Staff return with facts and findings to support that. Commissioner Grigorieff seconded the motion. Motion carried unanimously. B. Conditional Use 04-09. establish a Pay Day loan business at 1655 Mt. Hood Ave.. Mid-Valley Plaza. LLC. aDDllcant. Staff read the applicable ORS Statement and a presentation was provided as reflected in the Staff Report. The applicant met all of the applicable requirements of the WOO and Staff recommended approval of the proposal. Commissioner Bandelow inquired what zoning in Woodburn could this type of business go without having to apply through a Conditional Use? . Staff responded there is no zone that allows it without a Conditional Use. He explained these were not allowed in the Commercial General zone and were prohibited in the downtown district. The decision was made to not allow them in the downtown district but to allow them as a Conditional Use in the General Commercial district. Staff also noted he was unsure as to the reasoning but he reiterated this was the policy direction developed through the development of that ordinance. Commissioner Bandelow further commented it did not seem like there should be a legitimate business that would not have a location within the City and that they would have to pay a fee. Staff pointed out a Conditional Use does not prohibit it but it gives the Planning Commission the discretion to decide whether that specific location is an appropriate location for that type of use. He indicated for this type of use it had more to do with what happened in the downtown area historically, which predates him coming to the City about five years ago. Staff remarked there was some sort of proliferation of those types of businesses going downtown which came to the City Council's attention. It is his understanding that the City Council then directed Staff to process a code amendment to prohibit those downtown not because they did not want them at all in the City but there seemed to be an over concentration of them downtown. That same line of thinking carried over to the new Development Ordinance to require them to be a conditional use so that if there were an over concentration of this type of business, the Commission would have the discretion to deny one or more. Staff explained the Conditional Use application fee is based on the average cost of reviewing an application and includes the process of reviewing, notification and writing fairly lengthy Staff Reports. Commissioner Bandelow asked if we have other types of businesses that are only allowed as a Conditional Use? Staff replied he was unsure and would have to look at the code. TESTIMONY BY THE APPLICANT Ed Murohv. Ed Murohv Associates. 9875 SW Murdock St.. Tigard. OR 97224 stated he represented Advance America. He commented these businesses are attractive, modern, clean and efficient not like most of this type of business where they are unattractive, sort of seedy and tacky looking. Mr. Murphy further remarked he agreed with the Staff Report and noted this business is a low impact use with no exterior modifications. Planning Commission Meeting - October 14, 2004 Page 2 of 5 8 'W' T Additionally, it uses less parking and generates less traffic than the previous use of this space. It complies with all of the Woodburn Development Ordinance standards, meets all of the approval criteria and it is compatible with the surrounding properties. Mr. Murphy pointed out the business hours of 9 am to 7 pm listed in the report should reflect 10 am to 6 pm, Monday through Friday and between 10 am through 3 pm on Saturday. Commissioner Griaorieff asked what exactly does Advance America do? TESTIMONY BY PROPONENTS David Miller. Advance America. Director of Ooeration for the Greater Portland Area. 20737 SW Ravens Wood St.. Beaverton. OR explained Advance America advances for payday if someone goes from paycheck to paycheck. If they have a bump in the road whether they have a doctor's bill etc., Advance America gives them an advance until their next payday. They are issued a check where they can go cash it at their bank or the bank Advance America banks with and then they will come in and return the money. Commissioner Griaorieff further questioned whether they feel that Woodburn is able to support a business like this since we do have cashier businesses and banks? She also asked about security. David Miller stated they have over 2,000 locations all across the United States. He further indicated a lot of their base clientele prefer to use them because when they are in a pinch, it is a lot easier to go with them because all they need is a drivers license, a pay stub and a bank statement, and they will be in and out with a customer service in about 10 minutes. Whereas, if someone goes to a bank they actually have to fill out a full application which takes 24-48 hours for a credit report and some good people might not necessarily have good credit where their bank or credit union is going to award them the money. Advance America goes based off of if you have a job and a bank statement they are going to advance them money. Mr. Miller explained they have a security system with cameras inside the branch. Unlike some payday loans or check cashing places where they carry a high volume of money, they carry a very low volume of money because they issue checks. They do have a very good security system but as far as any situations of theft, it does not really occur because they have no money on the premises. Additionally, their branches are very inviting aesthetically and inviting to the customer. Chairoerson Lima questioned how many employees will they have and what number of clients do they expect on a daily basis? David Miller answered each branch has two employees. They expect clientele on a daily basis to be low because since they go on a payday type of system you will see a few days where people come and go throughout the day and there will be a few days when it is not a payday that it will be slow. Usually the entire branch might have anywhere from 40 to 100 people but it is steady going throughout a 14-day cycle. TESTIMONY BY OPPONENTS Sara Seabrina. 1128 54th St.. Washouaal. WA stated she is the Regional Director for Advance America. She indicated they had brochures available to the Commission that explain the facts of what a cash advance company does and is. Mark Wolf, 654 Tukwila Dr.. Woodburn. OR 97071 said he did not know these people but he certainly knew of them. He has Advance America in shopping centers of his in Bellevue, WA and Edmonds, WA both upscale centers and upscale communities. He stated they are wonderful tenants and they do serve a community need. Mr. Wolf indicated he did not recall going through a Conditional Use process for the Check Cash Northwest which is identical to what Advance America does. Mr. Wolf noted it has been wonderful working with Mr. Mulder and his staff the last few months on the shopping center. He reported he made the deal with Advance America earlier this year and not recognizing that it was a Conditional Use process, they signed the lease in February and have been paying him rent ever since with the hope they could get this through. Had they not, it would be a huge risk to them and he felt the process to be unfair. Mr. Wolf remarked he has lost some tenants because of timing at the City. He thought this is a standard retail use and asked the Commission to take a hard look when reviewing the Conditional Use process that this is a traditional Planning Commission Meeting - October 14, 2004 Page 3 of 5 9 , r shopping center use. Mr. Wolf further commented he will be coming before the Commission in a month or so with the Department of Motor Vehicles that wants space in the shopping center and he has offered the Police Department a free use of part of one of the buildings for a Police Precinct. He noted both of those are Conditional Uses and the time that it will take to go through this process it will cost money for both ODOT and the City of Woodburn to locate in the shopping center and if another tenant comes along that is willing to pay a higher rent, he will take a different tenant. In closing, Mr. Wolf requested that at least for a traditional shopping center, the Commission think about it when it comes up again and figure out what uses make sense and do not make sense and allow those that do and disallow those that don't. DISCUSSION Chairoerson Lima closed the public hearing and opened for Commission discussion. Vice Chairoerson Young thought maybe part of the Conditional Use process has brought forth a much greater degree of professional companies that do the kind of business that Advance America does than what we have had in the past. The business and the location is retail business in a retail area, there is plenty of parking and it will be a good fit. Vice Chairperson Young further commented the use is completely compatible with adjacent businesses. He closed by stating he will vote in favor of this project. Chairoerson Lima agreed with Vice Ghairperson Young and he saw no reasons to deny this application. Commissioner Bandelow moved to approve Conditional Use 04-09 and instructed Staff return with facts and findings supporting that decision. Commissioner Knoles seconded the motion, which unanimously carried. ITEMS FOR ACTION A. Selection of Plannina Commission representative to the Woodburn Development Ordinance uDdate focus arOUD. Staff clarified the agenda is already established for what the Focus Group will be reviewing so we will not be able to add anything to the agenda at this point. Commissioner Bandelow felt the application fee seems like a lot of money for a small business starting up when it is a legitimate allowable use, even if it is a Conditional Use. Staff commented it is hard to define and it all depends on the specific use as to what kind of impact it will have. Commissioner Bandelow was concerned that we were singling out a business. Staff stated historically many of the uses are not the best type of clean uses. With the WOO, they did away with the Commercial Retail (CR) district. which was less intensive therefore part of the trade off was to make uses that were allowed in the Commercial General (CG) zone but were conditional in the Commercial Retail (CR) zone conditional uses. Most ofthose became Conditional in the Commercial General (CG) zone, which was the trade off on combining the two districts. Commissioner Bandelow remarked she could see that a review would be more necessary perhaps on this use if it were a stand alone building they were leasing. Chairoerson Lima asked if there are applicants that would pay more in conditional use application fee? Staff clarified the Conditional Use application fee is just a flat fee and not graduated at all. However, the Design Review application fee is graduated based on the square footage of the building. Staff indicated the approval criteria talks about compatibility and there isn't a specific approval criteria that talks about specifically over concentration or too many of them. However, if you were not comfortable with one in a certain location or maybe you felt there was an over concentration, you would have the ability to apply the criteria to deny it in that location. A Conditional Use just allows you to look at that use and that specific location. Staff reiterated the policy direction for the downtown district was that no more cash advance businesses be allowed. Staff explained the Woodburn Development Ordinance update has been broken up in two segments. The first segment being the Non-measure 56 Notice items, which are items that do not affect the use of people's property where it could potentially impact their property values or their allowed uses. Most of these items are Planning Commission Meeting - October 14, 2004 Page 4 of 5 10 ." T fairly simple, straightforward and do not involve a lot of policy direction and input. The second segment will be Measure 58 items, which include tree ordinance, grading ordinance and looking at potential concurrency requirements. He further indicated they are currently ready to move forward with phase one some time in November. Additionally, he reported Naomi Zwerdling, Senior Planner will head that up and bring the three member focus group together which consist of Councilor Cox, City Council representative, Dave Christoff, community representative and one Planning Commission representative. In the past, the group met in the afternoon once a week. He guesstimated the time involvement may be about 3-4 months with a total of about 10 meetings with each meeting going for about 1%-2 hours, at most. Commissioner Knoles volunteered to be the Planning Commission representative to the Woodburn Development Ordinance update focus group. Commissioner Bandelow informed everyone that Salem's Tree Ordinance proposed by the prior Mayor, required that each property list on the title for up to four trees on the property. They became part of the title and consequently if any of those trees disappeared, it would create a cloud on the title unless you recorded something indicating you had the right to remove the tree. DISCUSSION ITEMS Staff announced both November Planning Commission meetings are on holidays (Veteran's Day and Thanksgiving Day). He recommended the dates be moved to November 4th and 18th because there are items coming forward and there will be a need for those meetings. Staff stated he will include this item on the next agenda as an action item in order to establish those dates. REPORTS A. BuildinG Activitv for SeDtember 2004 B. PlanninG Protect Tracking Sheet (revised 9-23-04) BUSINESS FROM THE COMMISSION Vice Chairoerson Youna addressed the viewing public to be very careful with the upcoming elections in trying to obtain as much information as possible if you are considering changing some of the laws that govern land use planning. The planning currently in place has been evolving for nearly 40 years and it has gotten in to the kind of place where it tries to benefit as many citizens as possible. He further commented any radical or dramatic change may affect people in a negative way. Chairoerson Lima orally announced to the Mayor that he would like to continue with the Planning Commission. ADJOURNMENT Vice Chairoerson Youna moved to adjourn the meeting. Commissioner Griaorieff seconded the motion, which carried unanimously. Meeting adjourned at 8:00 pm. APPROVED (DIu Iocr DATE ATTEST Jim Co m~nity Development Director Ci~ofWoodburn, Oregon jt) ~ 2 J' ~ CJtj Date Planning Commission Meeting - October 14, 2004 Page 5 of 5 11 I-_~ ... ~~..(~.'