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Agenda - 11/22/2004 WOODBURN CITY COUNCIL AGENDA NOVEMBER 22, 2004 - 7:00 P.M. 1, CALL TO ORDER AND FLAG SALUTE 2. ROLL CALL 3. ANNOUNCEMENTS AND APPOINTMENTS Announcements: A. In observance of Thanksgiving, City Hall will be closed on November 25 and 26. The Woodburn Public Library and Aquatic Center will be closed on November 25th only. B. There will be a special meeting of the Woodburn City Council on November 29,2004, at 7:00 p.m. in the Council Chambers. C. The Holiday Tree Lighting and Caroling Party will be held on December 5,2004 starting at 5:00 p.m. at the Settlemier House followed by a candlelight procession to Warzynski Plaza for the City's Tree Lighting Ceremony. There will be entertainment, refreshments and a visit from Santal D. A joint work session of the Woodburn City Council and the Woodburn Planning Commission concerning the transportation system plan will be held on December 6,2004, at 6:30 p.m. in the Council Chambers. E. The Mayor's Holiday Concert featuring local musicians will be held at Woodburn High School on December 6 and 7 at 7:00 p.m. Appointments: None. "H'lbr~ interpretes disponibles p'lr'l aquell'ls personas que no h'lblan Ingles, previo 'lcuerdo. ComunTquese al (503) 980-2485." November 22, 2004 Council Agenda Page i .. T I' 4. PROCLAMA TIONS/P RESENT A TIONS Proclamations: None. Presentations: A. Police Facility Task Force 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 November 8,2004, regular 1 and executive sessions Recommended Action: Approve the minutes. B. Woodburn Public Library Board minutes of October 13, 2004 13 Recommended Action: Accept the minutes. C. Woodburn Recreation and Parks Board draft minutes of 17 November 9, 2004 Recommended Action: Accept the draft minutes. D Woodburn Planning Commission minutes of October 28, 2004 19 Recommended Action: Accept the minutes. E. Woodburn Public Library Monthly Report for October 2004 32 Recommended Action: Accept the report. F. Claims for October 2004 33 Recommended Action: Receive the report. November 22, 2004 Council Agenda Page ii .. .,.1' G. Police Department Statistics - October 2004 Recommended Action: Receive the report. 38 H. Woodburn Memorial Aquatic Center Revenue Comparison Recommended Action: Receive the report. 45 I. Status, Boones Ferry Road/Hwy. 214 Temporary Signal Recommended Action: Receive the report. 46 J. Highway 214 Sidewalks - Phase 2 Recommended Action: Receive the report. 47 9. TABLED BUSINESS None. 10. PUBLIC HEARINGS None. 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. 2543 - Resolution authorizing the transfer of 49 operating contingency appropriations during fiscal year 2004-05 Recommended Action: Adopt the resolution. 12. NEW BUSINESS A. Discussion Regarding Measure 37 Implementation 51 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. Community Development Director's Approval of Partition 04-05 52 (1539 Mt. Hood Avenue) November 22, 2004 Council Agenda Page iii .. " .....'. '9' 14. CITY ADMINISTRATOR'S REPORT 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 22, 2004 Council Agenda .. 'T" T Pageiv SA COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, NOVEMBER 8,2004. CONVENED. The meeting convened at 7:00 p.m. with Mayor Figley presidiIlg. In observance of Veteran's Day, she expressed her feelings on the importance of this day especially when our country is at war and military personnel are risking their lives in the service of our country. She offered assistance to local families of military personnel by either providing some help or giving them a name of a person to contact that will be able to assist them. She observed a moment of silence in honor and memory of military personnel who have given their lives in the service of our country. 0130 ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Present Present Present Present Absent Present Staff Present: City Administrator Brown, City Attorney Shields, Public Works Director Tiwari, Police Chief Russell, Community Development Director Mulder, Park & Recreation Director Westrick, Police Captain Tennant, Building Official Krieg, Recreation Services Manager Nugent, Teen Scene Program Manager Steyaert, Recorder Tennant Mayor Figley stated that Councilor Nichols was not in attendance due to illness. 0152 ANNOUNCEMENTS. A) Veteran's Day Closures: In observance of Veteran's Day, City offices and the Library will be closed on Thursday, November 11, 2004. The Aquatic Center will remain open for regular business. B) Planning Commission meetings regularly scheduled for November 11 and 25, 2004 have been cancelled due to holiday observance, however, a work session will be held on November 10, 2004 in the City Hall Conference Room at 7:00 p.m. and a special meeting will be held on November 18,2004 at 7:00 p.m. in the City Hall Council Chambers. C) Aquatic Center Program "Flick N Float" will be held on November 12, 2004 from 7:00 pm to 9:30 pm and patrons will be able to relax in the pool while watching the movie "Shrek 2". D) Aquatic Center will be closed on November 20, 2004 for a swim meet. Page 1 - Council Meeting Minutes, November 8, 2004 1 COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING E) Thanksgiving Day Closures: City business offices will be closed on November 25 and 26, 2004. The Library and Aquatic Center will be closed on Thursday, November 25, 2004. 0220 PRESENT A TION: EMPLOYEE INTRODUCTIONS. A) Recreation Program - Recreation Services Manager Nugent introduced Dusky Steyaert as the City's new Teen Scene Program Manager. B) Police Department - Police Chief Russell introduced Captain Tom Tennant who will be overseeing the Support Division of the department which entails police work in all areas other than traffic and patrol. Chief Russell stated that he is still in search of a second Captain who will oversee the work ofthe traffic and patrol divisions. C) Building Division - Mayor Figley read a letter from Don Judson, Mid Valley Bank CEO, expressing his appreciation of the work done recently by Building Official Steve Krieg who worked with their architect on changes that were needed to the preliminary plan and then he worked over a weekend to finalize their building permit thereby allowing them to stay on their construction schedule for an end of January 2005 opening date. She stated that Mr. Krieg has an enormous work ethic, a great deal of good sense and judgement, and an incredible gift of giving people bad news in a way so that they do not hate him or the City. She appreciated his attributes and stated that he deserved public recognition for his work. 0607 CHAMBER OF COMMERCE REPORT. Doug Hess, representing the Chamber Board, stated that the Chamber is looking to build a strong and vibrant Chamber in partnership with the City. He invited the Council and City staff to contact the new Chamber Executive Director Nick Harvell to provide him with input on the Chamber's positive and negative aspects. The Chamber Board of Directors will be meeting on Wednesday, November 10th, to create a program of work for the coming calendar year. Upcoming Chamber events include the following: 1) Greeter's Program - November 19, 2004 will be held at Simon Cornwell Funeral Chapel from 7:30 am until 9:00 am; 2) Chamber Forum Lunch will be held on November 17th at 12:00 noon, Tukwila Center for Health and Medicine, with guest speakers being Police Chief Russell and Marion County Undersheriff Greg Olson on the topic of methamphetamine use; and 3) Crystal Apple Awards Dinner - November 12, 2004. Nominations are being accepted for these awards which will be given to teachers, administrators, and support staff of schools in our surrounding area. He stated that the Chamber is still working on its 2005 Membership Directory and Community Guide in partnership with their Chamber members. He also distributed copies ofthe Chamber statistics relating to the Visitor's Center which shows the incredible growth in the number of contacts and inquiries coming through their website. Page 2 - Council Meeting Minutes, November 8, 2004 2 .. "F"W' COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING 0823 COMMUNICATIONS: LETTER FROM LOCAL STUDENT. Mayor Figley stated that she had received a letter from a local student who urged community members to donate food and! money to the AWARE Food Bank in an effort help those individuals who are in need of assistance. 0995 Thomas Drewek, 683 Second St., stated that at his last visit to the Council, he had commented on the cost to utilize the Aquatic Center and he requested that the Council look into the attendance records since he did not feel that the number of patrons justify the higher admission prices. He referred to his past experience as a Head Lifeguard and expressed his opinion that the operational costs could be reduced by reducing the number of staff members on duty when the pool is open for public use. He also suggested that the Chamber look into the issue of why one store is allowed to refuse to take back empty cans and bottles that they sell while other larger stores do take back the empty cans and bottles. He objected to a small store making an extra $.05 with each drink sold while the larger store has to payout an extra $.05 for a bottle or can that they may not have sold. He suggested that the Councilor Chamber look into why this is being allowed to happen. Lastly, he had recently received a telephone call from the Woodburn Mini-Storage informing him that his unit, along with a few others, had been broken in to and he is missing about $5,000 worth of items. He arrived at the storage unit at about I :00 pm and was told by the management that they had not contacted the Police Department since the Police will only respond to the tenant's call for service. He called the police at 2:00 pm and at 3:00 pm and was told that day shift was busy. He waited until 4:30 pm and still no police officer responded. Three days later, he still has not had an officer contact him about the break-in at the storage unit. He expressed his dissatisfaction with the Police Department since he is unable to obtain a report until there is a conviction but if there is no investigation then the criminal is not caught and he is unable to get a report. 1430 CONSENT AGENDA. A) approve the regular and executive session Council Minutes of October 25, 2004; B) accept the Planning Commission minutes of October 14, 2004; C) accept the Park Ave and Highway 214 intersection report; D) accept the Building Activity report for October 2004; E) accept the Planning Tracking Sheet dated October 29,2004; and F) accept the Annual Review of the Woodburn Development Ordinance report. Councilor McCallum referred to the report relating to the concerns brought up by the Council several months ago about the pedestrian crossing at Park Avenue to the Salud Medical Center and providing more reflectors or some other device to alert motorists of the Hwy. 99E median locations. He stated that ODOT has now responded back to the City stating that a traffic study was done last year with their findings being that the Park Avenue intersection at Hwy. 214 did not warrant a traffic signal and they funds are not available at this time to complete another study nor make any improvements to the area. Page 3 - Council Meeting Minutes, November 8, 2004 3 .. T' T COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING Administrator Brown stated that circumstances are subject to change at that intersection with the approval to build a Police Facility just west of the intersection. Construction of this facility may impact the traffic in the area and the State may be willing to re-evaluate the need in the future. MCCALLUM/COX... adopt the Consent Agenda as presented. The motion passed unanimously. Mayor Figley called for a brief recess at 7:28 p.m. and reconvened the meeting at 7:39 p.m.. 1621 PUBLIC HEARING: CONTINUATION OF NORTHWEST NATURAL GAS COMP ANY FRANCHISE HEARING. Mayor Figley opened the continuation of the public hearing at 7:40 p.m.. Councilor Cox declared a potential conflict of interest in that he owns Northwest Natural Gas stock worth approximately $6,000.00 but did not feel that it disqualifies him from participating as a Councilor on this issue. Administrator Brown stated that this hearing had been continued over the last few months for the purpose of giving the staff an opportunity to complete the negotiations of a new franchise with Northwest Natural Gas. For all of the time spent on this document, there is very little significant difference between this document and the one that has been in place for the last 10 years. Staffhas focused on maintaining the City's rights that were included in the prior franchise ordinance. He stated that the City was interested in (1) maintaining our ability to regulate the work and to make sure that any disruption of the right-of-way was corrected to the City's satisfaction, (2) the Public Works Department and City Engineer's office were adequately involved in the opening or closing public rights-of-way, and (3) to maintain the City's right to charge both a franchise fee and a privilege tax. Northwest Natural Gas was looking for more flexibility in the use of the right-of-way and less coordination with the Public Works Department, and, more significantly, asking that work required of them because of private development be compensated by private development. The proposed franchise ordinance would provide for location and relocation of the utility's facilities to be paid for by private parties or a private development where the location or relocation is for the benefit of a specific party or development. He stated that the reason for the short break before this hearing was to give the Council revised verbiage for Section 12 since gross revenue needs to be defined in the proposed bill. Staff is proposing that the language from the current ordinance replace the language in the proposed bill. Councilor McCallum stated that he understood their need for confidentiality but questioned if the City would be able to obtain the maps and lines in the case of an emergency. Attorney Shields stated that staff had expressed their concern about public works having access to the plans and the new ordinance provision does layout the foundation that Page 4 - Council Meeting Minutes, November 8, 2004 4 . .. -.. y' COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING needs to be laid under the public records law to control access to the documents but the City still has the documents. This language is similar to what has been adopted by the City of Tigard in their franchise ordinance with Northwest Natural Gas. Administrator Brown stated that the proposed ordinance does allow the City to perfonn an audit of their financial records at the expense of the City unless it is found that the franchisee has shorted the City in the calculation of their fees. In regards to the tax, it is a combination of a 3% franchise fee and 2% privilege tax. The franchise fee is a fee paid to the General Fund for the use of the right-of-way and the privilege tax is a fee paid into the Public Works fund for road and right-of-way projects. Councilor Lonergan questioned if the City ever receives any complaints regarding the service provided by the franchisee. Administrator Brown stated that he had not received a complaint on Northwest Natural Gas during his tenure with the City. No one in the audience spoke either for or against the proposed franchise ordinance. Mayor Figley declared the public hearing closed at 7:51 p.m.. BJELLAND/MCCALLUM... 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. On roll call vote, the motion passed unanimously. 2522 COUNCIL BILL NO. 2541 - ORDINANCE GRANTING A NON-EXCLUSIVE GAS UTILITY FRANCHISE TO NORTHWEST NATURAL GAS COMPANY. Councilor Sifuentez introduced Council Bill 2541. Recorder Tennant read the two readings of the bill by title only since there were no objections from the Council. BJELLAND/MCCALLUM... amend Council Bill 2541 by substituting the new Section 12 (1) which was distributed to the Council at this meeting. Councilor Cox stated that the language in the current ordinance had somehow been deleted by the word processor when documents were being re-drafted during the negotiations process and the amendment replaces the sub-section of Section 12 by putting back the language from the current ordinance. City Attorney reiterated that Section 12 (1) from the current ordinance will be inserted into the ordinance before the Council, and he then read the section into the record. On roll call vote, the motion to amend the ordinance passed unanimously. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared the bill duly passed with the emergency clause. 2935 COUNCIL BILL NO. 2542 - ORDINANCE AMENDING ORDINANCE NO, 2060 (THE WOODBURN PARK ORDINANCE) TO MODIFY THE PARK EXCLUSION PROCESS. Council Bill 2542 was introduced by Councilor Sifuentez. The two readings of the bill were read by title only since there were no objections from the Council. Chief Russell stated that the Police Department, along with the Parks Department, have Page 5 - Council Meeting Minutes, November 8, 2004 5e .. "F" T' COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING presented this bill to the Council for review and approval. The existing ordinance included provisions that were subsequently ruled unconstitutional in federal civil court and the proposed amendments to the current ordinance includes the changes required by the federal court. Councilor Cox questioned how many park exclusion orders have been written. Chief Russell stated that there have been about 6 orders written over the last 12 months. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill 2542 duly passed with the emergency clause. 3113 OLCC LIOUOR LICENSE: THE BUNKER BAR & GRILL. INC. (1575 MT. HOOD AVENUE). Staff recommended that the Council recommend to OLCC the approval of a full on premise sales liquor license to The Bunker Bar & Grill (owners Terence Priser and Mark Wolt). BJELLAND/COX... recommend to OLCC approve a liquor license application for The Bunker Bar & Grill Inc.. Councilor McCallum stated that it was his understanding that there was a separation between the bar / dance area and the family dining area. Chief Russell stated that the plans as drawn show the restaurant in the front part of the building, the lounge area in the rear with a mezzanine area. It was his understanding that the dancing will not start until 9:00 p.m. and the proprietor had mentioned to him that they are looking at ballroom style dancing in an effort to reach out to certain segments of the community. Councilor McCallum stated that the City has added a number of outlets over the last two years and one of the key points is scrutiny from our law enforcement. He questioned how often the liquor establishments are scrutinized by the Police Department. Chief Russell stated that his staff does about 9-20 bar checks on a monthly basis. Ifthere is an issue involving specific establishments, those establishments would take more of a precedence for bar checks than other licensees. Councilor McCallum stated that he does have concerns regarding the number of establishments in the Highway 99E area, however, the owners of this establishment have entered into a voluntary compliance agreement that seems to be very strong. It was noted that OLCC receives a recommendation from the City on an application but OLCC makes their own decision on the application. The staff recommendation is based on the criteria established by Council policy and on adopted OLCC law. On roll call vote, the motion passed unanimously. 