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Minutes - 11/22/2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, NOVEMBER 22,2004. CONVENED. The meeting convened at 7:00 p.m. with Mayor Figley presiding. 0130 ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Absent Present Present Present Present Present Staff Present: City Administrator Brown, City Attorney Shields, Public Works Director Tiwari, Police Chief Russell, Community Development Director Mulder, Finance Director Gillespie, Public Works Manager Rohman, Recorder Tennant Mayor Figley stated that Councilor Bjelland was not in attendance since he was out of town. . 0152 ANNOUNCEMENTS. A) 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. B) City Council Special Meeting: The City Council will hold a special meeting on Monday, November 29,2004, 7:00 p.m., in the City Hall Council Chambers. C) Holiday Tree Lighting and Caroling Party: This annual event will begin at 5 :00 p.m. at the Settlemier house followed by a candlelight procession to Warzynski Plaza for the City's Tree Lighting Ceremony. D) Joint Council / Planning Commission Work session will be held on Monday, December 6,2004,6:30 p.m., City Hall Council Chambers, regarding the Transportation System Plan. E) Mayor's Holiday Concert will be held on December 6 and 7,2004 at Woodburn High School. This annual event features local musicians and the performances will begin at 7:00 p.m. each evening. Mayor Figley thanked Councilor Nichols for organizing this year's event. 0152 PRESENTATION: POLICE FACILITY TASK FORCE. Mayor Figley expressed her appreciation to the voters for their approval of the bond measure which had an unofficial vote count of3,278 yes votes to 2,801 no votes. Page 1 - Council Meeting Minutes, November 22, 2004 . . TAPE READING COUNCIL MEETING MINUTES NOVEMBER 22, 2004 On behalf ofthe Police Department, Chief Russell thanked Paul Null, Richard Jennings, Jim Wolf, Herb Mittman, Pete McCallum, Barbara Lucas, Phyllis McKean, Dale Nelson, Lynda Null, Nancy Kirksey, and Jason Tlustywho actively promoted the passage of the general obligation bond measure to build the new police facility. He stated that several of these individuals were members of the initial Task Force to help develop a plan which could be submitted to the Council and then to the voters for funding consideration. With the approval of the measure, he will be asking some Task Force members to continue to assist staff with the final design process. Mayor Figley presented this group of individuals with Certificates of Appreciation. Paul Null thanked not only the members of the Political Action Committee (PAC) but the voters of our community who voted in favor of the tax measure. Roles taken by committee members included filming and production on WCA T (Richard Jennings); fundraising (Nancy Kirksey); research, writing, and printing (Barbara Lucas); letter writing campaign (Phyllis McKean); door to door canvassing (Herb Mittman); treasurer (Dale Nelson); neighborhood watch program meetings (Lynda Null); and lawn sign campaign (Jason Tlusty). Mayor Figley personally thanked former Police Chief Paul Null for his credibility, popularity, and knowledge of what our Police Department needs based on his many years of law enforcement work for the City. She stated that groundbreaking will be done within a few months and it is anticipated that the new facility will be done about 18 months after that event. 0600 CHAMBER OF COMMERCE REPORT. Nick Harville, Chamber Executive Director, updated the Council on the following Chamber goals for the upcoming year: 1) increase membership retention and to acquire new memberships; 2) working in partnership with the cities and businesses in the area, the Chamber will increase their involvement in economic development; 3) conduct focus group discussions with the leading industries in our area; 4) developing divisions of the Chamber so that Hispanic and Russian businesses and their interests are represented with the Chamber; 5) deepen their partnership with the Woodburn Downtown Association (WDA); 6) partner with local organizations for some of the events that are typically sponsored or supported by the Chamber in order to leverage resources for various events; 7) work with Chemeketa's Quality Program to provide hospitality training to front desk / front line workers throughout the Woodburn area; 8) establish efforts to encourage visitors to use Woodburn as a base for day trips to different regional tourist sites. It was noted that Woodburn Company Stores has over 3 million visitors annually and is second only to Spirit Mountain Casino in visitor numbers. 9) continue to publish the local map and tourism information. 