^'.... ' ,n . . l'! WOODBURN j';(OrpOrdlld 1~B~ ~~8C . . November 3, 2004 SUBJECT: Honorable Mayor and City Council through City Administrator Public Works Program Manager 4 ~ Park Avenue and Highway 214 Intersection TO: FROM: BACKGROUND: In July 2004 Council discussed the Park Avenue and Highway 214 intersection that included a discussion of the OOOT traffic signal study that found a signal was not currently warranted at the intersection. In August 2004 Council received a memo analyzing the traffic signal warrant study. INFORMATION: Staff has discussed the intersection with OOOT region 2 staff. OOOT funded the signal warrants study that was completed in October 2003. As previously reported OOOT does not want to look at the intersection again so soon after a study was completed. OOOT Region 2 Traffic did have some suggestions that potentially could be evaluated for improvement of pedestrian movement at this intersection. These suggestions would require approval of the State Traffic Engineer that has not been obtained. These suggestions include: . Removal of westbound merge. The existing westbound merge from 2 lanes to 1 occurs during the Park Avenue intersection. This can result in poor judgment of acceptable highway gaps due to the westbound traffic jockeying for position, In addition, westbound traffic not only has to be attentive and react to merge situations, but also be attentive and react to vehicles and pedestrians entering the highway from the side street. Changing the westbound merge to a right turn trap lane at the Salud Medical Center entrance would force westbound vehicle to merge into the thru lane well before the intersection thus simplifying the driving task. . Installing a raised pedestrian refuge island, crosswalk and advance stop bar on the west approach. This will allow pedestrians a refuge area where they only need to cross one direction of traffic at a time. . Starting the 2 eastbound lanes east of the intersection. This would eliminate the risks associated with a pedestrian crossing two travel lanes in the same direction. Agenda Item Review: City Administrator City Attorney f\! I\, 12 J T Honorable Mayor and City Council November 3, 2004 Page 2 . . ODOT would be willing to look at these options with the city and prepare a proposal for submission to the State Traffic Engineer for approval. Any or all of these suggestions could be implemented at the intersection. There have been no discussions on cost but the state would probably not pick up any of the costs associated with any modification or improvement made to the intersection. This means that the city would have to fund the improvements probably through an intergovernmental agreement with OOOT. OOOT has many intersections on the state highway system where signals are warranted but there are no funds available for construction. With preliminary results showing that the bond measure for a new combined police facility passed, there may be an opportunity to further evaluate this intersection. OOOT will require a traffic study associated with granting an access permit onto Highway 214 for the new police facility that will be located to the west of this intersection. That study will require an evaluation of the Park Avenue intersection to be completed. This will allow another look at the proposed OOOT suggestions as well as other mitigation measures that OOOT may require as part of the police facility construction. The city has also applied for a Transportation Enhancement Program grant for completion of sidewalks on the north side of Highway 214 in this area. The results of this completive grant process will not be known until approximately April 2005. Sidewalks along the north side of the Highway could further justify intersection improvements. Depending upon success of the city's Transportation Enhancement Program grant for completion of sidewalks and the results of the traffic study associated with the new police facility, decisions could be made how best to address the concerns that exist with the intersection. OOOT has been receptive to discussing options with the intersection but have expressed that OOOT funding for such options would probably not be available in the near future. City staff will be actively involved with OOOT staff on approval of the access permit for the new police facility and traffic mitigation requirements that may be required at the access and potential improvement options at the Park Avenue and Highway 214 intersection. 13 ",... T 8D CITY OF WOODBURN Community Development MEMORANDUM 270 Montgomery Street Woodburn, Oregon 97071 (503) 982-5250 Date: November 2, 2004 To: Jim Mulder, Community Development Director From: Building Division Subject: Building Activity for October 2004 2002 2003 2004 Dollar Dollar Dollar No. Amount No. Amount No. Amount New Residence Value 8 $977,238 6 $893,835 13 $2,008,819 Multi Family 0 $0 0 $0 0 $0 Assisted Living Facilities 0 $0 0 $0 0 $0 Residential Adds & Alts 3 $17,300 4 $26,000 2 $4,200 Industrial 0 $0 0 $0 0 $0 Commercial Value 13 $209,087 11 $2,403,570 18 $672,058 Signs, Fences, Driveways 1 $5,900 12 $53,821 5 $12,575 Manufactured Homes 0 $0 1 $30,000 2 $45,995 TOTALS 25 $1,209,525 34 $3,407,226 40 $2,743,647 Fiscal Year (July 1- $7,672,266 $14,434,521 $11,394,884 June 30) to Date 1:\Comronlty Devetopmtlllt\llldQ\Buddlng Acthrity\SldgAct-2004\llldg Ac1lllity. Memos~IIi.!J - October 2004.wpcI " T ~i ~ 0 t! 0 CI (.) .e 01 :I: ~~ ~O ~I a.. 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November 8, 2004 TO: Mayor and City Council through City Administrator FROM: Jim Mulder, Director of Community Development SUBJECT: Annual Review of the Woodburn Development Ordinance RECOMMENDATION: Accept the report. BACKGROUND: The WOO was adopted by the City Council in July 2002. Section 1.101 .08 of the Woodburn Development Ordinance states that the Community Development Director shall report potential modifications of the WOO (due to new state and/or federal laws and rules, case law precedents, scrivener errors, and interpretations) to the City Council at the first meeting in the month of November so that the City Council may consider initiating appropriate measures to modify the WOO, The Annual Review of the Woodburn Development Ordinance 0NDO) is a Type V Legislative Decision. A resolution is required for the City Council to initiate the Annual Review of the WOO. DISCUSSION: Staff is currently working on a lengthy list of potential modifications to the WOO that were initiated by the City Council in November 2003. This current round of potential modifications is the first such modifications proposed to the WOO since its adoption and the scope of work has been much greater than originally anticipated, The scope of work has been divided into two categories. The first category is potential modifications that will not require Measure 56 notice (Measure 56 requires notification of any property owner where the new regulation will affect the permissible uses of their property and may potentially reduce the value of their property). These modifications are generally less complex and will require less policy direction. The second category is potential modifications that will require Measure 56 notice. These modifications are e Agenda Item Review: City Administrator City Attorney tv Finane', 1 20 "" T Mayor and City Council November 8,2004 Page 2 . . complex and will require a greater amount of policy direction. The Mayor has appointed a focus group to review the potential modifications. This focus group consists of Councilor Cox, Planning Commissioner Knoles, and Dave Christoff, local real estate broker who participated on the original WDO focus group. The focus group met on October 29, 2004 and began discussing the first category of modifications. The first category of modifications should be presented to the planning commission for public hearing in late January or early February 2005. The second category will take longer, with a public hearing before the planning commission probably not occurring before March 2005. Because of the length of time necessary to complete the first round of potential modifications, staff recommends that a new round of potential modifications not be initiated until after the Council has adopted both categories of modifications. This will also allow staff additional time to address potential modifications to the WDO that may become necessary due to the recent passage of Measure 37. Measure 37 allows property owners to submit a claim for the City to compensate them or waive a land use regulation when a land use regulation reduces the value of their land. FINANCIAL IMPACT: There is no direct financial impact associated with the recommended action. 21 ..". 'f lOA ~~ . . November 8, 2004 FROM: Honorable Mayor and City Council t~h City Administrator John C. Brown, City Administrat~ TO: SUBJECT: Public Hearing, Northwest Natural Gas Company Franchise RECOMMENDATION: It is recommended the City Council conduct a public hearing regarding a franchise with Northwest Natural Gas Company, and provide staff with direction, as appropriate, regarding an ordinance approving a franchise. BACKGROUND: As you are aware, the City's extended franchise agreement with Northwest Natural Gas Company (NW Natural) will expire on November 15, 2004. A revised agreement has been negotiated with NW Natural, and is provided for your consideration at the public hearing scheduled for your November 8, 2004 meeting. The agreement is attached to General Business Item 11 A. DISCUSSION: The public hearing allows for public comment on the franchise that has been negotiated, and to identify any changes required by the City Council. A separate item is scheduled in the General Business portion of your agenda, which allows you to approve the franchise agreement as presented. A summary of negotiated changes from the current franchise agreement is provided in the staff report associated with that item. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. Agenda Item Review: ~ City Administ or- ~ City Attorney _ Finance 22 l' T ac~::::"---:';:; ~ -A. ~ WQ.QI2BURN I ,t ( ,) r /' ~1 rat (d Il'f 3 'I llA ~~ . . November 8, 2004 FROM: Honorable Mayor and City Council through City Administrator John C. Brown, City Administrat~ TO: SUBJECT: Northwest Natural Gas Franchise RECOMMENDATION: It is recommended the City Council adopt an ordinance granting a non- exclusive gas utility franchise to Northwest Natural Gas Company, and fixing the terms, conditions, and compensation of such franchise. BACKGROUND: A franchise agreement with Northwest Natural Gas Company (NW Natural) was approved in 1994, effective through August 22,2004. Since August 9, 2004, the Council has extended NW Natural's franchise three times, and continued the public hearing noticed for August 9, 2004 four times, to allow time to complete franchise negotiations. The franchise is currently set to expire November 15, 2004. Council Ordinance 2133 (Attachment 1) established the relationship between NW Natural and the City related to the company's operation within city rights of way, and for franchise and privilege tax payments. A separate ordinance, Ordinance 2145 establishes the amount of the privilege tax charged to NW Natural. Pursuant to the franchise, NW Natural has a non-exclusive right to use City rights-of-way to deliver natural gas to Woodburn customers. NW Natural is required to coordinate and receive City approval before excavating or working in the rights-of-way, and must relocate its facilities if requested. The agreement also dictates restoration ot disturbed rights-ot-way. NW Natural is required to pay franchise fees equal to 3 percent of its gross revenues collected in the franchise area and is subject to privilege tax charges. Privilege tax charges amount to an additional 2 percent of the company's gross revenues collected in the franchise area. Agenda Item Review: City Administrat~ City Attorney Finance 23 ''!II' ... Honorable Mayor and City Council November 8, 2004 Page 2 . . DISCUSSION: NW Natural initiated franchise negotiations last June. Its primary concerns focused on language regarding relocating facilities, and in limiting public access to the Company's maps and drawings of its system. NW Natural indicates the confidentiality of system maps is necessary to address homeland security concerns. Other significant items raised by Northwest Natural included lengthening the term of the franchise to 20 years; timing of franchise fee payments; and eliminating reference to privilege tax requirements, requirements for City approval in the event of a sale or transfer of the franchise, and requirements to renegotiate the franchise in the event of legislative changes affecting the franchise. City concerns focused on preserving the public's right to charge fees and taxes for the use of the rights-of-way. . Progress on negotiations with NW Natural has been sporadic over the last several months; negotiations were largely conducted through exchanges between the City's and NW Natural's attorneys. These negotiations resulted in little substantive change from the previous franchise. The franchise is for a period of ten years, and the City continues to maintain control over the rights of way. The City can require relocation, and will approve work prior to work being undertaken. NW Natural will still restore disturbed rights of way in a manner acceptable to, and within the time required by the City, and is subject to a franchise fee and a privilege tax. NW Natural cannot sell or transfer the franchise without City permission. Provisions regarding location and relocation of NW Natural facilities are modified to require private parties or private development to pay the cost of relocations, where the relocation is for the benefit of such parties or development. Disputes between the City and NW Natural in this regard shall be settled by the decision of the City Administrator. Provisions regarding maps and drawings have been modified to provide greater confidentiality of those records, in order to limit public access to them. Franchise payments would be made on a calendar year basis, rather than quarterly, which is consistent with the provisions of the PGE franchise. The attached ordinance addresses the concerns of both parties to the greatest possible extent, and preserves rights that are important to responsible management of the public's rights-of way. As of this writing, complete agreement on the attached document has not been reached with NW Natural. It is expected, however, that any changes that may occur between now and your November 8, 2004 hearing will be minor in nature, will be discussed with you at that time, and should not preclude you from adopting a new franchise ordinance. 24 '.. 9' Honorable Mayor and City Council November 8, 2004 Page 3 . . FINANCIAL IMP ACT: NW Natural paid $197,539 in franchise fees and privilege taxes to the City in FY 2004-05. Based on anticipated rate increases, franchise fees and privilege taxes included in the approved budget for 2004-05 are estimated at $233,000. 