3696 PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS. A) Planning Commission approval of Planned Unit Development 04-04 (Hazelnut / Miller Farm PUD): Modification of Phase I ofPUD Case File No. 92-01 Page 6 - Council Meeting Minutes, November 8, 2004 6 .. .... 'tt' COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING B) Planning Commission approval of Design Review 04-17 and Variance 04-24 (965 and 1025 N Boones Ferry Rd): Woodburn School District request for pole signs with reader board C) Planning Commission approval of Conditional Use 04-09 (1741 Mt. Hood Avenue): Allowance of payday loan establishment in a General Commercial (CG) zone Councilor Cox referenced the School District proposed signs and stated that the Council should recognize that a break is being given to the School District that would not be given to private business in the same circumstances. 3811 CITY ADMINISTRATOR'S REPORT. (A) Sale of Property to Habitat for Humanity: Administrator Brown stated that several years ago the City did an appraisal of properties owned by the City that might be considered as surplus property. One of the properties identified was a 2- lot parcel located on Gatch Street just south of Lincoln Street and the Mill Creek area. Much of the property is a slope to the bottom of the creek area and some of the land is in the wetland. Additionally, some of the property contains fill from various City projects from the dumping of soil and other materials over the years. The appraisal suggested that there might be adequate space for2 lots depending upon what could be done with compaction and wetland issues and a fair value might be $30,000 for each lot. The report also cautioned the City that an environmental analysis indicated that the fill may contain some materials that it should not have when it was dumped. A level I analysis was done and it was found that there were some things that might need to be excavated such as buried chunks of asphalt but it was not of great concern to the consultants. There are some issues to the usability of the property and the potential need for an engineered foundation in order to site a home on the property which may make the property less desirable to sell. The Habitat for Humanity is interested in doing a project in Woodburn and they had approached the City to see if development fees could be waived or reduced. An option available would be to sell one of the lots for an amount less than the appraised value such as $15,000 but they would be required to pay the full development fees which is about $15,000. If the Council would agree to selling the property at a reduced price, then staff proposes that a lot line adjustment be made to bring those two lots into a different configuration where the one facing the street would be smaller and more like a normal city lot size. This would then bring the property in away from the slope and wetlands. The City would maintain a 20 foot easement for the purpose of getting into the City property to the creek bottom for future potential development of the greenway. Mayor Figley expressed her support for the potential sale of the property as described by the City Administrator. Councilor Cox questioned if the property remaining would be for future public use rather than selling the land to another private party. Page 7 - Council Meeting Minutes, November 8, 2004 7 .. or' T' COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING Administrator stated that there are a number of development issues with the remainder parcel. He also stated that the a sales agreement would include language that ifthere was a problem with the property and the organization was not going to be able to use it, then the property would be returned to the City for sale price rather than allowing it to be sold to another party. It was the consensus of the Council to allow the City Administrator to move forward with the negotiations for the sale of the property to the Habitat for Humanity. (B) Administrator Brown thanked the voters of the City for the approval of the bond issue and he appreciated their confidence in the City. He also thanked the "Yes On" Committee that worked hard to get the measure passed and the next step is to build the facility. He reviewed the following list of work that will need to be done in the near future that would culminate in the construction of the facility: 1) meet with the Financial Advisor and Bond Counsel to look at the timing of the bond Issue; 2) pay the debt on the property and reduce the interest being paid on the interfund loan; 3) relocation of the driveway to the far east property line and public works staff will start the negotiating process with ODOT for an access permit in addition to laying out the parameters for the traffic impact analysis; 4) pre-design work has been done on this project but there is a need for an architect to complete the final design work and prepare a final document which will be put out to bid; 5) second access issue will be addressed during the design phase; 6) determination will need to be made if construction management will be done by the architectural firm or whether an independent construction manager will be hired to oversee the project; 7) preparation of the bid document, release of the bid, evaluation of the responses, and ultimately the award of the bid. It is anticipated that the facility will be completed and ready for occupancy by the end of the calendar year 2006. Councilor McCallum stated that the bond issue was sold on the need to get something done soon but he was pleased to see that staffis looking out for the taxpayer when determining a favorable time period in which to sell the bonds. The City team on the financing portion of this project will consist of the City Administrator, City Attorney, Finance Director, and City Recorder. The Police Chief and City Administrator will be in charge of architect and construction managers on this project. Councilor McCallum suggested that staff look into having an independent Construction Manager rather than relying on the architectural firm. Chief Russell also thanked the public and the "Yes On" Committee for their support of this project. Page 8 - Council Meeting Minutes, November 8, 2004 8 .. W"-".... COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING 5351 3) Chief Russell responded to comments made earlier by Mr. Drewek. He stated that the department has responded to and continues to respond to burglaries at storage units and owners do not need to be present but the owners are the ones who are able to tell the officer what has been stolen. There continues to be calls at storage units involving community property issues whereas a husband and wife in some sort of a domestic dispute do not agree as to who owns what property and the Police Department needs to be careful as to how this type of call is handled by the officer. In regards to availability of police reports, State law and department policies say that any police report when the case is closed (i.e. arrest has been made or closed because there is no ability to further the prosecution) the report is available to the public. Cases that remain open are not available and the public would need to contact the District Attorney's office. Lastly, he stated that the department was very busy last Friday and the department did try to make contact with Mr. Drewek on a couple of occasions but were unable to make the connection. Staffwill contact him to take the case. Mayor Figley expressed her appreciation for the clarification and reminded the public that, a mnllber of years ago, the Council did make a policy decision to put property crimes at a lower priority since calls in progress need to be attended to by the police staff. Councilor McCallum also stated that, when working on the police facility bond issue, many of his constituents had mentioned that they appreciated the contact and follow-up from the Police department when they called in a complaint. 5853 Memorandum Opinion on Ballot Measure37: Attorney Shields stated that he had prepared this memo in an effort to provide the Council some preliminary information on this measure which will take effect on December 2, 2004. The Council will be addressing this issue over the next few weeks. 6040 MAYOR AND COUNCIL REPORTS. Mayor Figley expressed her appreciation to the voters for the passage ofthe police facility bond issue. She also thanked the voters for her re-election as Mayor and stated that it was a privilege to serve the Woodburn community. Councilor Lonergan thanked the Police Chief for responding with a memo on some different complaints in the packet. Councilor Bjelland also thanked the voters who voted for him to continue serving in his Ward. He stated that his term on MW ACT expires December 2004 and if the Council so desires, he is willing to continue to serve on MW ACT. In regards to MW ACT, he stated that in the 2006-07 Pedestrian Bicycle Program recommended projects, Woodburn's 2nd phase of the sidewalk project on Highway 214 (completion of pedestrian ramp to N. Front Street) has been forwarded to the state-wide level for approval ($480,500 grant). A public hearing will be held before MW ACT at their next meeting on the applications for the Traffic Enhancement Program. The City submitted a grant application for the 3rd phase of the Highway 214/ Progress Way project ($622,400) and suggested that the City Page 9 - Council Meeting Minutes, November 8, 2004 9 .. T T COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING have a representative at the hearing to present testimony in support ofthis grant application. He stated that this 3rd phase would be the final link provision of sidewalks on both sides of Highway 214 out to Highway 99E and access to Front Street. It was noted that the initial grant was for over $1 million and, if all phases are completed, the total cost will be over $2 million to improve the pedestrian ways along Highway 214. The MW ACT public hearing will be held on December 8, 2004. Councilor Bjelland stated that it would be beneficial to have one person presenting the City's grant application and then have letters from other interested parties in support of this project. MW ACT will be making a decision on the recommended projects following the hearing. Tape 2 Councilor Sifuentez also thanked her constituents for giving her the opportunity to serve another term on the Council. She also stated that she had attended the League of Oregon Cities Conference and the topic of discussion was Measure 37 which was recently passed by the voters. She reported that attorneys are looking at the issue to see how it would affect local cities. She also stated that attendance at the conference does re-engerize her since it reinforces her belief in making the community a better place to live. Councilor Cox stated that he had received some calls from Senior Estates residents regarding City crews picking up garage sales signs that are placed in the public right-of- way. He stated that the public right-of-way does extend 8-10 feet back from the curb line and, even though it has been the law that signs are not to be in the right-of-way, he felt that the planner hired to enforce the sign code should focus on addressing the many other implementation problems identified in the sign ordinance. He reiterated that it is against the law to place the garage and real estate signs in the public right-of-way. 0319 EXECUTIVE SESSION. Mayor Figley entertained a motion to adjourn to executive session under the authority of ORS 192.660(1)(h) and ORS 192.660(1)(f). MCCALLUM./SIFUENTEZ.... adjourn into executive session under the statutory authority cited by the Mayor. The motion passed unanimously. The Council adjourned to executive session at 8:48 pm and reconvened at 9:05 p.m.. 0340 Mayor Figley stated that no action was taken by the Council while in executive session. In connection with the Baker vs City of Woodburn case relating to the Woodburn Stores reimbursement district issues and the points raised in the Court of Appeals in directing a remand to clarify that matter and bring it to conclusion, COXIMCCALLUM....direct the Public Works Director to prepare a report clarifying the issues raised by the Court of Appeals and file a report with the Council in response to those issues. The motion passed unanimously. Page 10- Council Meeting Minutes, November 8, 2004 10 ,. Y' W' COUNCIL MEETING MINUTES NOVEMBER 8, 2004 TAPE READING 0438 ADJOURNMENT. . BJRLLAND/SIFUENTEZ.... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 9:07 p.m.. APPROVED KATHRYN FIGLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page 11 - Council Meeting Minutes, November 8, 2004 11 .. ''9''' tr' Executive Session COUNCIL MEETING MINUTES November 8, 2004 DATE. CONFERENCE ROOM, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, NOVEMBER 8, 2004. CONVENED. The Council met in executive session at 8:51 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 Absent Present 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, City Recorder Tennant Special Legal Counsel: Paul Elsner The executive session was called under the following statutory authority: (1) ORS 192.660(l)(h) 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; and (2) ORS 192.660(l)(f) to consider records that are exempt by law from public inspection. ADJOURNMENT. The executive session adjourned at 9:04 p.m.. APPROVED KATHRYN FIGLEY, MAYOR ATTEST Mary Tennant, Recorder City of Woodburn, Oregon Page I - Executive Session, Council Meeting Minutes, November 8, 2004 12 .. ... It 8B MINUTES MONTHL Y MEETING OF WOODBURN PUBLIC LIBRARY BOARD DATE: October 13, 2004 ROLL CALL: Mary Chadwick - Present Yesenia Chavez - Absent Neal Hawes - Present Ardis Knauf - Present Kay Kuka - Present Patricia Will - Present Katherine Holland - Absent ST AFF PRESENT: Linda Sprauer, Library Director Vicki Musser, Recording Secretary GUESTS: None. CALL TO ORDER: President Pat Will called the meeting to order at 7 pm. SECRET ARY'S REPORT: seconded. The minutes of September 8, 2004 were approved and CORRESPONDENCE: None. PUBLIC COMMENT: None. DIRECTOR'S REPORT: Monthly Statistics: The monthly statistics were self- explanatory. Circulation statistics reflect a slight drop from previous years. The Tuesday 'People Count' is down, now that Music in the Park, which was held every Tuesday through the summer, is over. Tuesday, September the 28th, was an exception. Activities: The Library's new Youth Services Librarian, Deeda Stanley, is getting ready for fall in the Children's Room. She has been conducting Library tours with school children on a regular basis, and the YS fall program schedule is underway. Kids Book Club will be meeting on the 18th and the 25th from 3:30-4:30 pm. Infant-Toddler Time is on Tuesdays from 10:30-11 :30 am, and Spanish Story time is also held on Tuesdays, from 5:30-6:30 pm. The Library has a Family Storytime every week, which is held in the Multi-Purpose Room on Wednesdays from 10:30-11 :30 am. Two Library sponsored Archeology programs were held on October 9th and 10th. On the 9th, the Archeology Celebration was given at the Library and geared towards children. It was a great success with 20 children and 20 1 13 ......" '.., adults in attendance. Thirty people attended the adult Archeology program on the 10lh at city Hall. They kept the speaker after the program, asking questions and talking, for some time. The Third Thursday Teens program is happening every third Thursday. School has started and the teens are active. On October 21 st, the teens will be involved in a pizza 'tasteoff. Although the Library is continuing its regular programming, we are not planning many extra programs, since training time will be needed for the scheduled switch from Dynix to III coming soon. The Evening Book Group, which met on a regular monthly basis at the Library, has disbanded. The Morning Book Group, led by Marge Wells, is now meeting at Colonial Gardens. Anyone may join, and Vicki has Marge's phone number should any Board Member want to Jom. Volunteer of the Month: Beulah Jordan is the Volunteer of the Month. She has been a volunteer for five years, and began by taking books to the homebound. Nancy Condit, the Reference Librarian in charge of the Homebound program, would select books based on initially meeting the homebound person, and having them fill out a questionnaire regarding their likes and dislikes. Then Beulah would drive to the person's home, pick up the finished books, and drop off the new selections. Eventually the book delivery grew too heavy for Beulah, and she has since done a variety of volunteer jobs at the Library. Please thank Beulah if you see her. She is one of the volunteers behind the scenes, helping the Library to run smoothly. CCRLS: The Library is in the process of getting Library staff trained to use III. The Library will switch from Dynix to III (Innovative Interfaces, Incorporated) on December 22nd, as planned. CCRLS will initially train key members of the Library staff, and they in turn, will train everyone else, along with additional help from CCRLS. The Library will be closed on December 26,2004 this year, since the newly upgraded automation system might need some adjustments. Woodburn's was the only library scheduled to be of en that day. Regular hours will resume on December 2t . The Board questioned what effect III might have on patrons. Linda assured them that observable changes 2 14 .. or<< 'r OLD BUSINESS: would be minimal. The change from a text system to a graphics system a few years ago required a substantial adjustment, but any changes now should be welcome ones. A Board member also asked why the Library's automatic checkout machine does not check out books to patrons who have an overdue book or one on hold. It was explained that the self-checkout machine refers all patrons who need staff intervention to the Circulation desk, so that they can receive individualized attention. Holiday Hours: The Library will be closed for Thanksgiving on Thursday, November 25. It will reopen again on Friday, November 26. In December, the Library is open 10-8 pm on Wednesday, December 22, and Thursday, December 23. On December 24, the Library will be open from 8 am. until noon, and then closed until lOam on Monday the 2ih. Also, on January 1,2005 the Library will be closed. The Friends of the Library's bi-annual Book Sale will be taking place on Friday, October 15, and Saturday, October 16th from 10-4 pm. Neal Hawes, Library Board member as well as Treasurer for the Friends of the Library, gave the Board an update on the Book Sale, reminding them of the time honored tradition of allowing customers to purchase books for $1 a bag during the last hour of each days' sale. New CDs, covering the spectrum of musical genres, will be sold for $8 at the sale. Music in the Park: The Friends of the Library met with the City Council and presented them with a framed poster. Sandy Kinney, who chose the bands and was instrumental in the success of this year's concert series, was given roses and a Certificate of Appreciation. Mid Valley Bank and Renaissance Homes may both be sponsors for the 2005 concert series of Music in the Park. The next Friends of the Library meeting will take place on Monday, December 6, at 2:30 pm in the Carnegie Room. None. 3 15 .. ..."