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Minutes - 10/14/1996 COUNCIL MEETING MINUTES October 14, 1996 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, OCTOBER 14,1996. CONVENED. The Council met in regular session at 7:00 p.m. with Mayor Kirksey presiding. ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Kirksey Chadwick Figley Hagenauer Jennings Pugh Sifuentez Present Present Present Present Present Present Present Staff Present: City Administrator Childs, City Attorney Shields, Public Works Director Tiwari, Police Chief Wright, Community Development Director Goeckritz, Finance Director Gillespie, Park & Recreation Director Holly, Public Works Manager Rohman, City Recorder Tennant 0004 EXECUTIVE SESSION. JENNINGS/PUGH.... adjourn to executive session 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 under the authority of ORS 192.660(1)(h). The motion passed unanimously. 0016 Bill Kloos, Attorney representing Mar-Dene Corp. (owner of Wendy's), stated his objection to the executive session without knowing what the content of information was to be discussed. From their point of view, there is no statutory basis for having an executive session in respect to the Wendy's land use issue. If the scope of the discussion within executive session is limited to the current Circuit Court proceeding relating to Wendy's, then the executive session is okay but if the scope of executive session discussion pertains to the current land use issue then those discussions are not allowed under state law. He also stated that there are provisions within the law that pertain to a complaint procedure. His client decided to not to pursue any complaint process when the Planning Commission held their executive sessions, however, he will be consulting with his client to determine if they will proceed with a complaint. He reiterated his need to make this objection since he was unable to get clarification from the City's Attorney as to the scope of the discussion. Page 1 - Council Meeting Minutes, October 14, 1996 T'~ . ,..,._. ~"..,..-' 11 I COUNCIL MEETING MINUTES October 14, 1996 TAPE READING Mayor Kirksey read the legal authority under which the executive session will be held. The Mayor and Council adjourned to executive session at 7:04 p.m. and reconvened at 7:27 p.m.. 0100 Mayor Kirksey stated that no action would be taken by the Council as a result of the executive session. 0108 MINUTES. Councilor Jennings stated that the minutes of September 23, 1996, top of page 3, needs to be corrected to read "Senior Estates Golf & Country Club" rather than "Senior Estates Homeowners Association" . JENNINGS/PUGH.... approve the Council minutes of September 23, 1996 as corrected and the workshop minutes of September 30, 1996; and accept the Planning Commission minutes of September 26, 1996. The motion passed unanimously. 0140 ANNOUNCEMENTS. Mayor Kirksey announced the upcoming meetings/presentation: A) A public hearing before the City Council will be held on Tuesday, October 15, 1996. City Hall Council Chambers, 7:00 p.m., on the Esperanza Court Site Plan; B) A Council workshop with PC Northwest (Human Resource Consultants) will be held on Monday, October 21, 1996,7:00 p.m., in the City Hall Council Chambers; C) A Goal Review Workshop with the City Council. Planning Commission, Recreation & Parks Board, Library Board, and Budget Committee will be held on Monday, November 4, 1996,7:00 p.m., in the City Hall Council Chambers; and D) A Pool Plaque will be dedicated on November 25, 1996,6:00 p.m., at the Aquatic Center. 0154 CHAMBER OF COMMERCE REPORT. Jerri Bosch, representing the Chamber of Commerce, highlighted the following events: (1) Business Showcase will be held on October 24, 1996 at the Woodburn Armory between the hours of 3:00 pm and 6:00 pm. This event is open to the public. (2) The tulip planting project will continue through October 31st. Residents and business owners are encouraged to plant tulip bulbs which will beautify Woodburn in the spring and call attention to the Spring Tulip Festival. 0204 Joan Garren, President of Woodburn Together, updated the Council on their organization's goals for this year along with upcoming events and projects. She stated that, in general, the goals include I) to Normalize Parenting Skills Building, 2) financial commitments to help sponsor community events, and 3) positive recreational activities for the citizens of Woodburn. Woodburn Together is also co-sponsoring the Drug Free Workplace program scheduled for October 25th. Additionally, a parent-party patrol Page 2 - Council Meeting Minutes, October 14, 1996 ~ COUNCIL MEETING MINUTES October 14, 1996 TAPE READING program will be held to make parents aware of the liabilities and repercussions when hosting a party for youth that involve drug or alcohol. The organization will continue to award mini-grants to assist with funding of various programs and encouraged organizations to apply for funding if a program fits into one of the goal categories. She stated that their organization is actively seeking funds for the Glatt House Art Studio addition. The project cost is estimated at $130,000 of which approximately $60,000 has been raised to date. Mayor Kirksey applauded the Woodburn Together Committee for the good work they have done and continue to do within the community. 