25 ,.. T ATTACHMENT I Pag....L- of c:=, COUNCIL BILL NO. 1578 ORDINANCE NO. 2133 AN ORDINANCE GRANTING A NON-EXCLUSIVE GAS UTILITY FRANCHISE TO NORTHWEST NATURAL GAS COMPANY, FIXING TERMS, CONDITIONS AND COMPENSATION THEREUNDER, REPEALING ORDINANCE NO. 1442 AND DECLARING AN EMERGENCY. THE CITY OF WOODBURN ORDAINS AS FOllOWS: Section 1: Definitions and Explanations. (1) As used in this ordinance. (a) "Bridge" includes a structure erected within the City to facilitate the crossing of a river, stream, ditch, ravine or other place, but does not include a culvert. (b) "City" means the CITY OF WOODBURN and the area within its boundaries, including its boundaries as extended in the future. (c) "Council" means the legislative body of the City. (d) "Grantee" means the corporation referred to in Section 2 of this ordinance. (e) "Gas mainslt includes all gas transmission and distribution facilities located on or under any street, bridge or public place within the City. (f) Itperson" includes an individual, corporation, association, firm, partnership and joint stock company. (g) IIPublic placell includes any city-owned park, place or grounds within the City that is open to the public but does not include a street or bridge. (h) "Street" includes a street, alley, avenue, road, boulevard, thoroughfare or public highway within the City, but does not include a bridge. Page 1 Council Bill No. 1578 Ordinance No. 2133 26 " T I ATTACH~ENT lA Page of.;.J (2) As used in this ordinance, the singular number may include the plural and the plural number may include the singular. (3) Unless otherwise specified in this ordinance, any action authorized or required to be taken by the City may be taken by the Council or by an official or agent designated by the Council. Section 2: Riahts Granted. Subject to the conditions and reservations contained in this ordinance, the City hereby grants to NORTHWEST NATURAL GAS COMPANY, a corporation, the right, privilege and franchise to: (1 ) Construct, maintain and operate a gas utility system within the City. (2) Install, maintain and operate on and under the streets and bridges and public places of the City, facilities for the transmission and distribution of gas to the City and its inhabitants and to other customers and territory beyond the limits of the City; and (3) Transmit, distribute and sell gas. Section 3: Use of Bridaes and Public Places bv Grantee. (1) Before the Grantee may use or occupy any bridge or public place, the Grantee shall first obtain permission from the City to do so and shall comply with any special conditions the City desires to impose on such use or occupation. (2) The compensation paid by the Grantee for this franchise includes compensation for the use of bridges and public places located within the City as authorized. Section 4. Duration. This franchise is granted for a period of ten (10) years from and after the effective date of this ordinance. Section 5. Franchise Not Exclusive. This franchise is not exclusive, and shall not be construed as a limitation on the City in: Page 2 Council Bill No. 1578 Ordinance No. 2133 27 '.... y' f ATTACHMENT Page --.:i of ~ (1) Granting rights, privileges and authority to other persons similar to or different from those granted by this ordinance. (2) Constructing, installing, maintaining or operating any City-owned public utility . Section 6. Public Works and Improvements Not Affected by Franchise. The City reserves the right to: (1) Construct, install, maintain and operate any public improvement, work or facility; (2) Do any work that the City may find desirable on, over or under any street, bridge or public place. (3) Vacate, alter or close any street, bridge or public place. (4) Whenever the City shall excavate or perform any work in any of the present and future streets, alleys and public places of the City, or shall contract, or issue permits, for such excavation or work where such excavation or work may disturb Grantee's gas mains, pipes and appurtenances, the City shall, in writing, notify Grantee sufficiently in advance of such contemplated excavation or work to enable Grantee to take such measures as may be deemed necessary to protect such gas mains, pipes and appurtenances from damage and possible inconvenience or injury to the public. In any such case, the Grantee, upon request, shall furnish maps or drawings to the City or contractor, as the case may be, showing the approximate location of all its structures in the area involved in such proposed excavation or other work. (5) Whenever the City shall vacate any street or public place for the convenience or benefit of any person or governmental agency and instrumentality other than the City, Grantee's rights shall be preserved as to any of its facilities then existing in such street or public place. Section 7: Continuous Service. The Grantee shall maintain and operate an adequate system for the distribution of gas in the City. The Grantee shall use due diligence to maintain continuous and uninterrupted 24- hour a day service which shall at all times conform at least to the standards common in the business and to the standards adopted by state authorities and to standards of the City which are not in conflict with those adopted by the state authorities. Under no circumstances shall the Grantee be liable for an interruption or failure of service caused by Page 3 Council Bill No. 1578 Ordinance No. 2133 28 l' T ATTA~eNT I P e of Cl act of God, unavoidable accident or other circumstances beyond the control o~he rantee through no fault of its own. Section 8: Safety Standards and Work Specifications. (1) The facilities of the Grantee shall at all times be maintained in a safe, substantial and workmanlike manner. (2) For the purpose of carrying out the provisions of this section, the City may provide such specifications relating thereto as may be necessary or convenient for public safety or the orderly development of the City. The City may amend and add to such specifications from time to time. Section 9: Control of Construction. The Grantee shall file with the City maps showing the location of any construction, extension or relocation of its gas mains in the streets of the City and shall obtain from the City approval of the location and plans prior to commencement of the work. All work done within the corporate limits of the City shall be done in the location approved by the City Engineer and in accordance with plans and specifications approved by the City Engineer. The City Engineer's approval of the plans and specifications may include conditions and the conditions shall be binding on the Grantee. Such construction work shall be done in a safe manner subject to the approval of the City Engineer and in accordance with requirements of applicable Federal and State laws and City ordinances. All work done shall be subject to the rejection or correction requirements of the City Engineer and subject to the City Engineer's approval. The City may require the Grantee to obtain a permit before commencing the construction, extension or relocation of any of its gas mains. Section 10: Street Excavations and Restorations. (1) Subject to the provisions of this ordinance and under direction of the City Engineer, the Grantee or its subcontractor may make necessary excavations for the purpose of constructing, installing, maintaining and operating its facilities. In all circumstances pertinent to this agreement, any action by the Grantee's subcontractors shall be the responsibility of the Grantee. Any subcontractor of the Grantee shall be bound to the requirements of this agreement. Except in emergencies, prior to making an excavation in the traveled portion of any street, bridge or public place, and, when required by the City, in any untraveled portion of any street, bridge or any public place, the Grantee shall obtain from the City approval of the proposed excavation and of its location. Grantee shall give notice to the City by telephone, electronic data transmittal or other appropriate means as soon as is practicable after the commencement of work performed under emergency Page 4 Council Bill No. 1578 Ordinance No. 2133 29 .,. ., ATT~~:NT I conditions. The City may require the Grantee to obtain a perfhlG of 4 excavating. (2) When any excavation is made by the Grantee, the Grantee or its subcontractor shall promptly restore the affected portion of the street, bridge or public place to the same condition in compliance with any permits issued by the City and any specifications, requirements and regulations of the City in effect at the time of such restoration. All work done shall be subject to the rejection or correction requirements of the City Engineer's approval. If the Grantee or its subcontractor fails to restore promptly the affected portion of the street, bridge, or public place to the same condition in which it was prior to the excavation, the City may make the restoration, and the cost thereof shall be paid by the Grantee. Section 11: Location and Relocation of Facilities. (1) All facilities of the Grantee shall be placed so that they do not interfere unreasonably with the use by the City and the public of the streets, bridges and public places and in accordance with any specifications adopted by the City governing the location of facilities. (2) The City may require, in the public interest, the removal or relocation of facilities maintained by the Grantee in the streets of the City, and the Grantee shall remove and relocate such facilities within a reasonable time after receiving notice to do so from the City. The cost of such removal or relocation of its facilities shall be paid by the Grantee, but when such removal or relocation is required for the convenience or benefit of any person, governmental agency or instrumentality other than the City, Grantee shall be entitled to reimbursement for the reasonable cost thereof from such person, agency or instrumentality. Section 12: Compensation. (1) As compensation for the franchise granted by this ordinance, the grantee shall pay to the City an amount equal to three percent (3%) of the gross revenue collected by the Grantee from its customers for gas consumed within the City. IIGross revenuell as used in this ordinance shall be deemed to include any revenue earned within the City from the sale of natural gas after deducting from the total billings of the Grantee the total net writeoff of uncollectible accounts. Gross revenues shall include revenues from the use, rental or lease of operating facilities of the utility other than residential-type space and water heating equipment. Gross revenues shall not include proceeds from the sale of bonds, mortgage or other evidence of indebtedness, securities or stocks, revenues derived from the sale or Page 5 Council Bill No. 1578 Ordinance No. 2133 30 ." T , ATTACHMENT q PlgI...YL of _ transportation of gas supplied under an interruptible tariff schedule, sales at wholesale to a public utility when the utility purchasing the service is not the ultimate consumer, or revenue paid directly by the United States of America or any of its agencies. (2) The City shall retain the right. as permitted by Oregon Law, to charge a privilege tax in addition to the franchise fee set forth herein based on the gross revenues of the company. payable on the same terms and conditions as the franchise fee itself. Such privilege tax may be implemented during the term of this franchise provided that. if enacted after the effective date, the City shall provide the Grantee with sixty (60) days' notice prior to the effective date of the ordinance enacting the tax. (3) The compensation required by this section shall be due for each calendar quarter. or fraction thereof. within thirty (30) days after the close of such calendar quarter, or fraction thereof. Within thirty (30) days after the termination of this franchise, compensation shall be paid for the period elapsing since the close of the last calendar quarter for which the compensation has been paid. (4) The Grantee shall furnish to the City Finance Director with each payment of compensation required by this section a written statement. under oath, executed by an officer of Grantee showing the amount of gross revenue of the Grantee within the City for the period covered by the payment computed on the basis set out in subsection (1) of this section. The compensation for the period covered by the statement shall be computed on the basis of the gross revenue so reported. If the Grantee fails to pay the entire amount of compensation due the City through error or otherwise, the difference due the City shall be paid by the Grantee within fifteen (15) days from discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise. shall be offset against the next payment due from the Grantee. (5) Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this franchise occurring prior thereto. nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due, or from collecting any balance due to the City. Section 13: Books of Account and Reports. The Grantee shall keep accurate books of account at an office in Oregon for the purpose of determining the amounts due to the City under section 12 of this ordinance. The City may inspect the books of account at any time during business hours and may audit the Page 6 Council Bill No. 1578 Ordinance No. 2133 31 ." T' ATTACHMENT I Page...:L- of ot books from time to time. The Council may require periodic reports from the Grantee relating to its operations and revenues within the City. Section 14: Classification of Fees. The City Council determines that any fees imposed by this franchise are not taxes subject to the property tax limitations of Article XI, Section 11 (b) of the Oregon Constitution. Section 15: Collection Facilities. The Grantee may maintain facilities in the City where its customers may pay their bills for gas service during normal business hours. Section 16: Supplvino Maps Upon Request. The Grantee shall maintain on file, at an office in Oregon, maps and operational data pertaining to its operations in the City. The City may inspect the maps and data at any time during business hours. Upon request of the City, the Grantee shall furnish to the City, without charge and on a current basis, maps showing the location of the gas mains of the Grantee in the City. Section 17: Indemnification. The Grantee shall indemnify and save harmless the City and its officers, agents and employees from any and all loss, cost and expense arising from damage to property and/or injury to, or death of, persons due to any wrongful or negligent act or omission of the Grantee, its agents or employees in exercising the rights, privileges and franchise hereby granted. Section 18: No Recourse Aoainst Citv. Grantee shall have no recourse whatsoever against the City or its officials, boards, commissions, agents or employees for any loss, cost, expense or damage arising out of any provision or requirement of this franchise or because of the enforcement of this franchise or in the event this franchise or any part thereof is determined to be invalid. Section 19: Sale or Assionment of Franchise. The Grantee shall not during the term of this Franchise sell, assign, transfer or convey this franchise without first obtaining the consent of the City Council, by ordinance, which Page 7 Council Bill No. 1578 Ordinance No. 2133 32 ".'. ... ATTACHMENT , page.:i.