... NEW BUSINESS: THE CITY COUNCIL AND/OR MAYOR: ADJOURNMENT: Respectfully submitted, Vicki Musser A Community Center Task Force continues to work toward planning a new Community Center. Linda presented the Library Board with an overview of some of those plans, and asked the Board to sign a letter of support to send the task force. The motion was passed unanimously. Linda will work with Patricia Will, the Board President, to send the letter of support to the Community Center Task Force. BUSINESS TO/FROM The meeting was adjourned at 7:31 pm. 4 16 8e MINUTES Woodburn Recreation and Parks Board Tuesday, November9,2004 7:00 pm City Council Chambers [Q)u~VU 1, Herb Mittmann, Chair, called the meeting to order at 7 pm 2. Roll Call Members present: Herb Mittmann, Chair; Rosetta Wangerin, Vice-chair; Ann Meyer, Member; Cristal Sandoval, Member; Bruce Thomas, Member; Joseph Nicoletti, Member, Brad Hutchison Staff present: Randy Westrick, Director; Barbara Nugent, Recreation Services Manager; Dusky Steyaert, Teen Scene Program Manager; Paulette Zastoupil, A.A. 3. Approval of Minutes from October 12, 2004. Motion to accept the minutes was made by Herb Mittmann and seconded by Joseph Nicoletti. 4. Business from the Audience: Linda Sauer commented to the Board how beautiful the parks look with the leaves turning color for the fall. She also stated that she appreciated the help with the falling leaves this year. 5. Division Reports Recreation and Leisure Services - Barbara Nugent Barbara introduced Dusky Steyaert, Teen Scene Program Manager. Dusky came from Sherwood and has a Bachelor of Arts in Criminal Justice. Barbara announced that she needed to leave and attend two meetings scheduled tonight. WBY A, monthly Board meeting 7:00 PM Woodburn Adult Basketball League 7:00 PM Library She shared with the board that there is a real need for gym space in the Woodburn area. The schools are being used until 6 PM everyday under the Century 21st grant with youth programs. Aquatics Division - Steve Newport Aquatic Center report was written. Randy reported that the annual Aquatic Center cleaning went well; revenue is currently at 25%, which is right on target for the year. He also noted that attendance is 200 more than last year at this time. Friday night is Flick and Float night and the movie will be Shriek II. Parks and Facilities - Randy Westrick Community Center Randy Westrick shared with the board that Woodburn did not receive the KROC Initiative grant. The Task Force will meet again on December 8, 2004, to further plan a Community Center for the Woodburn citizens. 17 ~., ... Mill Creek Greenway A graphic artist is compiling a layout of the Greenway plan, with a draft being finished by the end of the week. The plan will be presented to the board in December. Park Ordinance - Exclusions Randy reported that the Council made changes to the exclusion ticket. The Council added a 6-8 month exclusion for repeat offenders and provides a better due process which offender can ask for a hearing by the Judge with an appeal process. 6. Special Event Policies The Board discussed the revisions on the Special Event Polices and heard comments from concerned Woodburn citizens. They concluded that the neighbors would be involved in the dBa testing before the new policy is written. The Livability Task Force is also working on the policy and Herb will bring that information to the board workshop on November 17, 2004. Angela Racogrande 330 S. Settlemier Av Woodburn, OR 97071 Terry and Beth Bergerson 423 S. Settlemier Av Woodburn, OR 97071 Kerrie Christensen 516 Harrison Woodburn, OR 97071 John and Linda Sauer 402 Oak St Woodburn, OR 97071 9. Future Board Business · Special Events Policy · Board Retreat, November 17, 2004 at 5:30 p.m. · Next meeting on December 14, 2004 10. Board Comment None. Meeting was adjourned at 8:05 pm 18 .. T" T' 8D WOODBURN PLANNING COMMISSION October 28, 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 Grlgorleff Knoles Bandelow P P P P P P Staff Present: Jim Mulder, Community Development Director Naomi Zwerdllng, Senior Planner MINUTES A. Woodburn Plannlna Commission Minutes of October 14, 2004 Vice ChairDerson Youna moved to accept the minutes as presented. Commissioner Knoles seconded the motion, which unanimously carried. BUSINESS FROM THE AUDIENCE None COMMUNICATIONS A. Woodburn Cltv Council Minutes of Seotember 27, 2004 PUBLIC HEARING The applicant for the Johnson RV Sales application requested to reverse the order of the two public hearings because the necessary people had not yet arrived for that item. ChairDerson Lima moved to accept that request and Commissioner Knoles seconded the motion. Motion carried unanimously. A. Deslan Review 04-17 and Variance 04-24. reauest to install two oole slans and associated Variances at 965 N. Boones Ferry Rd.. Woodburn School District. aoollcant. EXPARTE CONTACTS Commissioner Griaorieff reported her daughter attends Woodburn schools. All of the Commissioners indicated they were familiar with the site. Staff read the applicable ORS Statement and provided a presentation as reflected in the Staff Report. Staff recommended approval of Design Review 04-17 A-B and Variance 04-24 subject to the conditions of approval that were listed in the Staff Report. Commissioner Bandelow asked Staff if pole signs are permitted to be lighted internally where pole signs are permitted as a conditional use in some areas? Staff replied it depends on the zone of the properties where the pole signs are proposed. She stated they are permitted in a Commercial General (CG) zone. Internal illumination is not allowed in a Public Semi-Public Planning Commission Meeting - October 28, 2004 Page 1 of 13 19 " ...... , T zone but may be externally illuminated. Commissioner Bandelow also inquired what would be the maximum height for monument signs if they had come forward with a proposed monument sign instead of a pole sign? Staff responded it would be 6 feet. She further explained they are allowed a 32 sq. ft. sign area and the applicant will comply with that. TESTIMONY BY THE APPLICANT Walt Blombera. Suoerintendent. Woodburn School District. 2571 Heron Dr.. Woodburn. OR 97071 concurred with the Staff Report. He indicated they had many choices about sign age after they lost the primary signage that they had for the schools that notified parents and community about school events and about students who are achieving certain successes in school. Additionally, he thought communication is critical for the jOb that they do to make sure that parents and the community are informed. Most people thought they had an ideal location and when that was taken they had to look at alternatives. One being was to put the old sign back up because it played a critical role. Many folks saw that sign and were either reminded of important events or saw their child's name proudly put forth for all to see. Mr. Blomberg pointed out the signs were modeled after the signs at Heritage and Valor schools. He thought it is a good idea to have updated signs as it is a brand new parking lot and road and to have those newer signs there will enhance that property and the school setting. It was also noted by Mr. Blomberg that it does take some space and height to put messages in, which are typically put in English, Spanish and sometimes in Russian. He indicated the other school signs happened to get wrapped up in this whole package and stated he was surprised to find out they had to also include those. Commissioner Vancil commented he was told North Marion School has a monument height reader board and they have replaced the letters twice so far because vandals break the plexiglass and steal the letters. TESTIMONY BY PROPONENTS Teresa Halter Nork. 2635 Molalla Rd.. Woodburn. Or 97071 stated she grew up, lived and worked in the Woodburn community. Moreover, her children, parents and grandparents also live in Woodburn and she was basically speaking for community links and communication between all of the generations of her family as well as the general public. She liked the idea that the visibility was considered with all of the changes in the dynamics. Mrs. Halter further commented the sign displays student recognitions, academic awards, reminders to communities and parents for invitations that link the schools with the communities such as parent night, open house and back to school night. She indicated she wanted to reemphasize how accustomed they are to having that as a way to communicate and the sign should be replaced soon. TESTIMONY BY OPPONENTS None DISCUSSION Chairoerson Lima closed the public hearing and opened discussion among the Commissioners. Commissioner Bandelow commented she initially had some reservations about going from a monument sign to a pole sign. She stated she realized that she did not see any way a monument sign will be visible between the cars. She thought the information displayed on the sign is important enough that it does need to be seen by everybody. Commissioner Bandelow was in favor of the Variance for the two pole signs just because she could not see any other way that they could achieve what they need to achieve for this community without the Variance. Moreover, she would hate to see the school have to take the signs down at this point. Commissioner Knoles commented the only problem he had was with the pole sign height but having looked over the site he did not see any way you could have a pole sign of any lesser height and have it work in that area. Therefore, he favored the request. Planning Commission Meeting - October 28,2004 Page 2 of 13 20 .. '.... -W' Vice Chairoerson YounQ thought the presentation by Staff was very well done and Mr. Blomberg did a good job at explaining the role of the sign in the community. He closed by stating he would be in favor of the application. Commissioner Vancil and Commissioner Griaorieff also stated they supported the application. Chairperson Lima also indicated he had no problems with the application. Vice Chairperson YounQ made a motion to accept Design Review 04-17 and Variance 04-24 as presented and instructed Staff return with facts and findings at the next meeting. Commissioner Knoles seconded the motion. Motion carried unanimously. B. Deslan Review 04-06 and CU 04-03, reauest to establish an RV sales and service dealershlD and construct a 7.200 SQ. ft. sales and service bulldlna at 2450 Countrv Club Clu Brandon Johnson, aDDllcant. EXPARTE CONTACTS The Commissioners all indicated they were familiar with the site. Staff read the applicable ORS Statement and provided a presentation as reflected in the Staff Report. Staff recommended denial of the applicant's project as findings could not be made for support of the application due to it not being compatible with the surrounding uses as well as not meeting all of the Woodburn Development Standards nor the Variance considerations in the code as was discussed in detail in the Staff Report. Commissioner Vancil commented he was a little puzzled that an RV dealership did not seem like it particularly needed pedestrian access. He inquired whether the reason for recommending against the Variance was because of the general standards we have for sidewalks or was it someth ing specific to this type of business? Staff explained there are no existing sidewalks now and there was a concern about the increased traffic and the potential safety issues because RV types of vehicles would be test driven or brought to the site. Commissioner Vancil asked if there was any other potential access other than Country Club Ct.? Staff replied they do have an access on the South, however, it is a private access and it is something that different commercial uses are using but this applicant did not have the right to utilize that access. Chairperson Lima requested clarification regarding the applicant bringing forth different design reviews which could not be reviewed. Staff clarified the appliant came in and had a site plan at the facilities meeting where the building was located on the eastern side of the site and there were more issues with compatibility as well as fire issues with hydrant location. As a result of that meeting, the applicant went ahead and moved the building to the new location. Unfortunately, Staff did not have the amount of time needed to go ahead and review the plan to make sure all the items were shown on the plan met the code. She further stated she did talk with the applicant and asked them if they wanted to grant an extension of time to allow Staff to work with them. However, they were adamant about wanting to move forward and get to a public hearing. There are 120-days to process it and given Staff are on the time clock they had to come to this meeting and use the latest plan. Normally, plans are submitted up front so that Staff would have more time to work with the applicant in fine tuning them but that was not the case in this situation. Staff also commented the new plan had a lot of major issues that were not on the previous plan so they would have to move the location of the cul-de-sac and a number of items identified in the report. TESTIMONY BY THE APPLICANT Larry Reed. Director Plannina & Development. Arlev Co.. 871 Country Club Rd.. Euaene. OR 97401 Planning Commission Meeting - October 28.2004 Page 3 of 13 21 .. ..... Y' introduced a letter of introduction that was provided to him from Susan Arley, President of the Arley Co., as Attachment A. Mr. Reed indicated works for the Arley Co., who was the previous owner of the Fairway Inn Motel located on the subject site. The site was sold to Hong Kong Metro Realty and their subsidiary company, the Lex Corporation. He stated the sale was negotiated with the understanding that the Arley Co. Property Management Division would look after the property on the owner's behalf. During the course of monitoring the sale, he had discussions with the purchaser's design team and the City Planning Staff because they had an interest in making sure that the sale was proceeding. It did become evident that City Planning Staff was personally against having an RV dealer on the subject site and were very clear that Planning Staff wanted a more upscale high class use involving retail uses or corporate office development. Mr. Reed further stated it was difficult for him to believe that Planning Staff would take such a position and he assumed this personal decision to not allow this type of use must be based upon not having an understanding of the sites history and the difficulties in the market place of attracting retail or corporate office uses for the subject site. He made reference to a letter dated May 7,2004 addressed to Woodburn's Planning Director explaining the situation, which he attached as Exhibit B. Mr. Reed read into the record the following points covered in the letter: In 1999, he looked at the feasibility of renovating the existing motel to obtain a 10-year additional life of the structure. This analysis did not pencil because the structure was built on a concrete slab, was made out of older concrete block with a flat roof and it was simply to costly to renovate that type of motel to today's motel standards. In 2000, they looked at the feasibility of redeveloping the site as a retail development and there were two issues they could not resolve. The Woodburn Senior Estates Board of Directors indicated they would fight against any redevelopment that involved retail use because of the high traffic unless it was agreed that no access would be taken off of Country Club Rd. Mr. Reed also stated the existing secondary access through the Fairway Plaza Shopping Center serving the site was written in such a way to benefit only a motel use. The Arley Co. was unsuccessful in extending the lease for retail or other office uses and could not use it other than for a motel. They also later analyzed the feasibility of redeveloping the site as a new motel. The Arley Co. made contact with various motels and hotel developers and they indicated the site, although visible from 1-5, was not a good site because it was too far off of 1-5 and the highway. In addition, he reported they also looked at developing office space however, based upon talking with commercial real estate brokers in the area, it was determined that there was no demand for corporate office spaces in Woodburn at that location. He commented he was told that the applicant and his design team had been working with City Staff in making numerous revisions to their plans and he was also advised that the applicant had met with all the businesses South of the subject site. Additionally, Mr. Reed stated he spoke with a couple of consultants that have done work in the City of Woodburn to find out what they experienced. He reported Woodburn's Planning Staff judged his projects based upon their personal taste. City Staff used such words as; your project does not "wow me"; and don't bother to submit this because we are simply going to recommend denial. According to Mr. Reed, one of the consultants said he was told if he persisted City Staff would "stretch the code to the limit" creating what appeared to be noncompliance issues when a more reasonable interpretation or application of the code would allow the project to be in compliance. He stated one of those consultants referred him to his client who had a problem and that business owner commented City Staff would give them an answer causing them to redraw the plans. Once the business owner thought they complied with what was requested by Staff, they would reject the revised site plan. Additionally, in this particular case, Staff requested off-street improvements beyond what was reasonable for the scope of the project. This business in question got their land use attorney involved and prevailed but his final comment was they were fearful that a lot of businesses in Woodburn simply give up at the Staff level and never pursue their dream. Mr. Reed was not sure the situation he heard about were isolated perceptions or a general pattern. Mr. Reed pointed out the Planning Commission would need to make a judgement whether City Staff's recommendation for denial is a case of overzealous City Staff versus the competence of the project designer. Mr. Reed hoped the Planning Commission would permit the designers to address each code issue. Moreover, it was his judgement the proposed use was compatible or could be made compatible with the surrounding properties and uses. He made reference to the listing of permitted uses that are permitted outright under Woodburn's Development Code Section 2.106.01, subsection B, Special Trade Contractors. Mr. Reed also made reference to the United States Supreme Court Dolan case versus the City of Tigard. Mr. Reed maintained that Staff's Variance requirement violates Dolan and the United States Constitution. In addition, Mr. Reed pleaded with the Planning Commission to withdraw the street improvements as a condition of approval and he asked that they approve the new RV dealership conditional use permit. In closing, indicated the appropriate time for making Planning Commission Meeting - October 28,2004 Page 4 of 13 22 .. -. W' such planning approval conditions or seeing that they are met was during the site review and/or building code review and building permit process. Chairperson Lima referred to Mr. Reed's comments regarding Planning Staff being against RV sales and that they preferred more upscale business. He remarked he found Mr. Reed's comments to be ludicrous. Chairperson Lima further stated it was not a matter of Staff recommending in favor or against because there have been many times the Commission have gone against Staff's recommendations. Moreover, he thought that the applicant should have to comply with all applicable standards. Chairperson Lima also requested clarification regarding Mr. Reed's comment about trees being a public asset and should not be removed. Larry Reed indicated he believed the conditions of construction and standards need to be complied with and also believed that compatibility issue is one of a judgement call. He stated that trees along a street, especially mature trees, he personally viewed as a public asset that enhances the roadway and the value of the adjoining property by providing shade to the adjoining properties. Chairperson Lima remarked Mr. Blomberg, Woodburn School District Superintendent, would attest to how many mature trees were removed on the expansion of Boones Ferry Rd. Chairperson Lima agreed that trees are a public asset however, there are times that removal of vegetation needs to occur in lieu of development. Larry Reed understood Chairperson Lima's comments but felt that was a judgement call he thought should be made as part of a larger public process and not as a condition of approval. TESTIMONY BY PROPONENTS GiI Geihs. Commercial Real Estate Broker. Norris & Stevens Real Estate. 