0305 PUBLIC HEARING --- APPEAL OF INTERPRETATION/POTENTIAL ENFORCEMENT OF ACCESS CONDITIONS OF SITE PLAN APPROVAL #92-12 (HOLIDAY INN EXPRESS). Mayor Kirksey declared the public hearing open at 7:32 p.m.. Attorney Shields explained the legal procedure for this hearing which includes 1) opening the hearing, 2) declaring ex-parte contacts, 3) staff report which includes ORS statement, 4) testimony by Holiday Inn Express, 5) testimony of Mar-Dene Corp., 6) any other public testimony, 7) any consideration of requests to continue or have the record remain open, and 8) close the public hearing and deliberate towards directing staff to present at a future date an ordinance with findings and conclusions. He reminded the Council that this was a de novo hearing and all records introduced will be marked as exhibits. Mayor Kirksey asked the Councilors if they had any ex-parte contacts or if anyone needed to declare a conflict of interest. No one declared a conflict of interest or ex- parte contact. Recorder Tennant read the land use statement as required under ORS Chapter 197. 0500 Community Development Director Goeckritz entered the following into the record: Exhibit #1 - Area Map; Exhibit #2 - Oregon Department of Transportation letter dated November 5, 1991; Exhibit #3 - Access Condition; and Exhibit #4 - Access and Road Improvement Diagram. Director Goeckritz proceeded to review the staff report and provide background information on the Holiday Inn Express development which was initially brought to the City in 1991. During ODOT's review of the proposed development, a letter from ODOT was received by the City regarding the traffic flow onto Highway 214 and ODOT commented on future need of a median unless changes were made After several meetings with ODOT representatives, it was agreed that closure of 1 of the 2 accesses at J's restaurant (now Patterson's), closure of the access point onto Highway 214 at Wendy's, and making a one-way access into Holiday Inn Express/Denny's/Wendy's would be acceptable to the State therefore not requiring the installation of a median on Highway 214. As of this date, changes to the access points have taken place except for Page 3 - Council Meeting Minutes, October 14, 1996 1" ~ 11 J COUNCIL MEETING MINUTES October 14, 1996 TAPE READING Wendy's who continues to use the east access point onto Highway 214. It was noted that one of the conditions in the Planning Commission final order requires the elimination of the driveway access closest to Fairway Plaza with an alternative access accommodated off the Evergreen Road extension which was paid for by Holiday Inn Express in cooperation with Fairway Plaza. As of this date, there is not a median down the middle of Highway 214 however, it is still the prerogative of ODOT to install the median if conditions are not met. However, he stated that he had discussed this issue with ODOT prior to the issuance of the building permit and ODOT not no objections to the issuance of building permit regarding the access condition. The remaining issue in the site plan is the closure of the direct access into Wendy's off of Highway 214 and the new opening onto the private roadway north of Wendy's. Director Goeckritz stated that, within the staff report, the City is looking for voluntary compliance with this one condition of approval imposed by the Planning Commission. 0945 Attorney Shields stated that Staff Exhibit #6 of the Planning Commission record, which has also been entered into this record and certified as part of the Council record, summarized the legal opinion (Memorandum Opinion #96-01) which had been requested by the Planning Commission. Within the opinion, he referred to Section 5 which addresses the following issue remaining on this site plan approval: If the Planning Commission requires Holiday Inn Express to provide a northern driveway for Wendy's (Mar-Dene) onto the Evergreen Road extension, without compensation, this would subject the City to civil liability for an unconstitutional taking of property of Holiday Inn Express property. He stated that, in his opinion, the City is in a position that, if they were to force Holiday Inn to give up there northern access driveway without being paid any compensation by Wendy's, it would subject the city to civil liability. 