0950 CONSENT AGENDA. Page 2 - Council Meeting Minutes, November 22,2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING A) approve the regular and executive session minutes of November 8, 2004; B) accept the Library Board minutes of October 13,2004; C) accept the draft Recreation and Park Board minutes of November 9,2004; D) accept the Planning Commission minutes of October 28, 2004; E) accept the Library Monthly Report for October 2004; F) accept the Claims for October 2004; G) receive the Police Department Statistics Report for October 2004; H) receive the Aquatic Center Revenue Comparison Report; I) receive the Boones Ferry Road / Highway 214 temporary signal status report; and J) receive the Highway 214 Sidewalk Phase 2 report. In regards to item I, Director Tiwari stated that he had received the ODOT permit late this afternoon and the intersection improvement plans for the temporary signal are now on schedule. MCCALLUM/NICHOLS... adopt the consent agenda as presented. The motion passed unanimously. 1083 COUNCIL BILL NO. 2543 - RESOLUTION AUTHORIZING THE TRANSFER OF OPERATING CONTINGENCY APPROPRIATIONS DURING FISCAL YEAR 2004-05. Councilor Sifuentez introduced Council Bill 2543. Recorder Tennant read the bill by title only since there were no objections from the Council. Councilor Lonergan expressed his appreciation to staff for their foresight in looking into the future for vehicle fuel alternatives. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill 2543 duly passed. 1178 DISCUSSION REGARDING MEASURE 37 IMPLEMENTATION. Mayor Figley stated that this statewide measure was approved by the voters on November 2, 2004 and now the Council needs to take some action to deal with this measure before it becomes effective December 2,2004. A memorandum was distributed to the Council prior to the meeting to give the Council general information on the measure and provide an outline of policy issues that need to be addressed by the Council. City Attorney Shields stated that many jurisdictions have either just passed or are in the process of preparing an ordinance for passage prior to the December 2, 2004 effective date of the statewide measure. He stated that his memo was prepared for the purpose of giving the Council an opportunity to discuss the policy and administrative issues. Mayor Figley stated that she would like to have the Council review the points made in the memo first and then the Council can discuss other issues that they feel need to be addressed. 1. Public Discussions - It was the consensus of the Council that the public be included in the discussions relating to Measure 37. Page 3 - Council Meeting Minutes, November 22, 2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING 2. Paying Compensation versus Waiver- Councilor Cox felt that this issue be considered on a case by case basis and the ordinance should give the Council sufficient flexibility to make that determination. Councilor Lonergan questioned what types of claims might be anticipated by the City. Attorney Shields stated that it is unknown as to what types of claims will be filed with the City. He agreed that claims should be considered on a case by case basis and, based on his review and information provided by measure proponents, there is a significant difference between waiver and compensation. For purpose of compensation, it goes back to the original zoning or restrictions on property, back to the family member, which can go back to grandparents. For purpose of waiving or modifying, it will go back to when the present owner acquired the property. Mayor Figley stated that the Planning staff has been researching the City's older ordinances since issues will arise with original zoning at time of purchase years before by a family member and there has now been a change in zoning that would not allow a similar type of land use previously in effect. 3. Should a Claims Processing Ordinance be Passed - Mayor Figley felt that it would be prudent to have an ordinance enacted by the Council that would provide for claims processing. It was the consensus of the Council to have the City Attorney draft an ordinance for consideration. 4. Should a Claims Processing Ordinance, if adopted, contain a fee provision and, if so, for what amount - Mayor Figley expressed her opinion that a fee should be included in the ordinance and the City has a right to recover actual cost which is what is being done in many departments. Councilor Cox felt that setting a fee for actual costs could result in the owners deciding to by-pass the City due to the unknown dollar amount and they will wait and file in Circuit Court. He stated that some individuals will want a waiver in order to build a building on their land that they are not allowed to build now and those individuals will provide the City with a variety of information to convince the City that a waiver should be granted. On the other hand, there will be some individuals who want to be compensated and those are the individuals who will file a claim, wait 180 days, then file a lawsuit in Circuit