621 SW Morrision St.. Suite 800. Portland. OR 97205 reported he has been involved with the property since 1999 when he first sold it to the Arley Co. for redevelopment and have tried ever since to find a redevelopment client for that parcel of land. Some of the suggestions in terms of use the City had were another new motel, an office project or some sort of retail space. The property was presented in 1999 to over 50 motel developers and/or owners of motels and he was flatly told that was not a motel site and would probably never be. Moreover, it was presented to retail developers and they were not convinced with the site either. Additionally, Senior Estates informed them they were against any sort of development that had high traffic retail uses. It was presented to office developers for a corporate headquarters or renting it out 1,000-3,000 sq. ft. at a time. Mr. Geihs pointed out that the property owners fronting Country Club and the East side of the property were notified by letter along with telephone calls and meetings did not express any opposition to the project and indicated they were very much in favor of the project. He also commented he was informed by the City of Woodburn Public Works Department that the Oregon Department of Transportation have slated to propose Evergreen to connect to Country Club Ct. perhaps in 2008 subject to funding and planning. In closing, Mr. Geihs thought this to be a very good use compared to some of the outright uses that are allowed on that site. He asked the Commission to consider granting a Conditional Use and make it subject to working out the details of the design and location of the property. Commissioner Bandelow asked Mr. Geihs what year was it he was pitching this property to motel owners? GiI Geihs replied they represented the motel owner back in 1999 and starting in late 1998 and 1999 they were marketing the property. They wanted to sell it as an existing motel and it was just almost impossible because it was underdeveloped. Commissioner Bandelow pointed out Mr. Geihs was probably unsuccessful marketing the property because it was at a time prior to the monstrous success of the Outlet Mall. Additionally, she said the current owners did purchase the property for development and not for motel use and therefore, knew what they were buying at the time. Gil Geihs responded affirmatively. Additionally, part of that desire was because of the success of the outlet stores. Planning Commission Meeting - October 28,2004 Page 5 of 13 23 .. ...." 'W' Commissioner GriQorieff questioned whether Mr. Geihs tried to market the property again in the last 1-2 years? GiI Geihs reported in the beginning of 2004, they were contacted by the Arley Co. to enlist help to market the property and it was then they found Johnson RV Sales & Service to look at the property. Commissioner GriQorieff asked whether it was to be developed as another motel? GiI Geihs responded No because the motel developers indicated it was not a motel site. However, that did not mean that perhaps some day in the future it could be. Mr. Geihs further clarified in about February or March of this year, they started working with Johnson RV Sales & Service on this project. He also stated it was just this summer the buildings were razed. Larry Reed interjected they were pitching it prior to the Arley Co. buying it. The Arley Co. have their own marketing and sales division. The property was marketed between 1999 up until they bought it in February 2004 and was marketed with incentives, Le., they would demolish the current hotel, but the answer was it just is not a site for a new motel. Larry Reed felt they thought they could be successful, otherwise they would not have spent thousands of dollars making brochures, pamphlets and contacting moteVhotel owners. Chase Brand. Norris & Stevens Real Estate. 621 SW Morrision St.. Suite 800. Portland. OR 97205 said they marketed very broadly with one of the largest commercial property management and brokerage companies in Oregon once they took over marketing of the property. Brandon Johnson came along about March 2004 and made an offer. Mr. Brand reported Mr. Johnson has been the only offer they have had on the property. Brandon Johnson. Johnson RV Sales. 3905 SE 82nd Ave.. Portland. OR explained he made the offer on the property in February 2004 and was approved by the sellers contingent upon the approval of the Conditional Use application. They have been working with the City of Woodburn Planning Department to develop a plan that meets the City's criteria and the sellers have given them many extensions. Mr. Johnson further stated they have made four or five revisions to their plan in an effort to meet the requirements of the Planning Staff. He described Johnson RV Sales as a small family-owned business which has been in Portland for the past 5 years. They sell RV's, mainly new motor homes, trade-ins, travel trailers, truck campers and fifth-wheels. In addition, they also provide service for their customers and pride themselves on quality products as well as deliver good customer service. Mr. Johnson indicated their goal as a company is to continue to be in business for many years. He believed his company would be a great asset to Woodburn for many reasons. It was Mr. Johnson's opinion that it would be an attractive property and would greatly improve the previous look of the property. He felt the building they finally came up with is gorgeous and the neighboring residents would benefit from a reduction in noise from 1-5. He also reported there are currently a few squatters on the property and development would resolve that problem. Landscaping has been proposed to go completely around the site which was not in the original site. He remarked they will not have pedestrian traffic because people do not walk in to buy an RV, generally speaking and it would be very unlikely that it would be used as a sidewalk by people with his business as a destination. Commissioner Vancil commented he relied on Staff to enforce the ordinance and by the time it came before the Commission a lot of the details are worked. However, the specifics regarding the landscaping that he read in the report had to do with having some raised display out next to the freeway but not having landscaping. He asked Mr. Johnson whether he was indicating that issue had been already resolved? Brandon Johnson replied affirmatively. He explained they have been working on revisions on the project since February 2004. Mr. Johnson said Staff has expressed to him several times that an RV dealership would probably not be a good use for that property because of the visual clutter. However, Staff did mention they would allow him to make and remove any other sticking points through the process. He remarked he signed a 120-day extension giving Staff extra time and he requested that they try to make the October meeting. Mr. Planning Commission Meeting - October 28, 2004 Page 6 of 13 24 ~ "F"" r Johnson said he was contacted by Staff before the notices were mailed out and told that they could go ahead and make that meeting. He did not receive a call from Staff to ask for an extension until after everybody had been noticed about a week ago. Staff interjected the Staff Report was available 7 days prior to the meeting as is required by Statute. He explained the notice is mailed out 20 days prior to the hearing, which would have been just a few days after the most recent plan on September 21st was submitted. He stated the issue was after the revised plans were submitted and because of the- 120-day rule, they were forced to follow a certain schedule in order to complete the City's review including potential appeals within 120-day period. Therefore, if the applicant chooses to make modifications after their application is deemed complete, obviously because Staff would have a very small window in order to meet all of the regulatory requirements, which in this case were very significant, it requires additional time to review. It was Staff's understanding that the applicant refused to grant any further extension. Brandon Johnson thought they had extended 120-days. Staff clarified the 120-day extension allows the applicant to provide these revised plans. She further explained after they looked at those plans they noticed there were a lot of items that did not meet the code. She then called the applicant again and requested another 120-day extension to allow Staff more time to pin down all of the requirements. However, the applicant stated they did not want to grant an extension and wanted to go forward to this meeting. Staff also indicated normally this is a situation which they do not like to be in however, in this case Staff had no choice. Staff's job is to work with the applicant and the public to try and get the project in as good of shape as it can. Brandon Johnson commented it was after several revisions that an extension was requested and the sellers thought that at some stage they needed to get some sort of an idea on the conditional use portion of the application and how the Planning Commission felt about having an RV dealership on that site. Commissioner Griaorieff remarked it sounded like a misunderstanding to her because the applicant assumed he got another 120-day extension. Staff interjected the applicant granted a 30-day extension. Commissioner Griaorieff further remarked Staff could have worked with the applicant had he accepted the extension and the plan could have been presented a lot more complete. Brandon Johnson agreed with Commissioner Grigorieff. He pointed out they worked with the Planning Department for quite a long time on the project. He further indicated a lot of the items in the report he was reading for the first time. Therefore, he could not have been able to resolve the issues having not ever been told about it. A lot of the issues contained in the Staff Report had nothing to do with the last revision and there were deficiencies on his part that he was not advised of. Chairoerson Lima indicated it appeared very clear to him that there was confusion on the applicanfs part that prevented the application from not being reviewed tonight. However, just because there are certain things that are allowed outright in certain areas did not necessarily mean that those will be approved. Additionally, he stated any type of business may deter squatters on the property and it did not necessarily have to be an RV sales business. Matthew Newman. LDC Desian Grouo. 20085 NW Tanasbourne Dr.. Hillsboro. OR 971 represented Mr. Johnson. He indicated based on the Staff Report, they had revised their plan and understood that Staff did not have time to review the plan and would like to continue the hearing to the next meeting to allow Staff and the Planning Commission time to review the plan. Chairoerson Lima asked Staff if that was possible? Planning Commission Meeting - October 28, 2004 Page 7 of 13 25 .. "Ir" 'Y' Staff responded that would not be possible under the current time line of 120-day rule. Matthew Newman interjected they would also waive the 120-days. Staff stated there would be sufficient time if the Planning Commission chose to continue the hearing and if the applicant waived the 120-day rule. Matthew Newman reiterated the applicant requested a continuance. Chairoerson Lima felt uncomfortable with people submitting information just as the meeting is starting which did not allow the Commission the opportunity to review it in advance. He also made it very clear that the Commission would review what was currently before them and any other revisions would not be part of what the Commission would be deciding tonight. Matthew Newman apologized and explained that is why the applicant requested a continuance. Commissioner Vancil moved to grant the extension. Commissioner Knoles seconded the motion. Staff clarified he would completely concur that the applicant be provided with whatever time they need to try to bring the project into compliance with the development standards if it were just a design review. However, the application also included a conditional use. The first question on the application would be whether the Commission believed this use was appropriate on this site? If not, then the Commission would deny the conditional use and what the applicant did as far as the design review would not matter. If it was possible that the use could be appropriate on the subject site and if all the possible negative impacts could be mitigated, then, if that was the case, the applicant could potentially come back and mitigate those impacts. Commissioner Bandelow commented she would prefer to deny the current motion, complete the hearing and at least vote on the conditional use. She stated it seemed that we could save the applicant a lot of time and money in revisions if the Commission were to deny the conditional use. Commissioner Bandelow further remarked we need to know whether or not the Commission is even considering this as a conditional use. If they are not, the applicant has the right to know that before he goes further and spends more time and money. Staff explained if the Commission were to look favorably upon the use and location, they could continue the hearing, assuming the applicant granted the extension and have them return with the design review and then the conditional use would have been addressed already. Commissioner Vancil withdrew his motion and Commissioner Knoles withdrew his second. Commissioner Knoles clarified the Commission could only hear what was submitted tonight and any new items could not be submitted to the Commission whatsoever because they could not rule on them at all. Matthew Newman inquired whether that applied to the letter that had already been presented to the Commission? Chairoerson Lima expressed his displeasure with items being presented to the Commission after the hearing has started. Although he was aware the applicant was trying to provide information regarding their application, the Commission still had to review it. He felt it was unprofessional to present information after the meeting has started. Chairperson Lima indicated he was unfamiliar with the letter Mr. Newman was referring to and he could not act on such a letter at this time. Matthew Newman apologized for the documents that were submitted to the Commission tonight. He further stated they have revised the plans and were prepared to submit them to Staff tomorrow for Staff's review for the continued hearing. Mr. Newman referred to the design review and explained the change that occurred Planning Commission Meeting - October 28,2004 Page 8 of 13 26 .. 'IF" y' by moving the building affected the site plan significantly and some of the design features (sidewalk, landscaping. parking) got shifted. In reference to the conditional use, he indicated it is the applicant's intention to comply with all the criteria. Mr. Newman addressed issues regarding the lighting plan, hours of operation, air quality, traffic report, aesthetics and landscaping. He clarified Mr. Johnson intends to be open for business from 9 am to 7 pm, not 9 pm as the Staff Report states. In addition, Mr. Newman took issue with the statement about visual clutter and commented he thought that was a matter of opinion that he did not share. In closing. Mr. Newman said he believed it is a suitable location for the use. A sidewalk is proposed by the applicant along the cul-de-sac frontage and has been redesigned to comply with what Staff requested. A sidewalk is proposed to go all the way around with a planter strip with street trees. However. it would require removal of four of the large trees and extending the sidewalk beyond that would result in removal of more trees. He asked the Commission to grant approval for the conditional use. grant a continuance so that they could come back with the revised design which shows they comply with every criteria listed in the Staff Report. Commissioner Griaorieff inquired whether only RV's will be towed down the street and what would be the largest RV to be towed? Brandon Johnson replied only RV's will be towed down the street and that the largest RV made was about 40 ft. Mr. Johnson explained a test drive is a condition of the sale and there is usually one test drive per sale with no in between test drives. Test drives would be done out on the freeway and not through residential areas. Commissioner Knoles questioned how will the pickup mounted type campers be delivered? Brandon Johnson responded pickup campers are delivered one at a time on a pickup truck. He further explained every other retail use would have to get their merchandise with a semi-truck, which would not be the case in his establishment. Commissioner Bandelow asked if he also does RV repairs in addition to RV washing? Brandon Johnson clarified the washing bay area is a designated area to maintain their own vehicles for sale so that they look good. Additionally, he explained they do not solicit outside repair and do not do any automotive repair because they are not certified nor the facility large enough to provide those services. Mr. Johnson reported the warranty work would go to the corresponding brand dealership, Le., Ford or Chevrolet. Appliance or steering wheel issues would be serviced by him but these would not involve the use of air tools. He mentioned he has retained a landscape architect who will prepare a full landscape and irrigation plan which they will resubmit assuming the hearing is continued. Mr. Johnson further clarified the point to the continuance is so that the Planning Commission has a final design to look at and to consider as he believed the conditional use criteria has been satisfied. Larry Reed explained the applicant would like some indication spelled out by the Planning Director as to whether the conditional use permit would be approved and that they are willing to continue the design review and grant whatever time is needed. In addition, that they would like withdrawal of the condition of the street improvements under the Dolan. Moreover, the applicant would be willing to sign an irrevocable remonstrance not to protest against a future street improvement when it goes through the proper public hearing. Wes Bauah. 