- of ot consent shall not be unreasonably withheld, and that all of the provisions shall inure to and bind the successors and assigns of the Grantee; and whenever the Northwest Natural Gas Company shall be mentioned in this ordinance, it shall be understood to include such successors or assigns in interest of the Northwest Natural Gas Company as shall have been so consented to by the City Council. Section 20: Termination of Franchise for Cause. Upon the willful failure of the Grantee, after sixty (60) days' notice and demand in writing, to perform promptly and completely each and every term, condition or obligation imposed upon it under or pursuant to this ordinance, the City may terminate this franchise, subject to Grantee's right to a court review of the reasonableness of such action. Section 21: Rene~otiation of the Franchise. If the State of Oregon or the PUC amends or adopts a state statute or administrative rule that would affect a term, condition, right or obligation under this agreement, either party may reopen the franchise agreement at any time with regard to such term, conditions, right or obligation in order to address the change required or allowed by the new or amended state statute or administrative rule. Section 22: Remedies Not Exclusive, When Requirement Waived. All remedies and penalties under this ordinance, including termination of the franchise, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or enforcement of any other such remedy or penalty. The remedies and penalties contained in this ordinance, including termination of the franchise, are not exclusive and the City reserves the right to enforce the penal provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon the Grantee by or pursuant to this ordinance. A specific waiver of a particular breach of any term, condition or obligation imposed upon the Grantee by or pursuant to this ordinance shall not be a waiver of any other or subsequent or future breach of the same or of any other term, condition or obligation, or a waiver of the term, condition or obligation itself. Section 23: Prior Ordinance Repealed. Ordinance No. 1442 is hereby repealed. Page 8 Council Bill No. 1578 Ordinance No. 2133 33 ." T 'Section 24: Acceptance. ATTACHMENT '" Page.....:::1- of The Grantee shall, within thirty (30) days from the date this ordinance takes effect, file with the City its written unconditional acceptance of this franchise in the form attached hereto as Exhibit "N, and if the Grantee fails so to do, this ordinance shall be void. Section 25: Emeraencv Clause. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the Council and approval by the Mayor, and shall be valid for a term of franchise as stated in Section 4 and provided that the Grantee files its acceptance as stated in Section 24. Approved as to form: APPROVED: Date ~L~aYOr City Attorney Passed by the Council August 22, 1994 Submitted to the Mayor August 23, 1994 Approved by the Mayor August 23, 1994 Filed in the Office of the Recorder August 23, 1994 ATTEST: fJ!a--U.L -L -:sf- M~rffi ennant,City Recorder City of Woodburn, Oregon Page 9 Council Bill No. 1578 Ordinance No. 2133 34 ... COUNCIL BILL NO: ORDINANCE NO: AN ORDINANCE GRANTING A NON-EXCLUSIVE GAS UTILITY FRANCHISE TO NORTHWEST NATURAL GAS COMPANY, AND FIXING TERMS, CONDITIONS AND COMPENSATION OF SUCH FRANCHISE. THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1: Definitions and EXDlanatlons. (1) As used in this ordinance. (aj "City" means the City of Woodburn and the areas within its boundaries, including its boundaries as extended in the future. (b) "Council" means the legislative body of the City. (c) "Grantee" means the corporation referred to in Section 2 of this ordinance. (d) "Gas" means natural methane-based gas. (e) "Gas facilities" means Grantee's gas transmission and distribution facilities, including pipes, pipe lines, mains, laterals, conduits, feeders, regulators, reducing and regulating stations, meters, fixtures, connections and all attachments, appurtenances, and all accessories necessary and incidental thereto located within the City Limits, whether the facilities are located above or below ground. (f) "Person" includes an individual, corporation, association, firm, partnership and joint stock company. (g) "Public place" means any City-owned property within the City that is open to the public that is not a right-of-way, including public squares and parks. (h) "Right-ot-way" means the space in, upon, above, or under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, sidewalks, bicycle lanes, bridges, and places used ,or intended to be used by the general public for travel as the same Page 1 - COUNCIL BILL NO. ORDINANCE NO. 35 ,.~., .. now or may hereafter exist, that the City has the right to allow Grantee to use. (2) As used in this ordinance, the singular number may include the plural and the plural number may include the singular. Section 2: Riahts Granted. (1) Subject to the conditions and reservations contained in this ordinance, the City hereby grants to NORTHWEST NATURAL GAS COMPANY, a corporation, the right, privilege and franchise to: (a) Construct, maintain and operate a natural gas utility system within the City: (b) Install, maintain and operate gas facilities on, in and under the rights-of-way of the City, residents, agencies and businesses in the City and to territory beyond the limits of the City; and (c) Transmit, distribute and sell gas within the City and to territory beyond the limits of the City. (2) The rights granted herein shall not confer on Grantee any right, title or interest in any public way beyond that expressly conferred by the provisions of this Section 2, nor shall it confer any right or privilege to use or occupy any other property of the City or any other entity. Section 3: Use of Riahts-of-Way by Grantee. (1) Before the Grantee may use or occupy any right-of-way, the Grantee shall first obtain permission from the City to do so and shall comply with any special conditions the City may impose on such use or occupation. (2) The compensation paid by Grantee for this franchise includes all compensation for the use of rights-of-way located within the City as authorized. The City may charge additional compensation for the use of any public place. Section 4. Duration. This franchise is granted for a period of 10 years from and after the effective date of this ordinance. Page 2 - COUNCIL BILL NO. ORDINANCE NO. 36 "'11' T Section 5. Franchise Not Exclusive. This franchise is not exclusive, and shall not be construed as a limitation on the City in: (1) Granting rights, privileges and authority to other persons similar to or different from those granted by this ordinance. (2) Constructing, installing, maintaining or operating any City-owned public utility. Section 6. Public Works and Imorovements Not Affected bv Franchise. The City reserves the right to: (l) Construct, install, maintain and operate any public improvement, work or facility in, on or over the rights-of-way. (2) Do any work that the City may find desirable on, over or under any right- of-way. (3) Vacate, alter or close any street. Whenever the City shall vacate any Right-of-way or public place for the convenience or benefit of any person or governmental agency or instrumentality, Grantee's rights under this Franchise shall be preserved as to any of its Gas facilities then existing in the Right-of-way or public place if reasonably practicable~ To the extent Grantee's rights in the Right-of-way cannot be preserved in any street vacation, City shall where reasonably practicable provide an alternative Right-of-way for the location of Grantee's Gas facilities. If Grantee's Gas facilities must be relocated from a vacated Right-of-way, the petitioners of such vacation shall bear the costs of relocating the Gas facilities. Upon receipt of a notice of a petition for vacation, Grantee shall as soon as practicable investigate and advise the City and petitioners in writing whether the Gas facilities must be relocated, the estimated costs of relocation and the time needed for this relocation. (4) Whenever the City shall perform, cause or permit any work in any present or future right-of-way of the City on its behalf, where such work may disturb Grantee I s gas facilities, the City shall, or require its permittee to, notify Grantee in writing, sufficiently in advance of such contemplated work to enable Grantee to take such measures, as Grantee may deem necessary to protect such facilities, at its own expense. Page 3- COUNCIL BILL NO. ORDINANCE NO. 37 l' T Section 7: Continuous Service. Grantee shall maintain and operate an adequate system for the distribution of gas in the City. Grantee shall use due diligence to maintain continuous and uninterrupted 24-hour a day service which shall at all times conform at least to the standards common in the business and to the standards adopted by state authorities and to standards of the City which are not in conflict with those adopted by the state authorities. Under no circumstances shall Grantee be liable for an interruption or failure of service caused by an act of God, unavoidable accident or other circumstances beyond the control of Grantee through no fault of its own. Section 8: Safety Standards and Work SDecificatlons. (1) The facilities of Grantee shall at all times be maintained in a safe, substantial and workmanlike manner. (2) For the purpose of carrying out the provisions of this section, the City may provide such specifications relating thereto as may be necessary or convenient for public safety or the orderly development of the City. The City may amend and add to such specifications from time to time. Section 9: Control of Construction. (1) Before commencing any construction, extension or relocation of facilities in a City right-of-way, Grantee shall file with the City drawings, in such form as may be acceptable to the City Engineer, showing the location of existing facilities and facilities to be constructed, maintained, or relocated and shall obtain from the City approval of the location and plans prior to commencement of the work. (2) All work done within a City right-of-way shall be done in the location approved by the City Engineer and in accordance with plans and specifications approved by the City Engineer. The City Engineer's approval of the plans and specifications may include conditions and the conditions shall be binding on Grantee. Such construction work shall be done in a safe manner subject to the approval of the City Engineer and in accordance with requirements of applicable Federal and State laws and City ordinances. All work done shall be subject to the rejection or correction requirements of the City Engineer and subject to the City Engineer's approval. Page 4 - COUNCIL BILL NO. ORDINANCE NO. 38 ". T Section 10: Street Excavations and Restorations. (1) Subject to the provisions of this ordinance, the Grantee or its subcontractor may make necessary excavations for the purpose of constructing, installing, maintaining and operating its gas facilities. In all circumstances pertinent to this agreement, any action by Grantee's subcontractors shall be the responsibility of Grantee. Any subcontractor of Grantee shall be bound to the requirements of this agreement. , (2) Except in emergencies, and in the performance of routine service connections and ordinary maintenance, on private property, prior to making an excavation in the traveled portion of any right-of-way, and, when required by the City, in any untraveled portion of any right-of-way, Grantee shall obtain from the City approval of the proposed excavation and of its location. (3) Grantee shall give notice to the City by telephone, electronic data transmittal or other appropriate means prior to the commencement of service or maintenance work and as soon as is practicable after the commencement of work performed under emergency conditions. (4) When Grantee does any work in the unimproved portion of a right-of-way, Grantee or its subcontractor, shall promptly restore the affected portion of right-of-way to the same condition in which it was prior to the excavation. When Grantee does any work in an improved portion of a right-of-way, Grantee or its subcontractor shall promptly restore the affected portion of the right-of-way in compliance with the conditions in any permit issued by the City or any specifications, requirements and regulations of the City in effect at the time of the work. All work done shall be subject to the rejection and correction requirements of the City Engineer's approval. If Grantee or its subcontractor fails to restore promptly the affected portion of a right-of-way in accordance with City Standard Construction specifications in effect at the time of the work, the City may make the restoration, and the cost thereof shall be paid by Grantee. Section 11: Location and Relocation of Facilities. (1) All gas facilities of Grantee shall be placed so that they do not interfere unreasonably with the use of the right-of way by the City and the public and in accordance with any specifications adopted by the City governing the location of facilities. Page 5 - COUNCIL BILL NO. ORDINANCE NO. 39 ." T (2) The City may require the removal or relocation, temporarily or permanently, of facilities maintained by Grantee in the streets of the City. Grantee shall remove and relocate such facilities within 120 days after receiving notice so to do from the City. The cost of such removal or relocation shall be paid by Grantee. In the event that the removal, relocation, change or alteration is needed to accommodate private development or other private use of the right-ot-way, the developer or other private party requiring the action shall be responsible for the cost ot removal, relocation, change or alteration. Construction of public improvements by a private party within the right-of-way as a condition of City approval shall be considered installation of public improvements of the City if the improvement is not needed to provide service to the private party. In the event of a dispute as to whether the removal, relocation, change or alteration is a public improvement or accommodates private development, the dispute shall be referred to the City Administrator, whose decision shall be final and binding. Section 12: Compensation. (1 ) As compensation for the privileges granted by this ordinance, Grantee shall pay to the City an amount equal to three percent (3%) of Grantee's gross revenue collected from its customers for gas consumed within the City. Gross revenue shall mean revenues from the use, rental or lease of operating facilities of the utility other than residential heating and water heating equipment minus net uncollectible amounts. Gross revenues shall not include revenues paid by the United States of America or any of its agencies, sales at wholesale to a public utility when the utility purchasing the service is not the ultimate consumer, or proceeds from the sale of bonds, mortgage or other evidence of indebtedness, securities or stocks. (2) The City shall retain the right, as permitted by Oregon Law, to charge a privilege