Court. He felt that the mandatory fee should be low such as $200 and then try to get the individual to supply other documents such as appraisals since his reading of the measure would indicate that a claimant did not need to pay for full actual costs and by requiring a fee for actual costs would make the process more difficult in resolving an issue locally rather than in the courts. He reiterated that he did not feel that the fees charged for this type of claim should be any higher than any other fee the City would collect from any citizen on any other public records request. Councilor Lonergan expressed concern on the amount of time that could be spent on research and felt that a small $200 fee would generate a lot of claims just for the research. Administrator Brown stated that the City has the flexibility to collect fees either up front Page 4 - Council Meeting Minutes, November 22, 2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING or at the end of the process. He agreed with Councilor Cox in that the City should be in a position to try and talk to people during the initial 180 day period but he also wanted to recover the City's cost where someone is being benefitted by the City's actions as a private party which is consistent with all of the City's revenue and budget policies as of this date. He proposed that a fee between $100 and $500 be required up front and then if the claim is found in favor of the claimant, the claimant be refunded the fee. Councilor McCallum expressed his opinion that the City should recover as much as the costs as possible that the City is entitled to and he suggested that a fee be charged up front with actual costs charged at the end of the process. Once a track record has been established, then the Council can re-evaluate the fee schedule. Further discussion was held regarding a potential fee structure that would not cause the claimant to pay a large sum at the time of filing but still provide a mechanism for the City to collect additional fees for research and records provided to the claimant thereby not placing the full burden of the costs onto the taxpayer especially in those cases where the decision results in the City prevailing or the claim has been found without merit. Attorney Shields stated that his memo mentions the possibility of imposing a lien to collect unpaid fees but cautioned the Council that it is questionable if a lien can be filed. He did not put a recommendation in his memo on the lien issue since it is a policy decision by the Council and, until the legislature addresses Measure 37 issues, he expressed his opinion that a nominal fee or deposit be paid when the claim is filed. 3558 Attorney Shields stated that in a local claims process, the Council does need to obtain an independent appraisal and a decision needs to be made by the Council as whether or not the Council will accept the MAl appraisal submitted by claimant or require a second appraisal and if a second appraisal is obtained, if the cost for the appraisal will be borne by the claimant or the City. It was the consensus of the Council that the City would pay for any appraisal that is obtained by the City, however, if the City prevails, then the cost would be borne by the claimant. lfthe claimant prevails, all costs incurred by the City will be borne by the City. Attorney Shields also stated that there is a provision in the measure that would allow the claimant to recover their costs and attorney fees if their claim prevails. 5. Should City ordinance contain numerous requirements similar to the proposed Beaverton ordinance - It was the consensus of the Council to have an ordinance simpler than the Beaverton ordinance. A checklist could be provided to the claimant outlining documents that the City would like to see submitted. 6. Claims Ordinance administration - Councilor Cox suggested that the ordinance be written so that the administrative decisions are made by the City Administrator or his delegate but the ultimate decision as to whether or not claims are paid or denied will belong to the Council. 7. Should the claims ordinance contain a public hearing requirement- It was the consensus of the Council that a public hearing needs to be held, however, the notice does not need to be a lengthy notice with legal descriptions. Property owners Page 5 - Council Meeting Minutes, November 22, 2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING within 500 feet radius ofthe claimant's property would receive a notice in the mail. 8. What other requirements should be included in the claims ordinance - Councilor Cox felt that a majority of the items listed in the memo would already have been obtained or researched by the City in order for the claimant to submit a claim. He reminded the Council that the more roadblocks put into the ordinance as mandatory information to submit a claim will drive people away from the process and they will then wait the 180 days following which they will file in Circuit Court. He felt that encouraging the property owner to submit as much information as possible would be more advantageous than requiring the information. He reiterated that costs incurred by the City would be payable to the City if the City prevails on the claim. Following discussion on this issue, it was a consensus that the claimant file a chain of title that would show the deeds that lead up to the current ownership in addition to an appraisal when a claim is filed if the claim involves family ownerships. 