2125 Country Club Ct.. Woodburn. OR 97071 stated his home is the third house from the subject site and was in favor of Mr. Johnson's proposal. Moreover, he mentioned there are four houses on Country Club Ct. and they like everything except the sidewalk issue. He requested if there is some way to not put a sidewalk in front of their homes as there is a sidewalk on the South side. Additionally, the compatibility is appropriate as there is a five acre site already there with a whole bunch of RV's on it. Mr. Baugh commented unless there is a hospital there with a cardiac unit, he thought an RV lot would be great for them. AI Fidler. 2239 Country Club Terrace. Woodburn. OR 97071 commented the existing arborvitae needed to be eliminated. He indicated it was hard for him to believe that Mr. Johnson would not be doing repair work and would not use air tools. Planning Commission Meeting - October 28, 2004 Page 9 of 13 27 . -, .. Cecil (inaudible). 2251 Country Club Terrace. Woodburn. OR 97071 said his property also borders the subject site. He reminded everyone that there are worst things that can go there than an RV sales and motels are not always a good thing. William (inaudible), 2245 Country Club Terrace. Woodburn. OR 97071 stated he favored Mr. Johnson putting in an RV park because he was sick and tired of picking up beer bottles and used needles as well as dealing with transients. Dan Richev. 2200 Country Club Terrace. Woodburn. OR 97071 remarked he would like to see the RV lot go in. Additionally, he reported the lot needs to be cleaned up as there are transients and rats on the property. TESTIMONY BY OPPONENT None DISCUSSION ChairDerson Lima closed the public hearing and opened for discussion. Commissioner Knoles commented he thought it would be very difficult to use the property for either retail or hoteVmotel because access to it is very difficult. He had no problem with this type of use in this lot although he was not comfortable with the' design review and variance because he did not feel the information in the report was adequate or up-to-date. Commissioner Knoles was in favor of the conditional use but would not be willing to act on the other two items tonight. Commissioner Bandelow indicated although she had a lot of reservations about the conditional use, she agreed with Commission Knoles that this is a difficult property. Nonetheless, the owners were aware of that when they bought the property. Senior Estates is not the average residential development as it is one of the most successful senior developments in the United States. The development has been special to Woodburn which made the community feel kind of protective of it and what happens to it is very important. Commissioner Bandelow expressed concems with the idea of RV's using Country Club Lane continuously because it is a narrow street with a 90 degree turn to go down to the cul-de-sac. However, she said Mr. Johnson should never feel that we do not want his business in Woodburn and thought the entire Commission would welcome his business. Commissioner Bandelow did not see the point of the sidewalk variance because Senior Estates does not have sidewalks and the lots do not have front yards. Senior Estaters are adamantly opposed about having any sidewalks and she felt it does not need to be forced upon them. Safety is not an issue on Country Club or Country Club Ct. because there are sidewalks on the other side of the street. She sympathized with Mr. Johnson because there are so many pieces to the puzzle which makes it difficult to get them in and have a complete application. Commissioner Bandelow said she would be in favor of granting the conditional use but did not think the sidewalks should be put in. Commissioner Vancil concurred with Commissioner Bandelow in that this is a good conditional use for the property as it is probably the least offensive commercial use and he would support that. Additionally, the stones that were directed at planning staff and process tonight did not sway him a bit because the reality is that the planning staff and the Planning Commission worked very hard to try and make Woodburn liveable. Commissioner Vancil apologized if Woodburn has a difficult planning process but the reality is that the way to keep this community liveable is to make sure we have standards and that they make sure that people follow those standards. He indicated he supported the conditional use and opposed the need for sidewalks when that issue comes up and would like to see that put off until a later date. Vice Chairoerson Youna pointed out a standard amount of material is reviewed at each one of the Planning Commission public hearings. He stated he found what he perceived to be fiction contained in some of the reports provided by the applicant such as the 428 daily trips from the previous use on the motel. Vice Chairperson Young pointed out the motel was closed in 1999 and he did not think they had that kind of traffic even 5 years before that and therefore, refuted those numbers as far as traffic. Reference was made Planning Commission Meeting - October 28, 2004 Page 10 of 13 28 .. .... Y' regarding the sidewalk issue and he commented the Woodburn Ordinance applies to all applicants and whether a variance is granted or not, it is still part of the Woodburn Ordinance. He thought a sidewalk is a good safe place to jump out of the way if you need to dodge traffic particularly in looking at a residential area where historically a lot of people walk and there is a lot of traffic. Vice Chairperson Young referred to pag~ 13 of the Staff Report and commented the Country Club Ct. right-of-way site plan should be a little bit closer than 160 ft. Additionally, all applicable criteria under outright permitted use under 2.1 06 Commercial General zoning must still be complied with and go through the same process. Commissioner Griaorieff agreed it probably is a good site for that type of use. She held off on her judgement regarding the design review and the variance until the next meeting which she thought was best for everyone. She did not want to make a decision right now because she had not heard everything and a lot of unexpected issues had surfaced. Chairoerson Lima indicated he had a lot of concerns regarding the application. Firstly, he perceived part of the applicant's team was pushing for something that was not in the application prior to coming before the Commission. Then in the eleventh hour, part of the applicant's team decide they have some revisions and would agree with everything Staff recommended. Secondly, he was concerned about the traffic because 45 RV's per month will generate a lot of traffic in the area. He stated there is currently a similar situation with traffic taking place with a business near the freeway and they met all of the criteria in the immediate surrounding area but ultimately have created a lot of problems by the highway. Vice Chairoerson Youna remarked although he is not an attorney, he has some familiarity with the Dolan case and he did not believe this situation is that close to the Dolan case. Commissioner Bandelow commented it behooves all applicants to be aware that it does no good to come in and try to trash the planning staff that the Commission sees work very hard. Moreover, to refer to them as incompetent does not help any applicants case. Nevertheless, she believed Mr. Johnson would probably be a very good addition to the City of Woodburn. In addition, the Commission has to go by the criteria and she felt while this might not be the best use, she was unsure what would be a good one. Commissioner Vancil made a motion to approve Conditional Use 04-03 and grant a continuance for Design Review 04-06 and Variance 04-23. Commissioner Knoles seconded the motion. Deniece Won recommended that the Commission not divide the items up in terms of approval because part of the information and the conclusions for the criteria for the conditional use permit are dependant upon satisfying criteria that are in the design review plan. Staff recommended that the Commission achieve a consensus on the conditional use as far as whether they believed the use was appropriate. If a consensus was achieved, it could be continued and at least direction provide to Staff that the conditional use is appropriate for that site. However, Staff would still have to review whatever plan the applicant wants to go with at this point and determine whether there are potential negative impacts or whether Staff would recommend conditions that relate to the conditional use and not just to the design review. Commissioner Vancil withdrew his motion and Commissioner Knoles withdrew his second. Deniece Won stated she was uncomfortable with the Commission making a firm commitment on the conditional use permit. Staff clarified it was not a commitment. He explained it provides Staff with some guidance in working with the applicant in trying to hone the project to meet all of the development standards and that the conditional use criteria can be met to a level that the Commission will find acceptable in order to approve it. Staff further explained a waiver is required from the applicant before there can be a continuance because there is currently no time to continue review without the waiver. Planning Commission Meeting - October 28,2004 Page 11 of 13 29 . T' , The majority of the members of the Commission, with Commissioners Lima and Young dissenting, thought it was an appropriate use and that the item should be continued. . Staff requested the applicant provide a written waiver of 120-day rule. Deniece Won believed the applicant could waive the 120-day rule but it needed to be for a particular time period. Staff suggested at least a aO-day extension because Staff has to review it and complete a new report. Deniece Won clarified renoticing is not a factor with respect to the 120-day rule. Staff commented he would prefer continuance to the January 13, 2005 meeting. 9:44 PM - STAFF REQUESTED A 5-MINUTE RECESS TO CHECK CONTINUANCE DATE Commissioner Vancil moved to continue Conditional Use 04-03, Design Review 04-06 and Variance 04-23 to the January 13, 2005 Planning Commission meeting. Commissioner Knoles seconded the motion, which carried. Chairoerson Lima and Vice Chairoerson Youno voted No. C. Conditional Use 04-07. Deslan Review 04-13, Variance 04-19 and Variance 04-20, reauest to construct a 400 sa. ft. well house at 3099 N, Pacific Hwv.. City of Woodburn. aDDllcant. (Staff requested a continuance ofthls Item from the October 28. 2004 Plannlna Commission Meetlna to the November 18. 2004 Plannlna Commission Meetlna\. Commissioner Vancil moved to continue the hearing. Commissioner Knoles seconded the motion. Motion unanimously carried. ITEMS FOR ACTION A. Final Order for Planned Unit DeveloDment 04-04. request to modify Miller Farm Planned Unit DeveloDment to consolidate 4 lots Into 3 lots. Nancv Platkoff. aDDllcant. Commissioner Knoles excused himself from voting on this item since he excused himself from the hearing. Commissioner Vancil stated he would not vote on this item because he was not present for the discussions. Vice ChairDerson Youno made a motion to accept the Final Order as presented by Staff. Motion was seconded by Commissioner Grioorieff, which carried. B. Final Order for Conditional Use 04-09, establish a Pay Dav loan business at 1655 Mt. Hood Ave.. Mid-Valley Plaza, LLC. aDDllcant. Commissioner Bandelow moved to approve the Final Order as presented by Staff. Commissioner Knoles seconded the motion. Motion carried unanimously. C. Cancel Plannlna Commission meetlnas of November 11 and 25. 2004 and schedule sDeclal meetlnas on November 4 and 18, 2004. Commissioner Bandelow announced she will not be able to attend the meeting of November 18. Staff reported in addition to the November 4th Periodic Review Tasks work session, he also proposes additional work sessions for November 101h and 1"fh. Commissioner Vancil questioned why so many work sessions in one month? Staff explained the goal has been to try and get a public hearing on Periodic Review items before the Planning Commission in January but if that was not possible, it would obviously get pushed off. Additionally, he stated it is better to do the sessions together because there is a lot of material and it is not something that you want to spread out over a longer period of time. However, it is the Commission's prerogative if they preferred to spread the sessions out more. Staff stated he would bring an item before the Commission next week to schedule the work sessions. Planning Commission Meeting - October 28, 2004 Page 12 of 13 30 , .. "W"', ... 8E WOODBURN PUBLIC LIBRARY MONTHLY REPORT FOR OCTOBER 2004 I. CIRCULATION 12,154 Current: Previous: 2,003 12,563 2,002 10,896 2,001 11,832 Adult: 8,636 Children: 3,518 In-House Use: 2,313 II. INTERLIBRARY LOAN Books Loaned: 1,150 CCRLS: 1,149 In-state special: 0 All other in-state: 1 Out-of-state: 0 Books Borrowed: 1,290 CCRLS: 1,277 In-state special: 0 All other in-state: 8 Out-at-state: 5 III. REFERENCE 2004 2003 2002 Woodburn 978 803 745 Reterrals 9 15 31 Other 1,308 1,474 1,042 Total 2,295 2,292 1,818 Database Usage: 537 (Not all databases included) IV. COMPUTER USAGE ADULTS Children: 2004 2,836 1,146 2003 2,897 1,055 2002 2,155 699 Avg/open hrs Avgl open hrs 2004 11.34 4.22 2003 11.92 4.73 2002 8.23 3.48 V. LIBRARY SPONSORED PROGRAMS Adults: 2 No. Attending: 70 Children: 33 No. Attending: 835 VI. VOLUNTEER HOURS WORKED: 134 VII. FINANCE NEW ADDS: 654 13,965.90 VIII. HOLDINGS 79,461 IX. PATRON LOAN TYPES: 18,488 Monthly Statistics Template 32 .. ...' y' Z << ~ o:l << 0 ~ E-< 0 00 H 0 '-' ~ 3: << ~ r>. U ~ 0 :I: U >< E-< U ~"'<Xl ;>Olfl H........... ...:llfllfl .-<0 Z'u f3~'" o:l Q~~ OE-<::;: O<(H 3:QE-< SF o 'DE-< ~.,.O '-'O~ <("'~ "'<(;> Ol U G1 << Ol r>. r>. H o 0000000000000000000000000000000000000000000000000000 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ E-< ~, " o " Ol " ...:l " U :: Z " o " U " "'. <<" II II II " E-< " ~ :: o " ~ :: " ~ " U " '" " :I: " U " II II 011 ~ " E-< " ..: " o " '" " ~ " " " " " " " " " " " Ul " ~ " E-<II ..: " E-<II UlII II II 11 ZZ ~.t-l HH Hen. () r:LIOO M H II HH ~Z 0 Z~ ~~ ~U ~ ~H >~H l: ~~ ~~~ g~ 8~~ ~~ u ~~ ~ ~~ t-l~H "UU":H H U E-<"'''' OH '-' Ul UZ E-< '" 'Z 3:Z wUla~B : ~~ iUl~ ~~~ g ~~Ul =~ ~ ~ ~H ~~! 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November 16, 2004 TO: Mayor and City Council through City Administrator FROM: Scott Russell, Chief of Pollee # SUBJECT: Police Department Statistics - October 2004 ~: Receive the Report BACKGROU~: The attached report lists year to date reported offenses and arrests displayed by month. DISCUSSION: The statistics have been gathered from the Pollee Departments Records Management System. The Previous year's statistics are also displayed for comparison purposes. FINANCIAL IMPACT: None Agenda Item Review: City Administrat City Attorney Finane 38 'Y' T' nUVUUl"Al II ru 1 I L.t:: Ut::~\,... 11-\0[. DATE: 11/16/2004 PL6860 TIME: 14: 29 : 09 MONTHLY CRIMINAL OFFENSES FOR JANUARY THRU OCTOBER 2004 LINDAEU ORI#: OR0240500 WPD RESULTS FOR ALL OFFENSES CHARGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT TOTAL ------------ -- - -- - ----- --- -- -- --- --- - -- - - -- -- - --- --- ------- -- -- --- - - - --- -------- - - -- -- -- --- - --- - -- - - - - ------- --- - - - - - - -- - - - -- -- - - - -- AGGRAVATED ASSAULT 0 3 0 5 5 2 6 3 0 2 26 AGGRAVATED MURDER 0 0 0 0 0 0 0 0 0 0 0 ANIMAL ORDINANCES 46 48 50 26 28 19 21 2 5 3 24B ARSON 1 0 0 0 3 1 0 0 0 0 5 ASSAULT SIMPLE 10 6 17 15 12 17 11 17 18 22 145 ATTEMPTED MURDER 0 0 0 0 0 0 1 0 0 0 1 BOMB THREAT 0 0 0 0 0 0 0 0 0 0 0 BRIBERY 0 0 0 0 0 0 0 0 0 0 0 BURGLARY - BUSINESS 3 12 5 2 4 3 2 2 9 0 42 BURGLARY - OTHER STRUCTURE 3 2 6 3 2 2 1 3 1 1 24 BURGLARY - RESIDENCE 3 10 14 12 15 10 16 18 6 8 112 CHILD ADBANDOMENT 1 0 0 1 0 0 0 0 0 0 2 CHILD NEGLECT 0 0 0 0 1 1 1 0 2 0 5 CITY ORDINANCE 14 8 8 13 8 5 4 3 3 3 69 CRIME DAMAGE-NO VANDALISM OR ARSON 20 24 31 22 27 15 15 18 23 10 205 CURFEW 3 2 0 0 2 6 0 0 2 1 16 CUSTODIAL INTERFERENCE 0 0 0 0 0 0 0 0 0 0 0 CUSTODY - DETOX 2 1 4 3 3 5 6 1 2 1 28 CUSTODY - MATERIAL WITNESS 0 0 0 0 0 0 0 0 0 0 0 CUSTODY - MENTAL 0 1 0 1 1 2 0 1 0 1 7 CUSTODY - PROTECITVE 1 0 0 0 0 0 0 0 0 0 1 DISORDERLY CONDUCT 3 4 2 2 5 5 3 1 3 4 32 DOCUMENTATION 0 1 0 0 0 0 0 0 0 0 1 DRINKING IN PUBLIC 0 0 0 0 1 1 1 1 0 0 4 DRIVING UNDER INFLUENCE 8 12 8 9 5 11 4 16 17 10 100 DRUG LAW VIOLATIONS 23 4 9 19 19 11 11 13 10 8 127 DRUG PARAPHERNALIA 0 0 0 0 0 0 0 0 0 0 0 DWS/REVOKED - FELONY 0 0 0 0 0 0 0 0 0 0 0 DWS/REVOKED-MISDEMEANOR 7 9 3 0 3 2 1 7 2 6 40 ELUDE 2 0 2 1 3 2 2 1 1 0 14 EMBEZZLEMENT 0 0 0 0 0 0 0 0 1 0 1 ESCAPE FROM YOUR CUSTODY 0 0 0 0 0 0 0 0 1 0 1 EXTORTION/BLACKMAIL 0 0 0 0 0 0 0 0 0 0 0 FAIL TO DISPLAY OPERATORS LICENSE 6 5 5 1 1 2 3 1 1 2 27 FAMILY-OTHER 0 0 0 0 0 0 0 0 0 0 0 FORCIBLE RAPE 0 0 0 0 1 1 1 1 3 0 7 FORGERY/COUNTERFEITING 10 8 10 4 6 5 3 8 5 3 62 FRAUD - ACCOUNT CLOSED CHECK 1 2 2 0 0 0 0 0 0 0 5 FRAUD - BY DECEPTION/FALSE PRETENSES 1 1 3 1 0 1 1 0 1 0 9 FRAUD - CREDIT CARD/AUTOMATIC TELLER MACHINE 2 1 1 0 1 0 1 2 1 0 9 FRAUD - IMPERSONATION 3 6 3 1 2 2 1 2 3 0 23 FRAUD - NO ACCOUNT - CHECK 0 0 0 0 0 0 0 0 0 0 0 FRAUD - NOT SUFFICIENT FUNDS CHECK 1 0 0 0 0 0 0 0 0 0 1 FRAUD - OF SERVICES/FALSE PRETENSES 1 2 0 2 1 0 1 0 1 0 8 FRAUD - WELFARE 0 0 0 0 0 0 0 0 0 0 0 FRAUD - WIRE 0 0 0 0 0 0 0 0 0 0 0 FRAUD-OTHER 0 0 0 0 0 0 0 0 0 0 0 FUGITIVE ARREST FOR ANOTHER AGENCY 31 34 34 29 34 43 28 37 30 20 320 FURNISHING 1 0 0 0 0 1 0 4 0 0 6 GAMBLING - BOOKMAKING 0 0 0 0 0 0 0 0 0 0 0 GAMBLING - GAMES 0 0 0 0 0 0 0 0 0 0 0 GAMBLING - ILLEGAL DEVISES/MACHINES 0 0 0 0 0 0 0 0 0 0 0 39 "'" .......... WOOODurn ~OllCe Uept. I nuL.. <- DATE: 11/16/2004 PL6860 TIME: 14:29:09 MONTHLY CRIMINAL OFFENSES FOR JANUARY THRU OCTOBER 2004 LINDAEU ORI#: OR0240500 WPD RESULTS FOR ALL OFFENSES CHARGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT TOTAL --- - --------- -- --~ ----- - -- - ---- --- -- - -- - ----- - - - - - -- --------- -- - - - ---- -- - ---- - -- -- ---- -- - --- - ----- --- - - - - -- --- - - - -------- - -- - - - -- --- GAMBLING - ILLEGAL PAY OFF 0 0 0 0 0 0 0 0 0 0 0 GAMBLING - NUMBERS AND LOTTERY 0 0 0 0 0 0 0 0 0 0 0 GAMBLING - OTHER 0 0 0 0 0 0 0 0 0 0 0 GARBAGE LITTERING 0 0 0 1 0 0 0 0 0 0 1 HIT AND RUN FELONY 0 2 2 0 3 0 0 1 1 1 10 HIT AND RUN-MISDEMEANOR 12 13 21 7 7 13 10 23 14 16 136 ILLEGAL ALIEN - INS HOLD 0 0 0 1 2 0 0 0 0 1 4 ILLEGAL ESTABLISHMENT 0 0 0 0 0 0 0 0 0 0 0 ILLEGAL LIQUOR-MAKE.SELL,POSSESS 0 0 0 0 0 0 0 0 0 0 0 IMPORTING LIQUOR 0 0 0 0 0 0 0 0 0 0 0 INTIMIDATION /OTHER CRIMINAL THREAT 0 0 2 2 4 3 5 5 7 3 31 JUSTIFIABLE HOMICIDE 0 0 0 0 0 0 0 0 0 0 0 KIDNAP - FOR ADDITIONAL CRIMINAL PURPOSE 1 0 0 0 0 0 2 0 0 0 3 KIDNAP - FOR RANSOM 0 0 0 0 0 1 0 0 0 0 1 KIDNAP - HI-JACK. TERRORIST 0 0 0 0 0 0 0 1 0 0 1 KIDNAP - HOSTAGE/SHIELD OR REMOVAL/DELAY WITNESS 0 0 0 0 0 0 0 0 0 0 0 LICENSING ORDINANCES 0 1 0 0 0 1 0 0 0 1 3 LIQUOR LAW-OTHER 0 0 0 0 0 0 0 0 0 0 0 LIQUOR LICENSE VIOLATIONS 0 0 0 0 0 0 0 0 0 0 0 MINOR IN POSSESSION 4 5 4 3 4 5 2 3 1 4 35 MINOR ON PREMISES 0 0 0 0 0 0 0 0 0 0 0 MISCELLANEOUS 4 8 4 5 9 6 8 5 9 10 68 MOTOR VEHICLE THEFT 16 12 12 19 18 10 12 16 15 15 145 NEGLIGENT HOMICIDE - TRAFFIC 0 0 0 0 0 0 0 0 0 0 0 NEGLIGENT MANSLAUGHTER 0 0 0 0 0 0 0 0 0 0 0 NON CRIMINAL DOMESTIC DISTURBANCE 0 0 0 0 0 0 0 0 0 0 0 NON SUPPORT 0 0 0 0 '0 0 0 0 0 1 1 OTHER 9 11 7 7 7 5 4 6 9 3 68 PARENTAL RESPONCIBILITY ORDINANCES (SVP) 0 0 0 0 0 0 0 0 0 0 0 PROPERTY - FOUND LOST MISLAID 16 18 28 21 2"6 28 25 26 22 15 225 PROPERTY RECOVER FOR OTHER AGENCY 3 2 1 1 0 1 0 0 0 0 8 PROSTITUTION - COMPEL 0 0 0 0 0 0 0 0 0 0 0 PROSTITUTION - ENGAGE IN 1 0 0 1 0 0 0 0 0 0 2 PROSTITUTION - OTHER 0 0 0 0 0 0 0 0 0 0 0 PROSTITUTION - PROMOTE 0 0 0 0 0 0 0 0 0 0 0 PUBLIC HEALTH AND SAFETY ORDINANCES 28 56 31 29 63 27 12 21 27 17 311 RECKLESS DRIVING 1 0 2 2 5 2 1 0 0 1 14 ROBBERY - BANK 0 0 0 0 0 1 0 0 1 0 2 ROBBERY - BUSINESS 0 0 0 0 1 0 0 0 1 1 3 ROBBERY - CAR JACKING 1 1 0 0 0 0 0 0 0 0 2 ROBBERY - CONV.STORE 0 0 0 0 0 0 0 0 0 0 0 ROBBERY - HIGHWAY 0 0 1 1 0 0 0 0 0 0 2 ROBBERY - OTHER 1 1 0 0 1 1 1 2 2 1 10 ROBBERY - RESIDENCE 1 0 0 0 0 0 0 0 0 0 1 ROBBERY - SERVICE STATION 0 0 0 0 0 0 0 0 0 0 0 RUNAWAY 17 2 5 11 8 11 5 7 12 8 86 SEX CRIME - CONTRIBUTE TO SEX DELINQUENCY 0 1 0 0 0 0 0 0 0 0 1 SEX CRIME - EXPOSER 1 0 0 0 0 0 1 0 0 0 2 SEX CRIME - FORCIBLE SODOMY 1 0 0 1 1 0 1 0 0 0 4 SEX CRIME - INCEST 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - MOLEST (PHYSICAL) 0 2 4 3 3 1 3 3 1 1 21 SEX CRIME - NON FORCE SODOMY 0 0 0 0 0 0 0 0 0 0 0 40 '" .......' wooaourn POllee uep~, I nUL v DATE: 11/16/2004 PL6860 TIME: 14:29:09 MONTHLY CRIMINAL OFFENSES FOR JANUARY THRU OCTOBER 2004 LINDAEU OR!