tax in addition to the franchise fee set torth herein based on the gross revenues of the company, payable on the same terms and conditions as the franchise fee itself. (3) The compensation required by this section shall be due for each calendar year, or fraction thereof, within thirty (30) days after the close of such calendar year, or fraction thereof. Within thirty (30) days after the termination of this franchise, compensation shall be paid for the period elapsing since the close of the last calendar year for which compensation has been paid. Page 6 - COUNCIL BILL NO. ORDINANCE NO. 40 .".. T (4) Grantee shall furnish to the City Finance Director with each payment of compensation required by this section a written statement, showing the amount of gross revenue of the Grantee within the City for the period covered by the payment computed on the basis set out in subsection (1) of this section. If Grantee fails to pay the entire amount of compensation due the City through error or otherwise, the difference due to City shall be paid by the Grantee within fifteen (15) days from discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise, shall be offset against the next payment due from Grantee. (5) Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this franchise occurring prior to the acceptance, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due, or from collecting any balance due to the City. Section 13: Books of Account and Reports. On an annual basis, upon thirty (30) days prior written notice, the City or its agent shall have the right to conduct an audit or review of Grantee's records reasonably related to the administration or enforcement of this ordinance. If an audit or review of the records determines that franchise fees have been underpaid, Grantee shall reimburse the City for the total cost of the audit or review within thirty (30) days of City's written demand for same. All amounts underpaid shall accrue interest at the statutory rate from the effective date of the underpayment. Section 14. Classification of Fees. The City Council determines that any fees imposed by this franchise are not taxes subject to the property tax limitations of Article XI, Section 11 (b) of the Oregon Constitution. Section 15: As-Built Drawinas. Subject to the confidentiality limitations of this section, Grantee shall provide City with available maps of the location of its facilities and operational data requested by the City. The Grantee shall also provide as-built plans for those portions of the system that are added to or modified during the year. These records are submitted in confidence, and the City will keep those records in confidence and not allow others to view or copy them. The City agrees to keep the documents confidential and to take the position that they are exempt from Page 7 - COUNCIL BILL NO. ORDINANCE NO. 41 public disclosure. The City shall limit access to the as-built drawings to City employees or City contractors with a need to know where the Grantee's facilities are located and shall review the as-built drawings only as necessary to plan City projects, coordinate the use of the rights of way, and to protect the public health and safety. Section 16. Indemnification. Grantee shall indemnify and save harmless the City and its officers, agents and employees from any and all loss, cost and expense arising from damage to property and/or injury to, or death of, persons due to any wrongful or negligent act or omission of Grantee, its agents or employees in exercising the rights, privileges and franchise hereby granted. Section 17: Sale or Assianment of Franchise. Grantee shall not during the term of this Franchise sell, assign, transfer or convey this franchise without first obtaining the consent of the City Council, by ordinance, which consent shall not be unreasonably withheld. All of the provisions of this ordinance shall inure to and bind the successors and assigns of the Grantee. Whenever Northwest Natural shall be mentioned in this ordinance, it shall be understood to include, such successors or assigns in interest of Northwest Natural as shall have been so consented to by the City Council. Section 18: Termination of Franchise for Cause. The City may terminate this franchise as provided in this Section, subject to Grantee's right to a court review of the reasonableness of such action, upon the willful failure of the Grantee to perform promptly and completely each and every material term, condition or obligation imposed upon it under or pursuant to this ordinance. The City shall provide the Grantee written notice of any such failure and the Grantee shall have sixty (60) days from receipt of notice to cure such failure, or if such failure cannot reasonably be cured within sixty (60) days, to commence and diligently pursue curing such failure. Section 19: Reneaotiation of the Franchise. If the State of Oregon or the PUC amends or adopts a state statute or administrative rule that would affect a term, condition, right or obligation under this agreement, either party may reopen the franchise agreement at any time with regard to such term, conditions, right or obligation in order to address the change required or allowed by the new or amended state statute or administrative rule. Page 8 - COUNCIL BILL NO. ORDINANCE NO. 42 '" T Section 20: Remedies Not Exclusive, When Reaulrement Waived. All remedies and penalties under this ordinance, including termination of the franchise, are cumulative, and the recovery or enforcement of one is not a bar to the recovery or enforcement of any other such remedy of penalty. The remedies and penalties contained in this ordinance, including termination of the franchise, are not exclusive and the City reserves the right to enforce the penal provisions of any ordinance or resolution and to avail itself of any and all remedies available at law or in equity. Failure to enforce shall not be construed as a waiver of a breach of any term, condition or obligation imposed upon the Grantee by or pursuant to this ordinance. A specific waiver of a particular breach of any term, condition or obligation imposed upon Grantee by or pursuant to this ordinance shall not be a waiver of any other or subsequent or future breach of the same or of any other term, condition or obligation, or a waiver of the term, condition or obligation itself. Section 21: AcceDtance. The Grantee shall, within thirty (30) days from the date this ordinance takes effect, file with the City its written unconditional acceptance of this franchise, and if the Grantee fails so to do, this ordinance shall be void. Section 22: Prior Ordinance ReDealed. Ordinance no. 2133 is hereby repealed. Section 23: Emeraency Clause. This ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist and this ordinance shall take effect immediately upon passage by the Council and approval by the Mayor, and shall be valid for a term of franchise as stated in Section 4 and provided that Grantee files its acceptance as stated in Section 21. Approved as to form: City Attorney Date Approved: Kathryn Figley, Mayor Page 9 - COUNCIL BILL NO. ORDINANCE NO. 43 ''II!' T' Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant City Recorder City of Woodburn, Oregon Page 10 -COUNCIL BILL NO. ORDINANCE NO. 44 """," y "k' ~. WQ.Q.Q.BllliN Jj'(~rl'~'attJ ,~s~ llB ~~ . . November 4, 2004 TO: Mayor and City Council through City Administrator FROM: Scott Rus*i}:Chief of POIiC~ndY Westrtck. Recreation and Parks Director IY v SUBJECT: Proposed Amendments to Park Exclusion Ordinance RECOMMEN DA liON: City Council pass an ordinance amending the exclusion provisions of the Woodburn Park Ordinance as proposed by staff. BACKGROUND: In 2003 Council amended the Woodburn Park Ordinance by adding provisions to the ordinance, which allowed for the exclusion of individuals from city parks when they engaged in certain improper conduct. These provisions were modeled on a City of Portland ordinance that was in place at the time. In 2004 the federal civil court struck down the City of Portland Ordinance in question as unconstitutional. Based upon this ruling, city staff reviewed our existing ordinance and worked with the City Attorney to update it. The City Attorney completed the attached memo outlining the involved issues and making recommendations on how to resolve them. DISCUSSION: The police and parks departments have been working with the City Attorney to prepare the attached amended ordinance for your review. We believe that the ordinance amendment as proposed provides a fair, balanced, and court defensible park exclusion process that serves all concerned. The amended ordinance includes the changes required by the federal court and as outlined by the City Attorney. It also includes a procedural change recommended by the Police Department. This procedural change adds enhanced penalties for repeated exclusions and is located in Section 9(B) 2 of the proposed amended ordinance. It provides increased exclusion periods of 90 and 180 days respectively, for the second and third park exclusions occurring within a two- year period prior to the current offense. The purpose of this enhanced penalty is Agenda Itern Review: City Administrat~ City Attorney ~ Finance 45 ''IIr'' .' Mayor and City Council November 4, 2004 Page 2 . . to deal with repeat offenders who pose an ongoing danger and/or nuisance to park patrons. As presented, we believe the proposed ordinance will allow for continued effective enforcement of the park ordinances and enhanced safety within our city parks. FINANCIAL IMPACT: None. 46 'Ir T MEMO FROM THE WOODBURN CITY ATTORNEY FROM: Scott Russell, Police Chief Randy Westrick, Recreation and Parks Director N. Robert Shields, City AttorneyNIL~ TO: DATE: November 2, 2004 RE: Proposed Amendments to Park Exclusion Ordinance to Comply with Federal Court Decisions As you are both aware, a few months ago a federal court struck down the City of Portland park exclusion ordinance as unconstitutional. In response to the involved court decisions, the City of Portland amended its ordinance. Since Woodburn's present ordinance was modeled on the Portland ordinance and contains some provisions that could be legally challenged, I recommend that certain amendments be made to strengthen the Woodburn ordinance. THE FEDERAL COURT DECISIONS U.S. District Judge Ancer Haggerty issued two court decisions concerning the Portland park exclusion ordinance. The case prompting most of my recommendations is Yeakle, et. al. v. City of Portland, Case No. 02-1447HA. Plaintiff Yeakle was collecting signatures in Pioneer Courthouse Square regarding the use of medical marijuana and was carrying a sign to support her cause. Yeakle then decided to go to the nearby Starbucks to get a cup of coffee and placed her sign on the "rainman" statue in the square. When she returned to the statue, she received a citation from Portland police officers for unlawfully resting the sign on the statue. Yeakle was then excluded from Pioneer Courthouse Square and two additional parks for 30 days. PROPOSED ORDINANCE CHANGES Attached for your review is a redline/strikeout version of my proposed modifications to the existing ordinance. I will explain each change and why I believe it is necessary. Conduct Must Occur Within a Park The judge stated: Moreover, under the ordinance, a person may be excluded from the parks for any violation of any state or city law and there is no prerequisite that the violation occur within a park or bear any relation to the use of the park. 47 '.' W" Scott Russell and Randy Westrick November 2, 2004 Page 2 To address the court's concern, Section 9B was modified to include an express requirement that an exclusion can only be issued based upon conduct that occurs within a park. Exclusion Limited to Park Where Conduct Occurs While I do not believe this has come up in Woodburn, one legal issue raised in Yeakle was that the Portland exclusion applied not just to Pioneer Courthouse Square (where the conduct occurred) but also to Ankeny Plaza and the South Park blocks. In response to this concern, my recommendation is to limit the exclusion to the park where the conduct occurred. This change is contained in the first paragraph of Section 9B. Warning Prior to Exclusion Except in Certain Cases The judge was troubled by the inflexibility of the Portland ordinance and what he deemed a "one-size-fits-a1l30-dayexclusion." The court stated: There are many other methods by which defendants could have met their governmental interest that would have imposed a comparatively minor impact on plaintiffs free speech rights. Most notably, the officers could have simply informed plaintiffs to take down the sign and in their discretion issued a citation. In response to this concern, Section 9B(2) requires the issuing officer to first give the person a warning and reasonable opportunity to desist from the violation. However, this is not required in all cases. Where a felony is committed, the incident involves controlled substances or alcoholic beverages, or the occurrence results in personal injuries or property damage, no warning is required. More Specific Notice of Exclusion The general language formerly contained in Section 9B(3) was replaceQ by more explicit requirements as to what information must be contained in a Notice of Exclusion. This change provides better notice to the person excluded and should make the ordinance more legally defensible. Stav Imposed Pendinf! Aooeal of Exclusion Under the Portland ordinance, the court was bothered by the lack of procedural due process, i.e., there was not an opportunity for individuals to contest the exclusion prior to it taking effect. The court stated: An exclusion takes effect immediately upon issuance and is not stayed pending appeal. Thus, a person excluded from a park is subject to arrest for re-entry as soon as she receives the exclusion notice. An appeal may be filed within five 48 ''lI!" y' Scott Russell and Randy Westrick November 2, 2004 Page 3 days, but the individual continues to be excluded from the parks. Thus, even if the exclusion is ultimately found to be invalid, the individual has been kept from the public park for at least a significant portion of the 30 days. To address this concern, Section 9B(4) now states that if a person timely appeals an exclusion, the exclusion is stayed during the appeal period. This strikes a balance between an individual's right to have a prompt review of an exclusion and the public's need to remove problem behavior from the parks. Individuals who want to pursue appeals can obtain almost immediate relief from the exclusion in the form of a stay. If the exclusion is ultimately affirmed by the Woodburn Municipal Court, the remaining period of the exclusion goes into effect. "Housekeeping" Changes in ADpeal Requirements In addition to the issues specifically addressed by the court, I made some housekeeping changes in the appeal requirements. The appeal must be filed within five days, served on the City Attorney, and contain a concise statement as