9. Should ordinance include a process for summary claim denial for use by the City in appropriate cases - Councilor Cox expressed his opinion that a summary claim denial should only be exercised by the Council. 10. Should the ordinance contain a completeness requirement- It was the consensus ofthe Council to concur with the City Attorney's recommendation that would require the information needed to evaluate the claim in addition to containing a provision allowing the City to review and act on the claim at its sole discretion. 11. Should the ordinance provide for a pre-filing conference- It was the consensus of the Council to encourage a pre-filing conference involving the Community Development Director or higher. 12. Should the ordinance provide for a third-party cause of action against the claimants - It was the consensus of the Council to include in the ordinance language that would authorize a private cause of action by the third-party adjacent owner against the claimant. 13. Should the ordinance state that a "waiver" is personal and does not run with the land- It was the consensus of the Council that the ordinance should not be more generous than Measure 37 which states that waivers are personal and do not run with the land. 6175 14. Definition of "enforces a land use regulation" -- Attorney Shields distributed an outline for discussion purposes. He stated that the definition for "enact" has a fairly clear meaning in that an ordinance that is passed may have a specific effect on a particular piece of property. On the other hand, there is more debate on the definition of "enforce". He stated that the Council needs to have a rational basis for waiver of a regulation, and if compensation is paid, the Council needs to have a basis as to why the compensation is being paid.. Until the legislature addresses Measure 3 7, the Council may want to consider ordinance language for a non-land use process that would determine whether enforcement should or should not proceed after a claim is filed. He stated that the courts have not addressed this issue as of yet and his interpretation may or may not be what the courts decide. Tape 2 Councilor Cox expressed his views on this subject and stated that Measure 37 applies to a Page 6 - Council Meeting Minutes, November 22,2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING land use decision by a City or governmental agency which enacts or enforces a restriction, on property. In regards to the City's ordinance, he feels that the enactment of a regulation will trigger a claim in most cases since an enactment would provide a property owner with the assumption that the regulation could be enforced if the owner wanted to push the issue. Attorney Shields stated that he did not disagree with Councilor Cox but felt that there could be a valid argument on the other side and, if included in the ordinance, he would at least be able to bring up the argument in Circuit Court as to legally why someone has to go through this process. Councilor Cox suggested that Attorney Shields draft language for the ordinance and then the Council can review, modify or delete the language prior to passage of the ordinance. Discussion was held regarding the time line in which a draft ordinance will be distributed to the Council for the special November 29,2004 Council Meeting. Administrator Brown stated that staff will send out an agenda on Wednesday afternoon, November 24th, but the draft ordinance mayor may not be included. Otherwise, the draft ordinance will be provided to the Council Monday morning in order to give the Council an opportunity to review the draft before the meeting. 0500 Councilor Cox stated that he had received a brochure about a Measure 37 land use seminar to be held on December 2nd and 3rd and he would like to attend this seminar. The fee to attend will be $525 which is more than he would personally pay to attend, however, ifthe City would pay $325 he would be willing to pay $200 in order to attend this seminar. Following his attendance at the seminar, he would report back to the Council on information presented since his primary interest is understanding how Measure 37 will affect the City. LONERGAN/SIFUENTEZ.... authorize the expenditure of$325.00 towards the seminar registration fee for Councilor Cox. The motion passed 4-0-1 with Councilor Cox abstaining. 