#: OR0240500 WPD RESULTS FOR ALL OFFENSES CHARGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT TOTAL -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- -------- SEX CRIME - NON-FORCE RAPE 0 1 1 1 0 1 1 0 1 1 7 SEX CRIME - OBSCENE PHONE CALL 0 0 0 0 1 0 0 0 0 1 2 SEX CRIME - OTHER 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - PEEPING TOM 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - PORNOGRAPHY/OBSCENE MATERIAL 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - SEXUAL ASSAULT WITH AN 08JECT 0 0 0 0 0 0 0 0 0 0 0 STALKER 0 0 1 0 0 0 0 1 0 1 3 STOLEN PROPERTY - RECEIVING.BUYING,POSSESSING 0 0 1 1 2 1 0 4 2 1 12 SU IC IDE 1 0 0 0 0 0 2 0 2 0 5 THEFT - 8ICYCLE 2 1 4 6 4 3 7 7 6 4 44 THEFT - BUILDING 7 3 7 3 3 7 3 5 1 1 40 THEFT - COIN OP MACHINE 0 0 0 0 0 0 0 0 0 1 1 THEFT - FROM MOTOR VEHICLE 30 31 34 39 28 23 20 26 21 13 265 THEFT - MOTOR VEHICLE PARTS/ACCESSORIES 1 0 1 1 3 3 3 1 2 6 21 THEFT - OTHER 11 14 14 28 21 25 15 23 13 20 184 THEFT - PICKPOCKET 0 0 0 0 1 0 0 0 0 0 1 THEFT - PURSE SNATCH 1 0 1 2 3 0 1 0 1 0 9 THEFT - SHOPLIFT 15 14 18 12 11 13 6 2 10 9 110 TRAFFIC ORDINANCES 61 53 73 20 19 21 14 0 3 1 265 TRAFFIC VIOLATIONS 37 37 14 1 2 4 8 11 4 7 125 TRESPASS 6 3 5 6 6 3 6 6 7 8 56 UNKNOWN 0 0 0 0 0 0 0 0 0 0 0 VANDALISM 29 33 49 76 26 36 24 36 34 31 374 VEHICLE RECOVERD FOR OTHER AGENCY 3 3 4 2 4 2 4 2 5 2 31 WARRANT ARREST FOR OUR AGENCY 1 1 1 0 1 4 1 1 1 1 12 WEAPON - CARRY CONCEALED 0 1 4 4 2 2 2 0 1 1 17 WEAPON - EX FELON IN POSSESSION 0 1 0 0 0 0 0 0 0 0 1 WEAPON - OTHER 0 0 0 0 0 0 0 0 0 0 0 WEAPON - POSSESS ILLEGAL 1 3 0 0 0 0 0 2 1 0 7 WEAPON - SHOOTING IN PROHIBITED AREA 0 0 0 0 0 0 0 0 0 1 1 WILLFUL MURDER 0 0 0 0 0 0 0 0 0 0 0 ZONING ORDINANCE 11 4 8 7 5 6 5 2 3 2 53 --- - --- ----.- -- - - - ---- - - ---- - - - - -- - -------- - -- -- - ----------- - --- ----- - -- - -.- -- - - --- TOTAL: 541 544 581 496 497 445 359 410 391 316 4580 --- ------ -- - -------- -- - - -- --- -- - --- - - -- - ------.--- -- - - -- -- -- ------- -- -- - - -- -. --- - - -- --- -- - - -_.- -- - - -- - - --- ----- - - --- --- --- -- - --- -- -- 2004 TOTAL: 541 544 581 496 497 445 359 410 391 316 0 0 4580 2003 TOTAL: 520 360 437 459 567 570 470 542 523 678 0 0 5126 2002 TOTAL: 1 0 0 0 0 0 0 1 0 0 0 0 2 41 T .. ...- 9" woooourn POllee uept. rM\JL DATE: 11/16/2004 PL6850 TIME: 14:28:41 MONTHLY ARRESTS BY OFFENSE FOR JANUARY THRU OCTOBER 2004 LINDAEU ORI#: OR0240500 WPQ RESULTS FOR ALL CHARGES CHARGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT TOTAL -----._-------------------------------------------------------------------------------------------------------------------- --------- AGGRAVATED ASSAULT 0 0 0 3 1 1 8 1 0 1 15 AGGRAVATED MURDER 0 0 0 0 0 0 0 0 0 0 0 ANIMAL ORDINANCES 0 0 0 0 0 0 1 0 0 0 1 ARSON 0 0 0 0 1 1 0 0 0 0 2 ASSAULT SIMPLE 10 3 14 B 7 14 14 14 12 23 119 ATTEMPTED MURDER 0 0 0 0 0 0 1 0 0 0 1 BOMB THREAT 0 0 0 0 0 0 0 0 0 0 0 BURGLARY - BUSINESS 0 1 0 0 5 0 0 7 1 0 14 BURGLARY - OTHER STRUCTURE 0 0 1 0 0 0 0 1 0 1 3 BURGLARY - RESIDENCE 0 3 0 2 1 0 1 12 0 1 20 CHILD ADBANDOMENT 0 0 0 1 0 0 0 0 0 0 1 CHILD NEGLECT 0 0 0 0 0 0 2 0 0 0 2 CITY ORDINANCE 0 0 0 2 0 1 1 0 0 0 4 CRIME DAMAGE-NO VANDALISM OR ARSON 6 3 1 3 10 2 1 0 2 0 28 CURFEW 4 2 0 0 3 9 0 0 6 2 26 CUSTODIAL INTERFERENCE 0 0 0 0 0 0 0 0 0 0 0 CUSTODY - DETOX 2 2 3 3 4 5 6 1 2 1 29 CUSTODY - MENTAL 0 1 0 1 0 2 0 1 0 1 6 CUSTODY - PROTECITVE 2 0 0 0 0 0 0 0 0 2 4 DISORDERLY CONDUCT 2 9 4 5 5 7 3 1 2 6 44 DOCUMENTATION 0 0 0 0 0 0 0 0 0 0 0 DRINKING IN PUBLIC 0 0 0 0 1 1 1 1 0 0 4 DRIVING UNDER INFLUENCE 8 12 7 10 5 11 5 16 17 12 103 DRUG LAW VIOLATIONS 30 3 12 19 23 18 14 12 9 12 152 DRUG PARAPHERNALIA 0 0 0 0 0 0 0 0 0 0 0 DWS/REVOKED - FELONY 0 0 0 0 0 0 0 0 0 0 0 DWS/REVOKED-MISDEMEANOR 7 9 3 1 5 2 1 7 3 7 45 ELUDE 0 0 1 1 1 2 2 0 1 0 8 EMBEZZLEMENT 0 0 0 0 0 0 0 0 0 0 0 ESCAPE FROM YOUR CUSTODY 0 0 0 0 0 0 0 0 1 0 1 EXTORTION/BLACKMAIL 0 0 0 0 0 0 0 0 0 0 0 FAIL TO DISPLAY OPERATORS LICENSE 6 5 5 3 2 2 2 2 1 2 30 FAMILY-OTHER 0 0 0 0 0 0 0 0 0 0 0 FORCIBLE RAPE 0 0 0 0 0 0 0 0 0 0 0 FORGERY/COUNTERFEITING 4 0 10 4 5 8 1 4 6 1 43 FRAUD - ACCOUNT CLOSED CHECK 0 0 2 0 0 0 0 0 0 0 2 FRAUD - BY DECEPTION/FALSE PRETENSES 0 1 1 0 0 0 0 0 1 0 3 FRAUD - CREDIT CARD/AUTOMATIC TELLER MACHINE 0 1 0 0 0 0 0 1 0 0 2 FRAUD - IMPERSONATION 0 4 3 0 0 0 0 2 0 0 9 FRAUD - NOT SUFFICIENT FUNDS CHECK 0 0 0 0 0 0 0 0 0 0 0 FRAUD - OF SERVICES/FALSE PRETENSES 0 0 0 0 {) 0 0 0 0 0 0 FRAUD-OTHER 0 0 0 0 0 1 0 0 0 0 1 FUGITIVE ARREST FOR ANOTHER AGENCY 32 34 36 31 40 55 42 36 33 24 363 FURNISHING 0 0 0 0 0 1 0 4 0 0 5 GAMBLING - GAMES 0 0 0 0 0 0 0 0 0 0 0 GAMBLING - OTHER 0 0 0 0 0 0 0 0 0 0 0 GARBAGE LITTERING 0 0 0 1 0 0 0 0 0 0 1 HIT AND RUN FELONY 0 1 2 0 1 0 0 0 0 1 5 HIT AND RUN-MISDEMEANOR 2 2 2 0 1 2 1 2 1 2 15 ILLEGAL ALIEN - INS HOLD 0 0 0 1 1 1 0 1 1 0 5 INTIMIDATION /OTHER CRIMINAL THREAT 4 1 1 1 2 4 8 6 6 3 36 KIDNAP - FOR ADDITIONAL CRIMINAL PURPOSE 0 0 0 0 0 0 3 0 0 0 3 42 WOOQDUrn ~OllCe UepL. rMl.JL <- DATE: 11/16/2004 PL6850 TIME: 14:28:41 MONTHLY ARRESTS BY OFFENSE FOR JANUARY THRU OCTOBER 2004 LINDAEU ORI#: OR0240500 WPD RESULTS FOR ALL CHARGES CHARGE DESCRIPTION JAN FEB MAR APR MAY JUN JLY AUG SEP OCT TOTAL ---.---------------------------------------------.----------------------------------------.--------------------.---------._--------- KIDNAP - FOR RANSOM 0 0 0 0 0 0 0 0 0 0 0 KIDNAP - HI-JACK. TERRORIST 0 0 0 0 0 0 0 1 0 0 1 KIDNAP - HOSTAGE/SHIELD OR REMOVAL/DELAY WITNESS 0 0 0 0 0 0 0 0 0 0 0 LICENSING ORDINANCES 0 0 0 0 0 0 0 0 0 0 0 LIQUOR LAW-OTHER 0 0 0 0 0 0 0 0 0 0 0 MINOR IN POSSESSION 5 4 4 8 6 8 4 4 2 4 49 MINOR ON PREMISES 0 0 0 0 0 0 0 0 0 0 0 MISCELLANEOUS 0 0 0 0 0 0 0 0 0 0 0 MOTOR VEHICLE THEFT 1 4 2 6 0 0 1 2 4 0 20 NEGLIGENT HOMICIDE - TRAFFIC 0 0 0 0 0 0 0 0 0 0 0 NEGLIGENT MANSLAUGHTER 0 0 0 0 0 0 0 0 0 0 0 NON CRIMINAL DOMESTIC DISTURBANCE 0 0 0 0 0 0 0 0 0 0 0 NON SUPPORT 0 0 0 0 0 0 0 0 0 0 0 OTHER 9 13 8 15 7 3 6 4 10 4 79 PROPERTY - FOUND LOST MISLAID 0 0 0 0 0 0 0 0 0 0 0 PROPERTY RECOVER FOR OTHER AGENCY 1 0 0 0 0 0 0 0 0 0 1 PROSTITUTION - COMPEL 0 0 0 0 0 0 0 0 0 0 0 PROSTITUTION - ENGAGE IN 0 0 0 1 0 0 0 0 0 0 1 PROSTITUTION - PROMOTE 0 0 0 0 0 0 0 0 0 0 0 PUBLIC HEALTH AND SAFETY ORDINANCES 0 0 0 0 0 0 0 0 0 0 0 RECKLESS DRIVING 1 0 2 2 4 3 1 0 0 1 14 ROBBERY - BANK 0 0 0 0 0 0 0 0 0 0 0 ROBBERY - BUSINESS 0 0 1 0 1 0 0 0 0 1 3 ROBBERY - CAR JACKING 0 1 0 0 0 0 0 0 0 0 1 ROBBERY - CONV.STORE 0 0 0 0 0 0 0 0 0 0 0 ROBBERY - HIGHWAY 0 0 0 0 0 0 0 0 0 0 0 ROBBERY - OTHER 0 3 0 0 0 0 0 0 0 1 4 ROBBERY - RESIDENCE 0 0 0 0 0 0 0 0 0 0 0 ROBBERY - SERVICE STATION 0 0 0 0 0 0 0 0 0 0 0 RUNAWAY 5 0 5 3 2 2 1 2 2 2 24 SEX CRIME - CONTRIBUTE TO SEX DELINQUENCY 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - EXPOSER 0 0 0 0 0 0 1 0 0 0 1 SEX CRIME - FORCIBLE SODOMY 0 0 0 1 0 0 0 0 1 0 2 SEX CRIME - INCEST 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - MOLEST (PHYSICAL) 0 0 0 0 0 0 0 1 1 0 2 SEX CRIME - NON FORCE SODOMY 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - NON-FORCE RAPE 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - OBSCENE PHONE CALL 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - OTHER 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - PORNOGRAPHY/OBSCENE MATERIAL 0 0 0 0 0 0 0 0 0 0 0 SEX CRIME - SEXUAL ASSAULT WITH AN OBJECT 0 0 0 0 0 0 0 0 0 0 0 STALKER 0 0 0 0 0 0 0 0 0 0 0 STOLEN PROPERTY - RECEIVING. BUYING. POSSESSING 2 4 1 2 3 3 0 3 5 1 24 SUICIDE 0 0 0 0 0 0 0 0 0 0 0 THEFT - BICYCLE 0 0 2 0 0 0 0 0 0 0 2 THEFT - BUILDING 1 3 3 0 5 0 0 0 0 0 12 THEFT - COIN OP MACHINE 0 0 0 0 0 0 0 0 0 0 0 THEFT - FROM MOTOR VEHICLE 3 1 0 2 0 0 1 0 2 0 9 THEFT - MOTOR VEHICLE PARTS/ACCESSORIES 0 0 0 0 0 0 0 0 0 0 0 THEFT - OTHER 4 1 5 1 2 4 2 2 3 1 25 THEFT - PICKPOCKET 0 0 0 0 0 0 0 0 0 0 0 THEFT - PURSE SNATCH 0 0 0 0 0 0 0 0 0 0 0 43 , .. ........ .... WOOODurn ~OllCe uept. rf'\\Jc J DATE: 11/16/2004 PL6850 TIME: 14:28:41 MONTHLY ARRESTS BY OFFENSE FOR JANUARY THRU OCTOBER 2004 LI NDAEU ORI#: OR0240500 WPD RESULTS FOR ALL CHARGES CHARGE DESCRIPTION JAN FEB WlR APR WlY JUN JLY AUG SEP OCT TOTAL --_.-------------------------------------------------------------------------------------------------------------------------------- THEFT - SHOPLIFT 14 14 17 12 11 12 5 5 8 11 109 TRAFFIC ORDINANCES 0 0 0 0 .0 0 0 0 0 0 0 TRAFFIC VIOLATIONS 33 40 32 14 19 22 13 28 34 30 265 TRESPASS 7 3 8 8 8 5 4 6 6 6 61 VANDALISM 1 0 9 16 0 6 3 7 2 5 49 VEHICLE RECOVERD FOR OTHER AGENCY 0 2 0 0 0 1 1 0 0 0 4 WARRANT ARREST FOR OUR AGENCY 1 0 0 0 0 1 0 1 1 1 5 WEAPON - CARRY CONCEALED 0 1 4 4 2 2 1 0 2 1 17 WEAPON - EX FELON IN POSSESSION 0 0 1 0 1 0 1 0 0 0 3 WEAPON - POSSESS ILLEGAL 1 3 0 0 0 0 0 2 0 0 6 WEAPON - SHOOTING IN PROHIBITED AREA 0 0 0 0 0 0 0 0 0 0 0 WILLFUL MURDER 0 0 0 0 0 0 0 0 0 0 0 ZONING ORDINANCE 0 0 0 0 0 0 0 0 0 0 0 ------------------------------------------------------------------------------------------------------------------------------------ 2004 TOTAL: 208 194 212 195 195 222 163 200 188 171 0 0 1948 2003 TOTAL: 202 148 164 190 221 196 230 214 174 196 0 0 1935 2002 TOTAL: 0 0 0 0 0 0 0 0 0 0 0 0 0 44 .. ...' .~' In = I ~ = = ~ ;>0 '- ~ ~ ~ = I ~ = = ~ t ;>0 -; '- ~ u ~ .- - = = C" < e; ';: o e ~ ~ = I. = .Q "0 o o ~ = o <1.1 .- I. = C. e o u ~ = = ~ .. ~ a:: <3 o N ~ '" 8 N ~ ~~~8:1i~ "':r'ocioocirri MOf"l"lNOrr. 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III <ii .'!I '" 8 <ii c v> 0.. v> .. 8 .. c .c c 10 ;> ~ " 0 ~ "0 .c ;;; .8 v> '" '" .9 C "'" c ~ .. .. 0 U E E ~ ~ u ~ E 8."0 .. C C '" ::E ~ <U .. 0 .. r, cjJ -< "" "" U >- .. ..... .~. ~,"~___i"Y~ ,~~~",~r-r ~..d.; WQ.Q~llitN I II .- V r l' " r II ! (d ,,., S -I ~~ SI . . November 1 6, 2004 TO: Honorable Mayor and City Council through City Administrator FROM: Randy Scott, Senior Engineering Technician, through the Public Works Director SUBJECT: Status, Boones Ferry Road/HWY 214 Temporary Signal RECOMMENDATION: It is recommended the City Council receive this report. BACKGROUND AND DISCUSSION: Staff has received final plan approval by Oregon Department of Transportation (OOOT) for the temporary signal. The approved plans have been forwarded to the contractor, Lantz Electric and to ODOT for permit issuance. The contractor is preparing documents required by ODOT for permit issuance. All city required documents for contract issuance have been completed earlier. The ODOT permit is expected to be issued by the 24th of November. The contractor is scheduled to start construction the week of the November 29th, and then has 30 days to complete the work. The construction of the temporary signal device requires removal of existing and installation of new wooden signal poles, installation of new signal heads, relocation of sensor devices, reprogramming of the controller, and re-striping of the southbound turn lanes adjacent to the school to allow for right turn movement. It should be noted that significant improvement to the traffic flow at the intersection will only take place after lane configurations have been completed on Highway 214 and Settlemier in conjunction with the construction of the permanent traffic signal, scheduled to take place by ODOT this next summer. Agenda Item Review: City Administrat City Attorney _ Finane 46 .. "Y" 'I:' (~'\ /\ ~~~~ ~J4 WQQDB~~N 1,1 (ll , I' .' r a 1 (II I X S </ ~~ SJ . . November 19, 2004 TO: Mayor and City Council through City Administrator FROM: David Torgeson, Assistant City Engineer SUBJECT: Highway 214 Sidewalks - Phase 2 RECOMMEN DATION: It is recommended the City Council receive this report. BACKGROUND AND DISCUSSION: City Council approved application for Bicycle Pedestrian Grant at the regular meeting on June 28, 2004. Staff submitted an application on July 1, 2004, requesting $480,500 in grant funds to complete pedestrian walks on the north side of Highway 214, west of (and including) the Front Street Ramp. On October 29, 2004, ODOT informed staff that the application for grant monies had been approved (letter attached). Another separate application has been made for Transportation Enhancement Funds, for completion of sidewalk on the north side of the highway from Ramp to Progress Way (Phase 3). That application will be on the agenda of Mid- Willamette Valley Area Commission on Transportation (MWACT) on December 2, 2004. Stoff is currently soliciting letters of support from community organizations for Phase 3 funding, and will present those letters and other testimony at the MWACT meeting. FINANCIAL IMP ACT: ODOT bicycle pedestrian grants require a local match. The City's match for this grant is $25,000 and will be budgeted in the FY 2005-06 capital budget. Agenda Item Review: City Administra City Attorney _ 47 .. ",""'W' -Oregon October 29, 2004 NOV 0 4 2004 PUBLIC \,A/ORKS Department of Transportation Bicycle & Pedestrian Program RECEIVED 355 Capitol Street NE Room 222 Salem, OR 97301-3871 Telephone (503) 986-3555 FAX (503) 986-3749 Theodore R Kulongoski. Governor " i \ David Torgeson Assistant City Engineer 190 Garfield Street Woodburn, OR 97071 Subject: Your application for a local bicycle/pedestrian project grant Project: Street: Cost: State share: Your share: Other: SidewalkslPed Island Hwy 214 $505550 $480500 $25000 $0 I am pleased to inform you that the Oregon Bicycle and Pedestrian Advisory Committee has approved your request for a $480500 bikeway/walkway grant. You will soon be sent an Intergovernmental Agreement for the project; the lOA will have the following requirements: 1. The first half of the grant $240250 will be available July 1,2005; you must submit a written request for the first half. Design work may begin sooner. 2. A set of plans must be submitted to the Bicycle and Pedestrian Program Office for approval before any construction work begins (and local ODOT office for projects on state highways). The standards of the Oregon Bicycle and Pedestrian Plan should be met. 3. Work should begin by July 1,2006 and be completed October 31, 2007 (a later date may be chosen by mutual agreement). 4. Final payment will be released upon completion of the project and inspection by the Bicycle and Pedestrian Program office or an OOOT representative. Please do not start work on the project until you have received the agreement and all copies have been signed. This process should be completed by June 30 2005. This project will serve local bicyclists and pedestrians well. Please call me if you have any questions. Sincerely, ~~ Michael Ronkin Bicycle and Pedestrian Program Manager Grant Accepted,doc 48 .. "r'r I~-\ /' ~~~ ~~ WQ.Q.Q~VRN I" (.l r J' l' , 11 t (d , '" S <I llA ~~ . . November 22,2004 TO: FROM: Mayor and City Council through ?J ~~ministrator Ben Gillespie, Finance Director,j3JY( SUBJECT: Contingency Transfer-Building Fund RECOMMENDATION: Council adopt the attached resolution making a contingency transfer. BACKGROUND: In the 2004-05 budget the Council approved $21,000 to purchase a replacement vehicle for the Building Division. The City has made a commitment to pursue sustainable practices throughout the organization and to encourage the citizens of Woodburn to do the same. In that light, City staff evaluated hybrid vehicles as a replacement for the Building truck. Hybrids get exceptionally high gas mileage (50 to 60 miles per gallon). This reduces carbon emissions, which in turn improves air quality, slows global warming, and reduces ozone depletion. Hybrids accomplish this using two innovative technologies: batteries provide electric power when the vehicle is not accelerating, and the energy lost to breaking is used to recharge the batteries. The state contract includes Toyota Prius, a leading hybrid, and the model that would suit the City's needs is priced at $21,950. DISCUSSION: The current year prices are $950 (4.5%) more than what is budgeted. Some, but not all, of that difference will be made up in reduced gasoline consumption. The purchase is recommended because it furthers the City's goals of adopting sustainable purchasing practices and setting an example for others in the community FINANCIAL IMPACT: To provide the additional budget, Contingency in the Building Fund is reduced $1.000 leaving a Contingency balance of $335,954. Agenda Item Review: City Administrat City Attorney _ Finane 49 .. .... .~' COUNCIL BILL NO. RESOLUTION NO. A RESOLUTION AUTHORIZING THE TRANSFER OF OPERATING CONTINGENCY APPROPRIATIONS DURING FISCAL YEAR 2004-05. WHEREAS, Oregon Revised Statutes 294.450 allows for the transfer of operating contingency appropriations within a fund to an existing appropriations category within the same fund during the year in which appropriations are made, and WHEREAS, a transfer of Building Inspection Fund operating contingency appropriations is necessary to provide additional capital outlay appropriations during fiscal year 2004-05 for the purchase ofa hybrid (gas/electric) vehicle, now, therefore, THE CITY OF WOODBURN RESOLVES AS FOLLOWS: Section 1. That authorization is hereby given to transfer the following operating contingency appropriations: BUILDING INSPECTION FUND: Transfer From: Operating Contingency ( 123.901.9971.5921) Transfer To: Capital Outlay, New Vehicle (123.521.2241.5642) $ 1,000 $1,000 Approved as to Form: City Attorney Date 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, Recorder City of Woodburn, Oregon Page I - COUNCIL BILL NO. RESOLUTION NO. 50 .. T' Y' The staff report for this item has been given to the City Council under separate cover and is available for review by the public in the City Administrator's office. 51 ~ /~\ ' ~.. ,.+::.-....-,.~~.~.:.