to why the Notice of Exclusion was issued in error. Expedited DisDosition of Appeal Another concern raised by the court was the length of time it could take under the Portland ordinance to decide an appeal. The judge stated: Judge Panner reviewed an earlier procedural due process challenge to the former ordinance and found that the appeal process provided adequate protection. However, under the former ordinance, an appeal was made to the Commissioner of Parks , had to be filed within ten days and a decision had to be rendered within ten days of filing. The current ordinance requires filing of an appeal within five days, and there is no requirement that the appeal be decided within ten days. Thus, under the revised ordinance, an excluded individual loses his right to appeal the exclusion in half the time, and there is no longer the safeguard that his appeal will be adjudicated within ten days. To address this concern, Section 9B(5)(c) now states that an appeal hearing must be held and a decision on the appeal must be made within ten days after the appeal is filed. This expedited review assures a quick determination on the exclusion and should make the ordinance more defensible. Administrative Waiver Guidelines Although an administrative waiver of provision was contained in the former ordinance, there were no guidelines provided for the exercise of administrative discretion. This was another legal issue raised in the Portland case. Section 9B(6) now gives some guidelines for the exercise of this discretion. These include the seriousness of the offense and the need of the person to be in 49 " T Scott Russell and Randy Westrick November 2,2004 Page 4 the park during the period of exclusion either for work or to attend or participate in a scheduled event. CONCLUSION I believe that these suggested changes are necessary to legally strengthen Woodburn's ordinance and to, hopefully, avoid some of the problems faced by Portland. Please provide me with your input so that we can present the proposed amendments to the City Council. Attachment: Proposed Section 9B 50 ''lIr' y" Section 98. Exclusion. In addition to other measures provided for violation of this Ordinance, or any of the laws of the State of Oregon, any peace officer, as defined by ORS 133.005(3), as amended, or any City of Woodburn park or parks maintenance official or employee designated by the City Administrator, or anv Citv of Woodburn Code Enforcement Officer may exclude any person who in anv Citv Dark violates any provision of this Ordinance, any City ordinance, any of the laws of the State of Oregon, or any rule or regulation duly made and issued by the by the City Recreation and Parks Department or the City Council from Effi.lf that-City parI< for a period of not more than 30 days. t 11 -No oerson shall enter or remain in a City Dark at any time that a Notice of Exclusion issued under this Ordinance excludina that oerson from that City Dark is in effect. 121 Before issuina a Notice of Exclusion under this Ordinance the issuina officer shall first aive the oerson a warnina and a reasonable oooortunitv to desist from the violation. A Notice of Exclusion shall not be issued if the oerson oromotly comolies with the direction and desists from the violation. No warnina shall be reauired if the oerson is to be excluded for committina any act ounishable as a felonv. or involvina controlled substances or alcoholic beveraaes. or which has resulted in iniurv to any oerson or damaae to any orooerty. Further. no warnina shall be reauired if the oerson to be excluded has been warned or excluded oreviously for enaaaina in the same unlawful conduct. (~+) \^lritten notice shall be given to any person excluded from any City park. Such notice shall specify the dates and places of exclusion.. A Notice of Exclusion under this Ordinance shall soecify the date the exclusion is to commence. the term of the exclusion. the City Dark that the oerson is to be excluded from. the orovision of law that the oerson violated. and a brief description of the offendina conduct It shall be signed by the issuing party. The Notice of Exclusion shall orovide information concernina the riaht to aooeal the notice and to aoolv for a temoorarv waiver from the effects of the notice Warning of consequences for failure to comply shall be prominently displayed on the notice. (41 Notices of Exclusion shall take effect immediatelY exceot that if a timely aooeal is filed under this Ordinance. the effectiveness of the exclusion shall be stayed oendina the outcome of the aooeal. If the exclusion is affirmed. the remainina oeriod of the exclusion shall become effective immediately uoon issuance of the Woodburn 51 ''III'' y (~~l (jv) Municioal Court decision. unless the Court sets a later effective .\ date. I I A person receiving such notice a Notice of Exclusion may appeal to the Woodburn Municipal Court to have the notice rescinded or the exclusion period shortened. The appeal shall be filed within 5 days of receipt of the Notice of Exclusion exclusion notice, unless extended by the' Court for good cause shown, (a) The appeal need not be in any particular form, but should substantially comply with the following requirements: (i) Be in writing (ii) Identify the date, time, and place of the exclusion (iii) Identify the name and address of the appealing party (iv) Identify the official who issued the exclusion (v) Contain a concise statement as to whv the Notice of Exclusion was issued in error (b) A copy of the appeal shall be served on the City Official who initiated the exclusion Attornev (c) +Ae--ArLappeal hearing shall be conducted bv the Woodburn MuniciDal Court and a decision on the aDDeal shall be made Aek:i within ten (10) days after the requost is made aDDeal is filed. +Re day may be postponed by: Ii) Agreement of the parties; or (ii) Order of the court for good cause. (d) The court shall promptly notify: (i) The person appealing; and (ii) The issuing official (e) At the appeal hearing the City and any interested parties shall have the right to present evidence and witnesses and be heard. After due consideration of pertinent information and testimony the Court shall render its finding issue a written decision. The finding de.cision of the Court will- -IDalLbe final. (6) (3) At any time within the 30 days, a person receiving such notice --.Q Notice of Exclusion may apply in writing to the City Administrator for a temporary waiver from the effects of the notice for good reason cause shown. In exercisina discretion under this section. the City Administrator shall consider the seriousness of the violation for which the oerson has been excluded. the oarlicular need of the oerson to 52 '.w" w. be in the Dark durina some or all of the oeriod of exclusion. such as for work or to attend or oarticioate in a oarticular event {without reaard to the content of anv soeech associated with that eventl. and anv other criterion the City Administrator determines to be relevant to the determination of whether or not to arant a waiver. The decision of the Citv Administrator to arant or denv. in whole or in Dart. a waiver under this section is committed to the discretion of the Citv Administrator. and is not subiect to aooeal or review. 53 "" T' COUNCIL BILL NO. ORDINANCE NO. AN ORDINANCE AMENDING ORDINANCE 2060 (THE WOODBURN PARK ORDINANCE) TO MODIFY THE PARK EXCLUSION PROCESS AND DECLARING AN EMERGENCY. WHEREAS, the City is responsible for the safe and orderly operation of City parks; and WHEREAS, in order to meet this responsibility, the City must enforce park regulations and manage and control unacceptable behavior; and WHEREAS, it is necessary that certain designated officials have the authority to eject persons from City parks whose conduct is unlawful to prevent such persons from continuing to engage in similar behavior in that park; and WHEREAS, it is necessary to amend Ordinance 2060 (the Woodburn Park Ordinance) to clarify that limiting an individual's freedom of speech or expression should not be a motivating factor in excluding an individual from a park; to provide an opportunity for a hearing before the individual is excluded unless the individual's conduct necessitates immediate exclusion; and to narrow the violations that may result in a individual's immediate exclusion; and NOW, THEREFORE, THE CITY OF WOODBURN ORDAINS AS FOLLOWS: Section 1. Section 9B of Ordinance 2060 is hereby amended to read as follows: Section 98. Exclusion. In addition to other measures provided for violation of this Ordinance, or any of the laws of the State of Oregon, any peace officer, as defined by ORS 133.005(3) or any City of Woodburn Code Enforcement Officer may exclude any person who in any City park violates any provision of this Ordinance, any City ordinance, any of the laws of the State of Oregon, or any rule or regulation duly made and issued by the by the City Recreation and Parks Department or the City Council from that City park pursuant to the provisions of this Ordinance. Page 1 - Council Bill No. Ordinance No. 54 l' T (1) No person shall enter or remain in a City park at any time that a Notice of Exclusion issued under this Ordinance excluding that person from that City park is in effect (2) An exclusion issued under the provisions of this Ordinance shall be for thirty (30) days. If the person to be excluded has been excluded from any park at any time, within two years before the date of the present exclusion, the exclusion shall be for ninety (90) days. If the person to be excluded has been excluded from one or more parks on two or more occasions within two years before the date of the present exclusion, the exclusion shall be for one-hundred eighty (180) days. (3) Before issuing a Notice of Exclusion under this Ordinance the issuing officer shall first give the person a warning and a reasonable opportunity to desist from the violation. A Notice of Exclusion shall not be issued if the person promptly complies with the warning and desists from the violation. No warning shall be required if the person is to be excluded for committing any act punishable as a felony, or involving controlled substances or alcoholic beverages, or which has resulted in injury to any person or damage to any property. Further, no warning shall be required if the person to be excluded has been warned or excluded from the park previously for engaging in the same unlawful conduct. (4) A Notice of Exclusion under this Ordinance shall specify the date the exclusion is to commence, the term of the exclusion, the City park that the person is to be excluded from, the provision of law that the person violated, and a brief description of the offending conduct. It shall be signed by the issuing party. The Notice of Exclusion shall provide information concerning the right to appeal the notice and to apply for a temporary waiver from the effects of the notice warning of consequences for failure to comply shall be prominently displayed on the notice. (5) Notices of Exclusion shall take effect immediately except that if a timely appeal is filed under this Ordinance, the effectiveness of the exclusion shall be stayed pending the outcome of the appeal. If the exclusion is affirmed, the remaining period of the exclusion shall become effective Page 2 - Council Bill No. Ordinance No. 55 '- y immediately upon issuance of the Woodburn Municipal Court decision, unless the Court sets a later effective date. (6) A person receiving a Notice of Exclusion may appeal to the Woodburn Municipal Court to have the notice rescinded or the exclusion period shortened. In order to be timely, an appeal must be filed within five (5) days of receipt of the Notice of Exclusion. (a) The appeal need not be in any particular form, but should substantially comply with the following requirements: (i) Be in writing (ii) Identify the date, time, and place of the exclusion (iii) Identify the name and address of the appealing party (iv) Identify the official who issued the exclusion (v) Contain a concise statement as to why the Notice of Exclusion was issued in error (b) A copy of the appeal shall be served on the City Attorney. (c) An appeal hearing shall be conducted by the Woodburn Municipal Court and a decision on the appeal shall be made by the Court within ten (I 0) days after the appeal is filed. (d) At the appeal hearing the City and any interested parties shall have the right to present evidence and witnesses and be heard. After due consideration of pertinent information and testimony the Court shall issue a written decision. The decision of the Court shall be final. (7) At any time within the exclusion period, a person receiving a Notice of Exclusion may apply in writing to the City Administrator for a temporary waiver from the effects of the notice for good cause shown. In exercising discretion under this section, the City Administrator shall consider the seriousness of the violation for which the person has been excluded, the particular need of the person to be in the park Page 3 - Council Bill No. Ordinance No. 56 ""!If T during some or all of the period of exclusion, such as for work or to attend or participate in a particular event (without regard to the content of any speech associated with that event), and any other criterion the City Administrator determines to be relevant to the determination of whether or not to grant a waiver. The decision of the City Administrator to grant or deny, in whole or in part, a waiver under this section is committed to the discretion of the City Administrator, and is not subject to appeal or review. Section 2. Emeraencv Clause. This Ordinance being necessary for the immediate preservation of the public peace, health, and safety, an emergency is declared to exist and this Ordinance shall take effect immediately upon passage by the Council and approval by the Mayor. Approved as to form7J.t'}fr- ~ City Attorney /1/o1/zootf Dale ' Approved: Kathryn Figley, Mayor Passed by the Council Submitted to the Mayor Approved by the Mayor Filed in the Office of the Recorder ATTEST: Mary Tennant City Recorder City of Woodburn, Oregon Page 4 - Council Bill No. Ordinance No. 57 ..". Y. ~ WOODBURN ~~llC IncorpOral(d 1889 . . November 2, 2004 TO: FROM: Mayor and City Council through City Administrator Scott D. Russell, Chief of POIiC~ SUBJECT: Liquor License - New Ou"et RECOMMENDATION: The Woodburn City Council recommend that the Oregon Liquor Control Commission approve a liquor license application for The Bunker Bar & Grill Inc. BACKGROUND: Applicant: The Bunker Bar & Grill 1575 Mt. Hood Ave. Woodburn, OR 97071 Owners: Priser, Terence 780 Gatch Street Woodburn, OR 97071 Wolf, Mark 66 Skagit Key St. Bellevue, WA License Type: Full on Premise Sales - Allows for the sale and seNice of distilled spirits, malt beverages, and wine for consumption on the licensed premises. On October 15, 2004 the Woodburn Police Department received an application requesting approval for a full on premise license for The Bunker Bar and Grill located at 1575 Mt. Hood Ave. Tere ce Priser and his brother Mark