0716 PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS. A) Community Development Director's Approval of Partition 04-05 located at 1539 Mt. Hood Avenue: Applicant requested partition of a 2.02 acre parcel into two (2) parcels (1 acre and 1.02 acres). The parcels are located in a Commercial General zone with one parcel currently housing the Washington Mutual Savings Bank with 32 parking spaces and the other parcel is currently vacant. No action was taken by the Council to call up this issue for review. 0741 CITY ADMINISTRATOR'S REPORT. A) Administrator Brown stated that the City had requested Congresswoman Hooley to try and obtain some federal money for the new police facility. The initial request was for $1 million which was the maximum request amount through the federal appropriations bill. City staff has been notified that the appropriations bill does provide for $300,000 for Page 7 - Council Meeting Minutes, November 22,2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING police technology in the construction of this facility. He stated that he learned in a recent meeting with the City's Financial Advisors for this bond issue that some items are considered as capital improvements for the purpose of tax exempt bonds and the IRS does not necessarily look at computers and other items not fixed to the wall as being a capital improvement within the context of a tax exempt bond. The federal funding will allow the City to have a tax exempt bond to expend on the rest of the items that it will take to build the facility. Chief Russell stated that he had received a telephone call from Senator Smith's office and the appropriations bill has passed in both the Senate and the House and the bill has been forwarded to the President for signature. B) Bond Issue Financial Advisor meeting update - Administrator Brown stated that staff met with Regional Financial Advisors last week, along with bond counsel from Preston Gates Ellis LLP, and the good news is that the bond market continues to look good. Staff is moving forward on a tax-exempt issue and the Council will be adopting a bond resolution in order to call for the sale of the bonds in the latter part of February or first part of March 2005. During the meeting with the Financial Advisors, he had made a decision on behalf of the Council to move forward with a competitive bond sale rather than a negotiated sale with an underwriter. Staff will also be coming back to the Council with a resolution for an interfund loan so that the City can begin paying the architect for the final design work that needs to be done so that an Invitation to Bid can be prepared in order to move forward with the project. The interfund loan will be refunded through the bond proceeds once they have been received. 1120 MAYOR AND COUNCIL REPORTS. Councilor Lonergan stated that he had received telephone calls over the weekend from disgruntled citizens that are losing garage sale signs. He requested that the Council address this issue in the near future. Councilor McCallum stated that he had recently learned that former Recreation Program Manager Brian Sjothun has been named as the Recreation and Parks Director for the City of Medford, Oregon. Councilor McCallum also stated that the Council had previously asked the Livability Task Force to review the noise ordinance and a meeting will be held on December 2, 2004,7:00 p.m., City Hall Council Chambers, as the date and time to address this issue. The public is invited to attend this meeting. Councilor McCallum reported that the Marion County Public Safety Coordinating Council will be holding a series of breakfast meetings to begin a movement on the methamphetamine situation. This group will be hosting a breakfast for public officials in Salem on December 14,2004 at the Marion County Public Works facility. He will forward information to the Council and staff once it is received to see if anyone would like to attend. Councilors Sifuentez and Cox wished the City employees and the citizens of Woodburn a safe and Happy Thanksgiving. Page 8 - Council Meeting Minutes, November 22, 2004 . . COUNCIL MEETING MINUTES NOVEMBER 22, 2004 TAPE READING Councilor Nichols reminded the public that the Mayor's Christmas Festival Music will be held on December 6th and 7th in the Woodburn High Schoollectorium. Mayor Figley also wished the citizens a Happy Thanksgiving and reminded the public that there will be a lot going on during the holiday season and she looked forward to seeing Woodburn residents at those events. 1373 Mayor Figley stated that there was no need for a Council Executive Session. 1397 ADJOURNMENT. NICHOLS/SIFUENTEZ.... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 8:55 p.m.. ATTEST fl~~ ~ Mary Te ant, Recorder City of Woodburn, Oregon Page 9 - Council Meeting Minutes, November 22, 2004