\...... ~ .... ~ WQ.Q.QBURN In'orrrr~,(J /889 13A ~~ . . November 22, 2004 TO: Honorable Mayor and City Council through City Administrator Il FROM: Jim Mulder, Director of Community Development/j0r11 SUBJECT: Community Development Director's Approval of ~artition 04-05. 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 17, 2004, the Community Development Director approved a request to partition the subject lot located at 1539 Mt. Hood Avenue into 1wo parcels. Proposed Parcel 1 is approximately 1 acre in area and Parcel 2 is approximately 1 .02 acres in area. The applicant requests partition approval of the subject site so a commercial building can be constructed on the northern parcel in the future. Design review approval would be required for any future development on the subject property. The subject property is 2.02 acres in size and is located at 1539 Mt. Hood Avenue. The property is identified on Marion County Assessor's Maps as Township 5 South, Range 1 West Section 8A Tax Lot 3800. An existing bank (Washington Mutual Savings Bank) and 32 parking spaces are located on the southern portion of the subject site. The northern portion of the subject site is currently vacant. The subject property is zoned Commercial General (CG), designated Commercial on the Comprehensive Plan Map, and the location of a commercial use. The surrounding properties are also zoned CG, designated Commercial on the Comprehensive Plan Map, and the location of commercial uses. The property owner is Pacific First Bank C/O Washington Mutual Savings Bank. The contract purchaser is Northwest Real Estate. Agenda Item Review: City Administrat City Attorney _ Finance 52 , Mayor and City Council November 22, 2004 Page 2 . . DISCUSSION: None. 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It l '" Q.. 9 ::J n I w", 0- iii " :r '0 ,;;. t ~~ 0 i i~ N + i n 1ft [ ~ '-.h ~ <T C 3 b ... 5; .. ....... T Outline of Wood bum Ordinance on Measure 37 . An ordinance is necessary to comply with M 37 and implement it. . Per M 37, this is not a land use ordinance. . If claim for "just compensation" is made under M 37, since public money is involved, city can not pay claim without basis. . If "waiver" of a regulation is considered, the city can not "waive" regulation without a rationale basis. . M 37, with certain exceptions, applies when "land use regulations" are "enacted" or "enforced". . "Enact" has a fairly clear meaning (i.e., pass an ordinance). . "Enforce" does not have an equally clear meeting and it is necessary for the city to define enforcement for purposes of M37. . This will mean that a M37 claimant must follow the city's ordinance requirements or the city takes the position that no enforcement has occurred and M37 is not triggered. .. .T" T (.-'" , ~_.~~~ ",~.'.'n....~. ----~., . ~ '. WQQ.Q!~JJRN {,t.- .' r I' ,1 r 0'1 I C J I ~ S <.} ~~ . . November 22, 2004 TO: Mayor and City Council through City Administrator FROM: N. Robert Shields, City Attorney SUBJECT: Measure 37 Implementation Discussion BACKGROUND: I have previously written the attached legal opinions on Measure 37. I hope that the information contained in those opinions and this memo will provide some foundation for our discussion of the measure. I have also attached a copy of the text of the measure. I would highly encourage you to read it if you haven't already done so. Since passage of the measure, I have encountered many people with strong emotional reactions. However, in order to develop a reasonable implementation policy for the city, it will be necessary for you to objectively consider the terms contained in the measure and then make certain policy choices about how to proceed. While it may not be that easy to read the actual text, it is presently the only resource available. There are no implementing statutes or judicial interpretations. While commentaries concerning the measure are useful, they are really only opinions as to what the text says. Your own informed opinion concerning the actual text of the measure is important. Since passage of the measure, I have made significant efforts to communicate with city and county attorneys concerning their interpretations of the measure and what approach their various jurisdictions will be taking to implement it. This is a continuing and evolving communication effort. However, absent additional legislative guidance, each jurisdiction will have to determine what it will do on an individual basis. To facilitate our discussion of the relevant issues, I have prepared the following framework. Agenda Item Review: City Administrator _ City Attorney _ Finance .. T' T Mayor and City Council November 22, 2004 Page 2 . . Framework for Policy Discussion 1. Public Discussions The Mayor and City Administrator have already expressed a strong preference to conduct discussions concerning Measure 37 in public to the greatest extent possible. Obviously, situations could arise in the future where the City Council needs to discuss litigation related to the measure in a closed session. However, with this exception, the idea is that members of the public need to be aware of what the city is doing and why. 2. Paving Compensation v. Waiver In my extensive discussions with people about this measure, I have encountered some public officials who state that cities and counties do not have the money to pay any Measure 37 claims and that waiver appears to be the only reasonable option. On the other end of the spectrum, some public officials have adamantly told me that they need to find money to pay these claims and preserve the Oregon land use system. I suggest to you that much of this initial reaction is emotional. It is my opinion that claims should be carefully evaluated on a case-by-case basis consistent with the language of the measure itself. While it is prudent to plan ahead for the claims that will be filed, it is dangerous to speculate too much about exactly what will happen. Nobody really knows. It is important that all the city's options should be left open. Prior to getting into more specific topics, I would like to remind you of some apparent anomalies contained in the measure. These were mentioned in my legal opinion and are important. First, although it is written in a rather convoluted way, under the text of the measure, the compensation provision is retroactive to when a "family member" first acquired the property. "Just compensation" is calculated as the amount of reduction in fair market value of the property from the time the family member acquired it until the time the claim is filed with the city. In sharp contract to this, the waiver provision is retroactive only to when the current owner of the property acquired it. This means that, in lieu of paying compensation, the city could "modify, remove or not apply" the land use regulation to "allow the owner to use the property for a use permitted at the time the owner acquired the property". What this may mean, as a practical matter, is that there will be ~ or , Mayor and City Council November 22, 2004 Page 3 . . situations where the City Council will have to choose between the prospect of having a Circuit Court order the city to pay a claimant a large amount of compensation and attorney fees or issuing a waiver of the regulation to the point in time when the owner acquired the property. In some situations, the amount of compensation potentially due could be significant but the corresponding waiver would not change the status quo. Second, under the measure, the waiver of a regulation is only an option for the city during the first 180 days that the city considers the claim. After that 180 period, the claimant has "a cause of action for compensation" in Circuit Court and can also recover its attorney fees. As a practical matter, this means that the waiver issue must be addressed at the City Council level. Once the action proceeds to Circuit Court, the issues to be litigated will be whether the claim falls within the measure and, if it does, the amount of compensation due. 3. Should Woodburn pass a Claims Processing Ordinance? Issue: Measure 37 specifically provides that the city may adopt claims processing procedures. However, the measure also states that "in no event shall these procedures act as a prerequisite to the filing of a compensation claim." Thus, the city is in a position where it can create claim procedures but may not be able to require a claimant to follow them. Pro: Despite the language of the measure, passage of an ordinance will at least provide some mechanism to deal with claims. If the city wants to attempt to recover some of the costs related to processing claims, an ordinance is necessary. Many claimants may voluntarily comply with ordinance requirements so that a waiver can be considered. Salem, Eugene, Bend, Gresham, and Stayton are some cities that are passing claims processing ordinances. Beaverton recently passed such an ordinance with numerous requirements. Con: Some jurisdictions, such as Washington County, have indicated that they may not pass a claims processing ordinance. Their officials have stated that they believe that the 2005 legislature will act to implement Measure 37 and that they have 180 days to decide claims. They said they will probably use a basic claim form and wait for about 60 days before they start processing claims. .. .... , T' Mayor and City Council November 22,2004 Page 4 . . Leqal Recommendation: Pass an ordinance. I believe some ordinances I have seen are better crafted than others. However, an ordinance gives the city a vehicle to use to attempt to evaluate a claim and possible resolve it before it gets to court. 4. If a Claims Processinq Ordinance is passed, should it contain a fee, and in what amount? Issue: It is anticipated that processing claims will be expensive. It will require detailed research into all aspects of property status so that a reasonable decision can be made on compensation or waiver. Fees can be of two types: (A) a "flat fee" of a set amount or (B) a fee requiring the claimant to pay the city's actual cost of processing a claim. Pro: Collection of a fee will recoup at least some of the cost of processing a claim. Otherwise, the public will pay this cost. So far, all jurisdictions I am aware of with a claims processing ordinance, charge some type of a fee. Eugene has an "actual cost" provision. My last information is that Beaverton had not finalized its flat fee amount but that it would probably be from $3000 to $5000. Other flat fees I have found are lower than this amount. Gresham has a flat fee of $1860 plus the cost of the city's appraisal of the property. Some jurisdictions with an "actual cost" provision will require a deposit. Fees imposed are for city costs. Costs incurred by a claimant in submitting a claim (Le., the cost of a required appraisal) are paid directly by the claimant. Con: "Excessive" fee provisions might be seen as aimed at discouraging the presentation of claims. Also, if fees are too high, a claimant may decide to ignore the city claims processing requirements and proceed directly to court. Leqal Recommendation: None. The City Administrator believes fees to recoup the City's actual costs in this regard should be charged. Depending on the actions of the Council's consideration of a claim, this fee could be refundable. In any case, this matter should be decided by the Mayor and Council. 5. If a fee is included in the ordinance, how will it be collected? If the City Council imposes a "flat fee", it would have to be paid in advance or the claim would not be processed. This would mean that claims could end up in Circuit Court without the opportunity for waiver to be considered. .. T. ,. Mayor and City Council November 22, 2004 Page 5 . . If an "actual cost" fee is imposed, the claimant would be sent a bill at the end of the process. If the bill is not paid, collection efforts could be pursued and/or a municipal lien could be imposed on the property. The claimant would probably argue about the city's legal ability to impose a lien. 6. Should the city pass an ordinance containing numerous requirements, like the proposed Beaverton ordinance? Issue: I realize that this is a general question, but I believe it would be helpful to discuss prior to getting into the more specific ordinance provisions. Beaverton's ordinance requires that the claimant essentially complete a land use process. The ordinance contains virtually all of the state mandated requirements for making a quasi-judicial land use decision. This is despite language contained in the measure that states that "in no event shall these procedures act as a prerequisite to the filing of a compensation c1aim....nor shall the failure of the owner of property to file an application for a land use permit with the local government serve as the grounds for dismissal, abatement or delay of a compensation claim." Many ordinances from other jurisdictions contain simpler claim processing requirements oriented towards giving the city the necessary information to evaluate a claim. Pro: A more restrictive ordinance would make claims harder to file. It is also likely that, if a claimant complied with every aspect of the ordinance, the city would ultimately have more information to evaluate the claim. Con: A more restrictive ordinance is likely to lead to claimants merely ignoring the ordinance process and going directly to Circuit Court. This may be more expensive for the city and could deny to city staff and the City Council any meaningful opportunity to address the claim during the 180 day period. Legal Recommendation: I believe that simpler may be better. However, any meaningful claims processing ordinance needs to provide to the city the necessary information to evaluate the claim. Also, I respectfully defer to the judgment of the City Council on this. With some direction, I am capable of drafting a more restrictive or a less restrictive ordinance. 7. Who should administer a claims ordinance? Under many of the proposed ordinances, the Community Development Director acts as the ordinance administrator. In some cities, it is the City Manager or City Administrator. This work will mainly involve processing claims and preparing a " T'. I Mayor and City Council November 22, 2004 Page 6 . . staff report and recommendation for the City Council. Under the terms of the measure, only the governing body that enacted the regulation has the power to waive it. A decision to pay compensation could be made by the City Council itself or delegated to the City Administrator. 8. Should a claims ordinance contain a public hearinq requirement? While the measure itself does not require a public hearing on a claim, there may be a due process requirement to conduct one since discretion is being applied to fundamental property rights. Also, from a purely policy point of view, the City Council may want to include a public hearing requirement in the ordinance. The hearing requirements would not have to follow state land use law and, therefore, could take less time. However, some thought should be given to neighbors of the property and potential third-party claimants. 9. If a public hearing requirement is included in the ordinance, what should be the process? Issue: While it might make sense to simplify the public hearing process, as compared to a land use hearing, some thought should be given as to who should be given notice of the hearing. Many of the proposed ordinances require that notice be given owners of record within 300 or 500 feet of the subject property. Some of the ordinances require that additional notice be given to additional parties such as OLCO. Finally, consideration needs to given as to what type of notice. Notice can be mailed and/or published. Pro: Parties affected by the City Council decision should be allowed to participate in the process and raise any arguments that they have. Con: I do not see one. Leoal Recommendation: I advise you to give affected neighbors a reasonable opportunity to participate in the local claims process. I believe that this opportunity and the possibility of you authorizing a third-party claim (discussed further below) will help protect the city from liability. 10. Should appraisal requirements be contained in the claims ordinance? Issue: Most of the proposed claims ordinances require the claimant to submit an appraisal showing the difference in the property value with and without the regulation. Many, but not all, of the proposed ordinances also give the city the ~ T" t. Mayor and City Council November 22, 2004 Page 7 . . ability to order its own independent appraisal of the property. Some of the ordinances charge the claimant for the cost of the city's appraisal. Pro: An appraisal would seem to be the only reliable way to determine if the property value has been reduced by the regulation. Con: I do not see one. There is always a possibility that the claimant will not want to cooperate with the city in the claims process and instead proceed straight to Circuit Court. However, this is true generally under the measure. Legal Recommendation: Include an appraisal requirement in the ordinance. I can not advise the City Council to pay public funds to compensate a private property owner or to waive an otherwise applicable legal regulation without some reasonable basis. This would have to be in the form of an appraisal. The City Council needs to further discuss how many appraisals should be required and who should pay for them. 11. What other requirements should be contained in the claims ordinance? Most of the proposed ordinances typically require: (A) submission of a fee; (B) completion of a claims form; (C) identification of information on the owner and anyone with an interest in the property; (D) a property description; (E) the names and addresses of property owners within _ feet of the property; (F) a current title report demonstrating all title history; (G) a copy of the current land use regulation that allegedly causes a reduction in fair market value; (H) a copy of the land use regulation in effect when the owner acquired the property; (I) required appraisal; (J) copies of any leases or CC&Rs that impose restrictions on the property use; and (K) the relief the claimant is seeking. I believe that this list closely approximates what the city would need to evaluate a claim. The list is still evolving and is subject to your discussion. 12. Should the ordinance include a process for summary claim denial for use by the city in appropriate cases? Issue: It is possible that many individuals will believe that they have claims under Measure 37 and submit them to the city for disposition. Any claim where a regulation is waived must go to the City Council. Any claim where the city pays compensation must also go to the City Council unless the City Council delegates the ability to pay to the City Administrator. However, through the claims processing ordinance, the City Council could set up a basic procedure to deal with "meritless claims". Some examples of this type of claim would be .. "r' t' Mayor and City Council November 22, 2004 Page 8 . . those filed by ineligible claimants, those that clearly do not involve a land use regulation. Pro: Establishing such a procedure may save money and be reasonable if the city receives a number of meritless claims. Con: Certain individuals will be denied a hearing. Legal Recommendation: None. This matter should be decided by the Mayor and Council. 