Agenda Item Review: City Administrator City Attomey t Finance 58 "~~ ... Mayor and City Council November 2, 2004 Page 2 . . Wolf are applying for a liquor license. Mr. Priser will be the operating owner of the establishment and Mr. Wolf will only be a financial partner. Mr. Priser holds an OLCC license for another establishment O&D Restaurant located at 1615 Mt. Hood Ave. The Woodburn Police Department has responded to five (5) calls for service at 0&0 Restaurant over the last 12 months, none of which were for liquor law violations. The Bunker Bar & Grill will operate 7 days per week. between the hours of 11 :00 AM and 02:00 AM. The entertainment will be recorded music, live music, OJ Music, lottery machines, and dancing. There will be no outdoor service of alcohol at this location. The establishment will have family dining in the front (South) side of the business and the adults only portion of the establishment will be in the rear (North) portion of the business. A mezzanine will separate these two sections. The police department has received no communication from the public or surrounding businesses in support of or against the change of ownership. In the addition general OLCC regulations Mr. Priser has agreed to the attached voluntary compliance plan in order to help prevent illegal activities from occurring in his establishment. At present the OLCC has not completed their investigation into the Issuance of a license for this establishment. DISCUSSION: The police department has completed a limited background investigation on the applicant business and found nothing of a questionable nature. An in- depth investigation was completed on the owners and no offenses that would preclude a license being issued or items of a questionable nature were located. Under the criteria identified by the OLCC and adopted by the City Council I find no reason not to recommend that council recommend to OLCC approval of the application. FINANCIAL IMPACT: None 59 '..... .... ~ ' lJ1~ l toU(\fG J t~.?1',l\I" OREGON LIQUOR CONTROL COMMISSION \ f LIQUOR LICENSE APPLICATION \ OCT 1 5 ;;,~~,~ PLEASE PRINT OR TYPE i L ~IOO - oS, 2.U."I3 <8 Apolication is being made for: ~I NSE TYPES . II On-Premises Sales ($402.60/yr) ~. ~ Commercial Establishment . a Caterer o Passenger Carrier a Other Public Location o Private Club a Limited On-Premises Sales ($202.601 a Off-Premises Sales ($100/yr) o with Fuel Pumps o Brewery Public House ($252.60) o Winery ($250/yr) o Other: Apolying as: o Individuals 0 Limited ~corporation Partnership ACTIONS o Change Ownership ~ew Outlet /0 Greater Privilege o Additional Privilege o Other . . .... .FOR CIT)' AND COUNTY USE ONLY \ 'I Iv! "" .,". - \. - ~ ; r county commission: (name of city or county) recommends that this license be: Granted 0 Denied 0 By: (signature) Name: (date) Title: OLCC USE ONLY Application Rec'd by: Date: ()(.,i..C IO.-t,-q 90-day authority: a Yes a No 1.~~licant{s): [See SECTION 1 of the Guide] CD ~..Q ~lA.\^ tQV"' ~ ~ 0r; \ \ 1= V't.. t @ @ "-.\~- @ 2. Trade Name (dba): ~- -~~- n- ~ ~V -~y- et, (;r-: \ \ 3. Business Location:J~1 (' M T. \-l.ocJ~, kh-rlbif'l\ Mdr'lM l!}11. ql~ 1 J (number, street, rural route) (city) (county) (state) (ZIP code) 4. Business Mailing Address: $0 \ \" M'\'. M ~l},o ~V3u.rJl\ O~. a.lo'l\ (PO box, number, street, rural route) (city (state) (ZIP code) 5. Business Numbers:~~\- q(\ \ - ~($lc~ Lbc, Q,l ~ ~ .(' (phone) (fax) aYes ~o .. 7. If yes to whom: Type of license: ~ 8. Former Business Name: ~(!)l~ r and complete, the OlCC may deny my license application. Datffr/t Date Datel @ Date 1-800-452-0LCC (6522) www.olcc.state.or.U5 60 1'" T The Bunker Bar & Grill Compliance Action Plan: 1. The Bunker will hold quarterly meetings with all employees to review: Applicable laws, this action plan, and the names of patrons suspected to be involved with drugs or any other unlawful activity. 2. The Bunker will post three signs inside the premises, indicating that no drug dealing or usage is permitted, and that the business invites and encourages police on the premises. One ofthese signs will be visible on the wall when entering and exiting the building; the other two will be posted on each restroom door. These signs will be in both English and Spanish. 3. A daily incident log will be kept on the premises. Any illegal or disturbing behavior will be logged. Also logged will be attempted violations of OLCC rule such as: Minors attempting entrance into the lounge/dance area or visibly intoxicated persons attempting entrance into the lounge/dance area. The log book will contain: a. Date, time, and type of incident b. Name or photo ofperson(s) involved c. Make, model, year, color, and license number vehicles associated with persons engaged in problem behavior d. Action taken by The Bunker employees during or after the incident 4. Any patrons observed to be engaged in the following illegal activity shall be permanently barred by The Bunker: a. Illegal Drug Activity b. Serious Fights or disturbances . c. Carrying Weapons Illegally 5. Any patrons observed or engaged in minor arguments or disturbances shall be barred by The Bunker for a period of at least six months. 6. The Bunker will constantly monitor restroom for illegal activity and excessive or SUSplClOUS use. 7. The Bunker will not serve any patron who shows signs of visible intoxication for the remainder of the day. If another patron is observed passing alcoholic beverages to the visibly intoxicated person (VIP), that patron will not be served for the remainder of the day either. 8. The Bunker will monitor operations especially dancing and will have appropriate numbers of security personnel (as determined by the industry standard for ratio of patrons to security) to monitor both the dance area inside the restaurant and outside the business as neccessary. 61 "1r T 9. The Bunker will insure that any security guards employed shall be properly trained in accordance with Oregon Department of Public Safety Standards and Training rules and state law The Bunker Restaurant 1575 Mt. Hood Ave. Woodburn, OR 97071 ~- \.~ Responsible Person: ~ Signature. 62 " T ~/~~j\ '."." ".' '\rf.T ....'... .. " I" ," ....... WQQDBlL~N J n ( e r II :: f II t t d 1 8 S 9 13A ~~ . . November 8, 2004 TO: Honorable Mayor and City Council through City Administrator ,. FROM: Jim Mulder, Director of Community Development /Jy,\ Planning Commission's Approval of Planned Unit Development 04-04 SUBJECT: RECOMMENDATION: No action is recommended. This item is placed before the City Council for information purposes in compliance with the Woodburn Development Ordinance. The City Council may call up this item for review if it desires. BACKGROUND: On October 28, 2004, the Planning Commission adopted a final order approving PUD 04-04 for modification of Phase I of the Hazelnut/Miller Farm PUD (Planned Unit Development Case File No. 92-01) to consolidate lot #s 25, 26, 27, and 28 into three lots (proposed lot #s 25, 26 and 27) located at 1162, 1174, 1186 and 1188 Goose Creek Road in the RS zone. The subject properties can be identified on Marion County Tax Assessor's Maps as Township 5 South, Range 1 West, Section 7BD Tax Lots 1800, 1900, 2000, 2100. The properties are zoned Single Family Residential (RS) and designated Residential (less than 12 units per acre) on the Comprehensive Plan Map. The properties to the north, south, east and west are zoned RS and designated Residential (less than 12 units per acre) on the Comprehensive Plan Map. Residential homes occupy properties to the north, east and west and the parcel to the south is a maintained greenway. The subject properties are located outside of the 500-year floodplain, and there are no wetlands on the site. On June 25, 1992, the Woodburn Planning Commission approved the Hazelnut/Miller Farm PUD (Planned Unit Development Case File No. 92-01). The project consisted of a 71 lot PUD located on 16.59 acres located east of Boones Ferry Road, north of Highway 214 and south of Tukwila Drive. The original Hazelnut/Miller Farm PUD consists of two Phases. Phase I includes 55 lots on the southern portion of the property and Phase II includes 1 6 lots on the northern portion of the property. The approved lots range in size from 4,077 square feet to 12,700 square feet. The minimum required street width (curb to curb) of Miller Agenda Item Review: City Administrator City Attorney N l 63 ~" w,. Honorable Mayor and City Council November 8, 2004 Page 2 . . Farm Road was 26 feet, and the minimum required street width for the internal loop streets (including Goose Creek Road) was 24 feet wide. Sidewalks were required on both sides of Miller Farm Road. Sidewalks were not required on the internal loops. A "Good Neighbor" fence was required adjacent to the existing residential development. Country Club Road was shown as being extended through the Phase II portion of the property. On May 10, 1994 the Woodburn City Council passed Ordinance 2121, vacating the existing Country Club Road public right-of-way. The 1992 Hazelnut/Miller Farm PUD decision for Phases I and II included setbacks, lot dimensions, lot coverage and building height that varied from the requirements in the Woodburn Zoning Ordinance and the Woodburn Subdivision Standards. The front yard setback was reduced from 20 feet to 18 feet along Miller Farm Road and 5 feet on all other roads. The side yard setback was reduced from 5 feet to 0 feet on one side and 4 feet on the other side. The rear yard setback for an interior lot was reduced from 24 feet for a one-story home, 30 feet for a two story building, and 36 feet for a two and one-half story home to 15 feet on all lots adjacent to existing homes, 5 feet minimum on lots adjacent to the golf course and 10 feet on all other lots. The required minimum lot width was reduced from 60 feet to 42 feet and the minimum lot depth was approved at 60 feet. Lot coverage was increased from 35% to 55%. The Phase I plat was recorded with Marion County on October 2, 1992. On July 25, 2002, the Woodburn Planning Commission approved a modification (PUD 02-01, Conditional Use 02-02, Variance 02-02) of the original Hazelnut/Miller Farm PUD decision to realign the northern interior looped street (Tracy Lane), increase the total PUD acreage to 16.99 acres and change flexible PUD standards to facilitate the "Joy Village" development. The "Joy Village" PUD modification was approved prior to recordation of the original Phase II plat. The approved re- plot of Phase II was recorded with Marion County on February 7,2003. Lot #s 25, 26, 27 and 28 are located in Phase I of the Hazelnut/Miller Farm PUD and were not affected by the 2002 PUD modification. The applicant is requesting to modify the original Hazelnut/Miller Farm PUD approval by consolidating lots # 25, 26, 27 and 28 of Hazelnut/Miller Farm PUD Phase I into three lots (proposed lot #s 25, 26 and 27). A majority of the lots in Phase I have been developed with town homes (i.e., two single-family dwellings attached by a common wall along a lot line without a setback) and detached single-family residences. The applicant is proposing to eliminate one town home lot in the consolidation, reducing the overall units for Phases I and II from 71 to 70 units. The applicant is not proposing to modify the previously approved street width of 24 feet and right-of-way of 40 feet for Goose Creek Road. The applicant is proposing to retain the 3 required off street parking bays currently 64 Honorable Mayor and City Council November 8, 2004 Page 3 . . located on the subject property, which is consistent with the approval of no on street parking on Goose Creek Road in the original decision. The applicant intends to construct detached single-family dwellings on the proposed consolidated lots 25, 26 and 27. The original Hazelnut/Miller Farm PUD approval allowed for, though did not limit development to, the construction of townhomes on lot #s 25, 26, 27 and 28. Development on the proposed lots was not limited to town homes in the original decision, and detached single-family dwellings are an outright permitted use in the RS zone. In addition, the Miller Farm Homeowners Association has indicated their support for the proposed lot consolidation. The development of the proposed lots as detached single-family residential units is therefore compatible with the original intended use of the subject properties. DISCUSSION: None. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. 65 l' T ~~~ ~ WOQ!!BURN InrorporalrJ f889 A l3B ~,~ . . November 8, 2004 TO: Honorable Mayor and City Council through City Administrator '/ FROM: Jim Mulder, Director of Community Development~;JYY1 I i/ SUBJECT: Planning Commission's Approval of Design -Review 04-17 and Variance 04-24 RECOMMENDATION: No action is recommended. This item is placed before the City Council for information purposes in compliance with the Woodburn Development Ordinance. The City Council may call up this item for review if it desires. BACKGROUND: On November 4, 2004, the Planning Commission adopted a final order approving Design Review 04-17 for two 32 square foot pole signs (each incorporating a readerboard) 12 feet in height on the property located at 965 and 1025 N. Boones Ferry Road. The Planning Commission also approved Variance 04-24 to Section 3.110 of the Woodburn Development Ordinance to allow for two pole signs in the P /SP zone; to allow existing wall signs for the Woodburn School District, Lincoln Elementary School and French Prairie Middle School totaling approximately 149 square feet to exceed 32 square feet of wall area; to allow the proposed pole signs to exceed 6 feet in height; to allow the number of permitted free standing signs on the site to be exceeded to allow for the two proposed pole signs and three existing monument signs and to allow for internal illumination of the proposed two pole signs. The subject property is located at 965 and 1025 N. Boones Ferry Road. It can be identified specifically on Marion County Assessor Map T5S, 1W, Section 07BD, 07CA & 07CB, Tax Lot #2300. The subject property is approximately 24 acres in area with 990 feet of frontage on N. Boones Ferry Road and 1,140 feet of frontage on Highway 214. No wetlands are located on the subject site and it is located outside of the 500 year floodplain. The subject property is zoned Public/Semi-Public (P /SP) and designated Open Space and Parks on the Woodburn Comprehensive Plan Map. French Prairie Middle School, Lincoln Elementary School, a aintenance office and the sc I Agenda Item Review: City Administrat City Attorney _ Finane 'Ill 66 1"r Honorable Mayor and City Council November 8, 2004 Page 2 . . district's administration office are located on the subject site. The properties to the north are zoned Single Family Residential (RS), designated Residential Less Than 12 Units Per Acre on the Woodburn Comprehensive Plan Map, and are the location of single family dwellings. The properties to the west of the subject site are zoned Retirement Community Single Family Residential (R 1 S), designated Residential Less Than 12 Units Per Acre on the Woodburn Comprehensive Plan Map and are the location of single family dwellings. The properties located to the east of the subject site (across Boones Ferry Road) are zoned RS and Commercial Office (CO), designated Commercial and Open Space and Parks on the Woodburn Comprehensive Plan Map, and are the location of commercial uses and a church. The properties located to the south of the subject site (across Highway 214) are zoned Medium Density Residential (RM) and CO, are designated Residential Greater Than 12 Units Per Acre and Commercial and are the location of residential dwellings and commercial uses. DISCUSSION: None. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. 67 ".' Y" /-, ~ ~1c-~~ ~ WOQQBl.L~N I,'rorr~ratrd 1839 ~~13C . . November 8, 2004 FROM: Honorable Mayor and City Council through City Administrator /1 Jim Mulder, Director of Community Development r Planning Commission's Approval of Conditional us~ 04-09 TO: SUBJECT: RECOMMENDATION: No action is recommended. This item is placed before the City Council for information purposes in compliance with the Woodburn Development Ordinance. The City Council may call up this item for review if it desires. BACKGROUND: On October 28, 2004, the Planning Commission adopted a final order granting Conditional Use approval to Advance America to establish a payday loan business within a 1,200 square foot tenant space located at 1741 Mt. Hood Avenue in the North Park Plaza Shopping Center. The property is located at the northwest corner of Mt. Hood Avenue and Highway 99E, and zoned General Commercial (CG). A payday loan establishment requires conditional use approval in the CG zone. The subject property can be identified on Marion County Tax Assessor's Maps as Township S South, Range 1 West, Section 08A, Tax Lot# 4000. The subject property is zoned Commercial General (CG) and designated Commercial on the Woodburn Comprehensive Plan Map. An existing integrated business center, including buildings, landscaping, and parking, is located on the subject site. Current site uses include: existing retail and restaurant services. The adjacent properties to the east, west and south (across Mount Hood Avenue) are also zoned CG and designated Commercial on the Woodburn Comprehensive Plan Map. The commercial properties to the east are from south to north: vacant, in use as a steel building contractor's office/warehouse, and the location of a motor sports dealership. The commercial properties located to the south and west are currently in use as integrated business centers. The property to the north is zoned Industrial Park (IP) and designated on the Woodburn Comprehensive Plan Map as Industrial. A tractor dealer and industrial storage are located on the property to the north. No wetlands are located on the subject site and it is located outside of the SOO-year floodplain. Agenda Item Review: City Administrat City Attorney tV 1 ~ Finane ~ 68 "'IF' T Honorable Mayor and City Council November 8, 2004 Page 2 . . Previous applications (Design Review Case File No. 04-04, Variance Case File No. 04-16, Variance Case File No. 04-17, Design Review Case File No. 04-03, Subdivision Case File No. 2002-05, Subdivision Case File No. 1997-02, and Site Plan Review Case File No. 1996-21) were submitted on the subject property. On August 26, 2004 the Woodburn Planning Commission approved a design review request for a bank/two-lane drive through facility on the eastern side of the existing shopping center building. On May 21, 2004 the Community Development Director approved an administrative design review request for fac;ade improvements to the North Park Plaza Shopping Center building. On December 12, 2002, the Planning Commission approved the subdivision of the North Park Plaza Shopping Center into 7 lots. On July 24, 1997, the Planning Commission approved the subdivision of the North Park Plaza Shopping Center into 6 lots. The Planning Commission also approved a 6,521 square foot video/sales building. The latter two above-mentioned land use actions were not acted upon by the property owner. DISCUSSION: None. FINANCIAL IMPACT: There is no financial impact associated with the recommended action. 69 . MEMORANDUM OPINION NO. 2004-04 TO: Mayor and City Council John C. Brown, City Administrator Jim Mulder, Community Development Director FROM: N. Robert Shields, City Attorneyl DATE: November 9,2004 RE: Ballot Measure 37 Implementation BACKGROUND On November 2, 2004, the voters passed Measure 37 by a 60%-40% margin. Cities, counties and the state are now scrambling to understand and comply with this new law. In early September, I issued a legal opinion providing an overview of the measure. The present legal opinion is intended to assist you in making the decisions necessary to implement the measure. While it is important not to panic, it is also important to understand that the measure has significantly changed land use law and that city procedures will be impacted. NOT THE SAME AS MEASURE 7 Measure 37 is different from Measure 7 in important ways. Measure 7 was passed by the voters in 2000 and struck down by the courts before it went into effect. Measure 7 was a constitutional amendment while Measure 37 is statutory. Unlike Measure 7, Measure 37 can be amended or even repealed by the Oregon legislature. However, because the measure passed by such a wide margin, the legislature may be reluctant to change it in any significant manner. LEGAL CHALLENGES TO MEASURE MIGHT BE UNLIKELY Because Measure 37 is statutory and not a constitutional amendment, the consensus among government attorneys is that it will be much more difficult to legally challenge. Oregon constitutional amendments are subject to numerous technical challenges not available against statutory enactments. The most often discussed challenge is one based on constitutional equal protection (i.e., that land use regulations under Measure 37 might I The author acknowledges the contribution of various other city attorneys who have generously shared their knowledge and opinions on Measure 37. "'lit' y- City Council John C. Brown November 9, 2004 Page 2 impact one property different than a neighboring property). However, a similar legal challenge was made against California Proposition 13 on this legal theory, which was unsuccessful. As of yet, no group has announced that it will file a legal challenge. EFFECTIVE DATE Measure 37 is effective on December 2,2004. COMPENSATION FOR REDUCTION IN PROPERTY VALUE Measure 37 requires the government to pay "... the owner of ... property . .. just compensation ..." when it enacts or enforces a "land use regulation" that was passed "after" the current "owner," or a defined "family member" in the chain of title, "became the owner" of the subject property, if the regulation "restricts the use of... property or any interest therein" and "... has the effect of reducing the fair market value of the property." "Just compensation" is the amount of the "reduction" in fair market value as of the date of a written demand for compensation. The "land use regulation" is not limited to just restrictions on the type of uses permitted in a zone. It applies to any regulations, defined by the measure that may impact value. PAY OR FORGO ENFORCEMENT OF REGULATION If the owner of a property proves that a "land use regulation" restricts property use and reduces value then the government that adopted the regulation must either: 1. Pay "just compensation" to the owner of the property an amount equal to the reduction in value; or, 2. Forgo enforcement by modifying, removing or not applying the regulation to the property. EXCLUSIONS Some types of regulations are excluded from the measure requirement that compensation be paid. These exclusions are not well defined. They may be clarified by the legislature and are likely to be litigated. The exclusions include: 1. public nuisances that are "commonly and historically" recognized; 2. public health and safety regulations; 3. regulations required in order to comply with Federal law; and, 4. regulations restricting or prohibiting the use of property for the purpose of selling pornography or performing nude dancing. '.,.' T City Council John C. Brown November 9, 2004 Page 3 CLAIMS AND COURTS Measure 37 requires that owners make a written demand for compensation to the government whose regulation applies to their property. Compensation is due if the regulation remains in force with regard to the property 180 days after the written demand is made. After 180 days the owner can file an action in circuit court for compensation. If the owner wins, the court must award attorney fees and costs. Measure 37 expressly authorizes governments to adopt or apply "procedures for the processing of claims." However, the measure also explicitly states, "in no event shall these procedures act as a prerequisite to the filing of a compensation claim. ..." RETROACTIVITY Measure 3 7 is retroactive in that it applies to land use regulations in place prior to its adoption. Application of the measure relates back to the date of property acquisition by the current owner, or back to when the current owner's familial predecessors (as defined broadly by the measure) acquired the property. The Measure 37 provisions requiring compensation expressly reach back to the land use regulations that were in effect when the current owner's familial predecessor took title. However, the waiver provision does not appear to be retroactive in the same way. The waiver provision requires only that the current owner be permitted to use the property in the same manner that existed when the current owner purchased the property. FOR EXAMPLE: An "owner" acquires property in 1999 from an aunt who inherited it from her grandfather who bought it in 1939. Under the measure, the current "owner" can claim compensation for enforcement of any land use restrictions adopted after 1939. The amount of "just compensation" will be the amount of the reduction in fair market value as of the date of a written demand for compensation. However, if the government decides to forgo enforcement of the land use regulation, the waiver provision only requires that the current owner be permitted to use the property in the same manner that existed when the current owner purchased the property. DEFINITION OF "LAND USE REGULATION" Measure 37 creates its own broad definition of "land use regulation". This includes "any statute regulating the use of land or any interest therein; administrative rules and goals of the Land Conservation and Development Commission; local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances; metropolitan service district regional framework plans, functional plans, planning goals and objectives; and statutes and administrative rules regulating farming and forest practices." "!If' Y" City Council John C. Brown November 9,2004 Page 4 JUST COMPENSATION IS MEASURED FROM DATE OF WRITTEN DEMAND Just compensation is the "reduction in fair market value" resulting from the land use regulation measured not from when the restriction was adopted or enforced, but as of the date of written demand for compensation. PROCESSING OF CLAIMS The true financial impact of Measure 37 is unknown. However, the "Estimate of Financial Impact" contained in the state voter summary estimated that Measure 37 "would require local government administrative expenditures to respond to claims for compensation of between $46 million and $300 million per year." Measure 37 clearly grants the power to local governments to enact procedures for processing claims. However, the measure then severely limits the usefulness of a local claim mechanism by stating that such procedures are not a prerequisite to filing a claim for compensation in circuit court. Whether a local government can force a property owner to obtain an appraisal, pay a claim-processing fee, or even fill out an application with information sufficient to enable the claim to be reviewed are all open questions. RECOMMENDA TIONS The implementation of Measure 37 presents a significant challenge. recommendations are as follows: Some . Pass a Claims Processing Ordinance. Many cities and counties are working on such an ordinance and I have already obtained some draft documents. Legally, it is unclear what can be required of an owner asserting a claim. However, it seems that, at a minimum, such an ordinance would be useful to the city to determine the basic facts relevant to a claim. . Develop an Administrative Procedure to Process Claims. Such a procedure would be administered by the Planning Department and would implement the Claims Processing Ordinance. . Evaluate All Planning Programs. With the changes in legal rules, the Planning Department should reassess all ongoing programs. The state is currently doing this through the Department of Land Conservation and Development. It should also be done at the local level. . Prepare for Prior Regulation Research. In order to evaluate claims, information concerning prior land use regulations will be needed. Efforts should be made by the Planning Department to begin preparing this information. ".. T WOODBURN AREA CHAMBER OF COMMERCE WOODBURN CITY COUNCIL REPORT November 8, 2004 The Woodburn Area Chamber of Commerce continues to bring valued services and programs to its membership and the Woodburn Community. Upcoming Events: Greeter's - November 12 Off for Veteran's Day weekend Greeter's - November 19 Simon Cornwell Funeral Chapel 7:30 - 9:00 a.m. Forum lunch - November 17 Noon-'I : 15pm at Tukwila Center for Health and Medicine Woodburn Police Chief Scott Russell and Marion County Under Sheriff Greg Olson speaking on the methamphetamine problem Greeter's - November 26 Off for Thanksgiving weekend Crystal Apple Awards Dinner-November 12 We need nominations from the community for deserving teachers, administrators, support staff of Woodburn School District, North Marion SO, Gervais SO, St luke School in Woodburn and lord HS at Maclaren Facility. The Chamber continues work on its 2005 Membership Directory and Community Guide. This award-winning publication is a testament to all of the things that make our community a wonderful place to own a business and raise a family, and is produced in partnership with our Chamber-member businesses. 11'" T Also included in your packet are statistics for our visitor's center. I'd like to call your attention to the incredible growth we've seen in the number of contacts and inquiries coming through our website during 2004. Your Woodburn Area Chamber is at work planning for the next level of development for this organization. President Alma Grijalva, challenges you to think about the next level to further support your success. Please call a board member and share with us where you see we need to go. Our goals include tourism and economic development that would bring jobs to Woodburn. This is your Chamber; tell us how we can better serve you! ..'1Ir. T III "iii tl N 0 I!) CO r-- I!) r-- I!) I!) I!) 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