13. Should the ordinance contain a "completeness" reauirement? Issue: As you are aware, under Oregon land use law, statutory requirements address the "completeness" of an application. The city normally gets 30 days to evaluate completeness and if the city decides that something is missing from a land use application can request the applicant to produce it prior to processing the application. Many of the proposed claims processing ordinances apply this concept to Measure 37 (despite language contained in the measure that a claim decision is not a land use decision) and state that the city will not act on an application until it is "deemed complete." Other ordinances contain more flexible language that states that the city, at its sole discretion, can choose to review and act even if all of the requested information has not been provided. Pro: A strict completeness requirement may result in the claimant producing more information to decide the claim. Con: Since there is no statutory support for a strict completeness requirement, trying to enforce such a requirement may just result in having the city not make a decision in 180 days and ending up in Circuit Court defending against a compensation claim. Leqal Recommendation: I believe that the ordinance should require the needed information to evaluate the claim yet contain a provision allowing the city to review and act on the claim at its sole discretion. 14. Should the ordinance provide for a pre-filinq conference and. if so, should it be mandatory? Issue: Some of the proposed ordinances require that the claimant schedule, attend, pay for, a pre-filing conference prior to filing a Measure 37 claim. This is ~ "F< 1r Mayor and City Council November 22, 2004 Page 9 . . again similar to some existing requirements contained in requirements for land use decisions. Another option would be to have the the claims processing ordinance encourage such a conference but not make it mandatory. Pro: A pre-filing conference would be an opportunity for the city to be aware of and discuss the potential claim. There is a possibility the claim could be resolved. Con: If the pre-filing conference is mandatory, trying to enforce such a requirement may just result in having the city not make a decision in 180 days and ending up in Circuit Court defending against a compensation claim. If the pre-filing conference is encouraged but not required, this problem disappears. Leqal Recommendation: I believe that the City Council should seriously consider a provision in the ordinance encouraging a voluntary pre-filing conference. This may lead to the resolution of some potential claims before they end up in Circuit Court. 15. Should the ordinance provide for a third-party cause of action aqainst the claimants. Issue: This is often explained as the "hog farm" issue, where a Measure 37 claimant who succeeds in getting land use regulations waived allegedly damages the property value of an adjacent owner as a result of the waiver. In order to address this, the ordinance could contain language authorizing a private cause of action by the third-party adjacent owner against the claimant. Pro: This provides a possible means of redress for an allegedly injured third-party and may assist in keeping the city out of middle of the controversy. Con: Since Measure 37 is unclear as to whether the city can create a private cause of action, it is possible that this could work the other way and encourage a lawsuit against the city. Leoal Recommendation: I believe that an Oregon city with a general powers charter has the authority to create a private cause of action. The Oregon Court of Appeals said this fairly recently in Sims v. Besaw's Cafe, 165 Or 180 (2000). Woodburn has a general powers charter and would have this authority. However, it is purely a policy matter as to whether the City Council believes that this is a good idea. 1 ~ .... ' ., Mayor and City Council November 22, 2004 Page 10 . . 16. Should the ordinance state that a "waiver" is personal and does not run with the land? Issue: If the city elects to "waive" a land use regulation instead of pay compensation, there is a question about what the city grants when it issues the waiver. Measure 37 states that "the governing body responsible for enacting the land use regulation may modify, remove, or not apply the land use regulation...to allow the owner to us the property". This language suggests that a waiver is personal to the claimant and does not run with the land. However, this would be hard to administer and there is disagreement about what the legal effect of a waiver should be. Some of the proposed ordinances state that the waiver is a only a license that is personal and does not run with the land. Other ordinances state that a waiver runs with the land and is transferable with the property. Pro: This is what the text of measure seems to say. Con: If waivers are personal and do not run with the land, they will be hard to keep track of. Legal Recommendation: I believe that the text of the measure states that waivers are personal to the owner and do not run with the land. 17. Definition of "enforces a land use regulation" This last topic of discussion is provided as a "place holder" because I am currently working on it. I will try to explain my thoughts to you at the time of the meeting. ~ ,...... MEMORANDUM OPINION NO. 2004-02 TO: Mayor and City Council John Brown, City Administrator FROM: N. Robert Shields, City Attorney DATE: September 24, 2004 RE: Information on Ballot Measure 37 INTRODUCTION Ballot Measure 37 will come before the electorate in November. In many respects it is similar to Ballot Measure 7, an initiative proposed by the voters and passed at the 2000 general election. The Oregon Supreme Court ultimately struck down Ballot Measure 7 because it violated the provision in the Oregon Constitution that prohibits amending multiple, unrelated parts of the Constitution by a single ballot measure. However, this provision is inapplicable to Measure 37 because it is statutory instead of constitutional BASICS OF MEASURE Ballot Measure 37 states that when a public entity "enacts" or "enforces" a land use regulation that restricts the use of property, and has the effect of reducing the value of the property, the public entity must pay the owner compensation equal to the reduction in value. Rather than paying compensation, the public entity may forgo enforcement of the regulation. However, there is no right to compensation if the regulation was enacted before the owner or a "family member" of the owner acquired the property. "Family member" is defined very broadly as spouses, children, parents, certain in-laws, aunts and uncles, nieces and nephews, stepparents, stepchildren, grandparents and grandchildren - or the estates of any of these relatives. Because of this broad definition, compensation could apply to regulations adopted many years ago. INCLUSIONS AND EXCEPTIONS Ballot Measure 37 defines "land use regulations" as: (I) statutes regulating the use of land or any interest in land; (2) LCDC administrative rules and goals; (3) local government comprehensive plans, zoning ordinances, land division ordinances and transportation ordinances; (4) Metro framework plans, functional plans and planning goals and objectives; and statutes and administrative rules governing farming and forest practices. ., ,...". , .. Mayor and City Council John Brown Sept~mber 24,2004 Page 2 Ballot Measure 37 further states that compensation does not apply to: (1) regulations prohibiting activities historically recognized as "nuisances" under common law; (2) public health and safety regulations such as fire and building codes, as well as health, sanitation, solid waste, hazardous waste and pollution control regulations; (3) regulations that are required in order to comply with federal law; (4) regulations prohibiting or restricting pornography or nude dancing; and (5) regulations enacted before the acquisition of the property by the owner or a "family member" . COMPENSA TION UNDER THE MEASURE If the regulation was enacted before the effective date of the Measure, a written demand for compensation must be filed within two years of the effective date of the Measure, or the date that the public entity applies the regulation against the property owner, whichever is later. If the regulation is enacted after the effective date of the Measure, a written demand must be made within two years of the enactment of the regulation, or the date that the public entity applies the regulation against the property owner, whichever is later. Instead of paying compensation, the public entity may elect to "modify, remove or not to apply the land use regulation. . . to allow the owner to use the property for a use permitted at the time the owner acquired the property." The Measure purports to allow the offending regulation to be ignored by the public entity despite the contrary legal requirements contained in other statues. If 180 days after a written demand is made the public entity continues to enforce the regulation against the property, the public entity must pay the property owner an amount equal to the reduction in the fair market value of the property resulting from the enactment or enforcement of the regulation. If the public entity fails to pay, the property owner may sue in Circuit Court for the compensation plus attorney fees, court costs and any other "reasonably incurred" expenses. ApPLICATION OF THE MEASURE If Ballot Measure 37 becomes law it would apply to any regulations within the Woodburn Comprehensive Plan and the Woodburn Development Ordinance (WDO) that "restrict the use of property." Interestingly, "restrict the use of property" is not defined by the Measure. However, almost any regulation within the Comprehensive Plan or WDO could arguably restrict the use of property in some way. The passage of Ballot Measure 37 would change the entire legal landscape of land use regulation and inevitably lead to litigation. Many of the issues that would surface are not even addressed by the Measure. Just some of these issues are: . No process is contained in the Measure as to how a public entity decides when to pay compensation and when to release a property from regulations. ~ ..., y' Mayor and City Council John Brown September 24, 2004 Page 3 . The Measure also does not address whether rezoning property within the City amounts to "enacting" new regulations for that property, or merely applying previously enacted zone restrictions . Measure 37 does not address annexations . The Measure does not specify whether the term "property owner" includes corporate entities cc: Department Heads 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 Attorney 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. ~ _.. w. 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. .. ,.." , 9' 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 3 7 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. " . . ..... . 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. RECOMMEND A 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" Y' Certified by Attorney General on j\prll2~ 2003 RECEIVED '03 APR 22 Prl 1 20 Assistant Attorney General n" r -', ~:. ;:; U ;~y ,., I o ct... ;; ,:BA.llLOT TITLE GOVERNMENTS MUST PAY OWNERS, OR FORGO ENFORCEMENT, WHEN CERTAIN LAND USE RESTRICTIONS REDUCE PROPERTY VALUE RESULT OF "YES" VOTE: "Yes" vote requires that governments pay owners, or forgo enforcement by repealing, changing, not applying restrictions, when certain land use restrictions reduce owners' property value. RESUL T OF "NO" VOTE: ''No'' vote rejects requiring that governments pay owners or forgo enforcement by repealing, changing, not applying restrictions, when certain land use restrictions reduce property value. SUMMARY: Currently, Oregon Constitution requires government(s) to pay owner "just compensation" when condemning private property or taking it by other action, including laws precluding all substantial beneficial or economically viable use. Measure enacts statute requiring that when state, city, county, metropolitan service district enacts or enforces land use regulation that restricts use of private real property or interest thereon, government must pay owner reduction in fair market value of affected property interest, or forgo enforcement. Governments may repeal, change, or not apply restrictions in lieu of payment; if compensation not timely paid, owner not subject to restrictions. Applies to restrictions enacted after "family member" (defined) acquired property. Creates civil right of action including attorney fees. Provides no new revenue source for payments. Certain exceptions. Other provisions. .. ...' , T' The following provisions are added to and made a part ofORS chapter 197: (1) If a public entity enacts or enforces a new land use regulation or enforces a land use regulation enacted prior to the effective date of this amendment that restricts the use of private real property or any interest therein and has the effect of reducing the fair market value of the property, or any interest therein, then the owner of the property shall be paid just compensation. (2) Just compensation shall be equal to the reduction in the fair market value of the affected property interest resulting from enactment or enforcement of the land use regulation as of the date the owner makes written demand for compensation under this act. (3) Subsection (1) of this act shall not apply to land use regulations: (A) Restricting or prohibiting activities commonly and historically recognized as public nuisances under common law. This subsection shall be construed narrowly in favor of a fmding of compensation under this act; (B) Restricting or prohibiting activities for the protection of public health and safety, such as fire and building codes, health and sanitation regulations, solid or hazardous waste regulations, and pollution control regulations; (C) To the extent the land use regulation is required to comply with federal law; (D) Restricting or prohibiting the use of a property for the purpose of selling pornography or performing nude dancing. Nothing in this subsection, however, is intended to affect or alter rights provided by the Oregon or United States Constitutions; or (E) Enacted prior to the date of acquisition of the property by the owner or a family member of the owner who owned the subject property prior to acquisition or inheritance by the owner, whichever occurred first. (4) Just compensation under subsection (1) of this act shall be due the owner of the property if the land use regulation continues to be enforced against the property 180 days after the owner of the property makes written demand for compensation under this section to the public entity enacting or enforcing the land use regulation. (5) For claims arising from land use regulations enacted prior to the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the effective date of this act, or the date the public entity applies the land use regulation as an approval criteria to an application submitted by the owner of the property, whichever is later. For claims arising from land .. "1'" , Y' use regulations enacted after the effective date of this act, written demand for compensation under subsection (4) shall be made within two years of the enactment of the land use regulation, or the date the owner of the property submits a land use application in which the land use regulation is an approval criteria, whichever is later. (6) If a land use regulation continues to apply to the subject property more than 180 days after the present owner of the property has made written demand for compensation under this act, the present owner of the property, or any interest therein, shall have a cause of action for compensation under this act in the circuit court in which the real property is located, and the present owner of the real property shall be entitled to reasonable attorney fees, expenses, costs, and other disbursements reasonably incurred to collect the compensation. (7) A metropolitan service district, city, or county, or state agency may adopt or apply procedures for the processing of claims under this act, but in no event shall these procedures act as a prerequisite to the filing of a compensation claim under subsection (6) of this act, nor shall the failure of an owner of property to file an application for a land use pennit with the local government serve as grounds for dismissal, abatement, or delay of a compensation claim under subsection (6) of this act. (8) Notwithstanding any other state statute or the availability of funds under subsection (10) of this act, in lieu of payment of just compensation under this act, the governing body responsible for enacting the land use regulation may modify, remove, or not to apply the land use regulation or land use regulations to allow the owner to use the property for a use pennitted at the time the owner acquired the property. (9) A decision by a governing body under this act shall not be considered a land use decision as defmed in ORS 197.015(10). (10) Claims made under this section shall be paid from funds, if any, specifically allocated by the legislature, city, county, or metropolitan service district for payment of claims under this act. Notwithstanding the availability of funds under this subsection, a metropolitan service district, city, county, or state agency shall have discretion to use available funds to pay claims or to modify, remove, or not apply a land use regulation or land use regulations pursuant to subsection (6) of this act. If a claim has not been paid within two years from the date on which it accrues, the owner shall be allowed to use the property as permitted at the time the owner acquired the property. (11) Definitions - for purposes of this section: (A) "Family member" shall include the wife, husband, son, daughter, mother, father, brother, brother-in-law, sister, sister-in-law, son-in-law, daughter-in-law, .. -' .. mother-in-law, father-in-law, aunt, uncle, niece, nephew, stepparent, stepchild, grandparent, or grandchild of the owner of the property, an estate of any of the foregoing family members, or a legal entity owned by anyone or combination of these family members or the owner of the property. (B) "Land use regulation" shall include: (i) Any statute regulating the use of land or any interest therein; (ii) Administrative rules and goals of the Land Conservation and Development Commission; (iii) Local government comprehensive plans, zoning ordinances, land division ordinances, and transportation ordinances; (iv) Metropolitan service district regional framework plans, functional plans, planning goals and objectives; and (v) Statutes and administrative rules regulating farming and forest practices. (C) "Owner" is the present owner of the property, or any interest therein. (D) "Public entity" shall include the state, a metropolitan service district, a city,.or a county. (12) The remedy created by this act is in addition to any other remedy under the Oregon or United States Constitutions, and is not intended to modify or replace any other remedy. (13) If any portion or portions of this act are declared invalid by a court of competent jurisdiction, the remaining portions of this act shall remain in full force and effect. . (f) 0 I'l'l W ".~ CD ::3 - =0 . :::0 . , ,- ::D .-- ["1"'1 l-A r ., -c 0 ;:.0.-; >'J fT1 .-<: .,.... C' ;':; -0 < '-n r;.'J ::3 rn en c:: 0 -: ~ c...J :l> -< -l c...J I'T1 -c ~ .. .... . y.