1117 Don McClain, Attorney representing the owner of Holiday Inn Express (Mr. Jensen), placed into the record a packet of various letters and documents consisting of 21 pages (known as Holiday Inn Express Exhibit 1). He reviewed the action taken by the Jensen's to try and secure a voluntary agreement with Mar-Dene Corp. (Wendy's) but no agreement could be reached which would be fair to all of the parties involved who had already agreed on payment issue. He stated that the owner of J's Restaurant (now Patterson's), along with other benefitted property owners, had voluntarily agreed to pay 1/8th of the cost (approx. $27,000) which is the same amount being asked from Mar- Dene Corp.. Mar-Dene Corp. had only agreed to pay a maximum of $15,000 plus they wanted the project to include a sidewalk which had not been on the proposed plans. Fairway Plaza and Holiday Inn Express each paid a pro-rated share of cost for the extension of Evergreen St and the installation of the traffic signal. As of this date, no curb cut has been made on the private access to the north of Wendy's which is owned by Holiday Inn Express since they have not been willing to pay their share of the costs which had been determined as reasonable costs by all other property owners in the benefitted area. Page 4 - Council Meeting Minutes, October 14, 1996 COUNCIL MEETING MINUTES October 14, 1996 TAPE READING 1435 Bill Kloos, Attorney representing Mar-Dene Corp. (Wendy's), placed into the record a packet of various letters and documents consisting of 14 pages (known as Wendy's Exhibit #1). In his opinion, the City should not be concerned with the negotiations between Holiday Inn Express and Mar-Dene Corp.. The Planning Commission has reviewed the development proposal and identified an access problem at that time. In the original findings and conclusions, the property owners were to have reached an agreement and received prior approval from the City and ODOT on the agreement before a building permit would be issued. Attorney Kloos proceeded to go through a chronological account of the events leading up to this the filing of the lawsuit in Circuit Court in April 1995 and LUBA's remand back to the City in August 1995. Attorney Kloos also objected to Attorney Shields' statement regarding the City's potential liability on this issue. Mr. Kloos stated that Wendy's has made very clear offers to Holiday Inn Express which should not be considered as the Council's problem. The mistake made by staff was in issuing the building permit prior to obtaining an agreement from all parties by Holiday Inn Express. The staff lost its leverage in getting full compliance with a condition of approval once the building and occupancy permits were issued. He also reminded the Council that there is nothing in the Planning Commission documents that require cash compensation to Holiday Inn Express. 2058 Mayor Kirksey reminded the parties that rebuttal statements would be allowed on specific issues brought up during this hearing. Attorney McClain stated that the explanation they have never received from Mar-Dene Corp. is why 3 or 4 neighbors should pay almost double the amount that Mar-Dene Corp. is willing to pay. He stated that patrons of Wendy's are currently using the west side of the driveway to get to Evergreen and that is okay with Holiday Inn Express. He also stated that Mr. Kloos contends that a median is going to happen on Highway 214. Mr. McClain does not feel that the median will be installed and his client hopes to be able to forestall this type of action by ODOT by having all parties comply with the condition originally approved by the Planning Commission. Holiday Inn Express is still willing to allow curb cuts on the north side of Wendy's provided they participate in funding in an amount equal to other owners paying 1I8th share of the costs. 2245 Attorney Kloos stated that the issue is not the details of the negotiations but the fact that the City should not be trying to negotiate for two (2) parties. 2335 Director Goeckritz emphasized the following issues: 1) The City's Transportation Plan which has been adopted identifies that there would be no median strip on Highway 214. He reminded the Council that ODOT participated in the formation of this plan and did not object to the plan document. 2) The development proposal began in 1991 and the condition of approval on the access issue was placed in the Planning Commission's findings to encourage negotiations and Page 5 - Council Meeting Minutes, October 14, 1996 1 -.......,.......-.-'-.....-".-... 11 , ~.--".."..,.--.- COUNCIL MEETING MINUTES October 14, 1996 TAPE READING make things happen. The majority of the participants had agreed to the allocation of costs prior to the issuance of the building permit. 3) It was an administrative decision to issue the building permit in 1993. However, staff did take the issue back to the Planning Commission since he did not feel that the condition was enforceable, therefore, the development could begin along with improvements to the Highway and extension of Evergreen Road. Councilor Jennings questioned a letter received from ODOT dated September 12, 1996 regarding the removal of the diverter at the north end of the entrance driveway to Holiday Inn Express and Denny's Restaurant. Director Goeckritz stated that staff had contacted Holiday Inn Express immediately after receipt of the letter and found out that Holiday Inn Express had removed the barrier. They have since comeback with a landscape design for that driveway entrance which includes a fence and a fence diverter has been placed at the north end of the driveway which would discourage the driveway as an exit point. 2576 Mayor Kirksey closed the public hearing at 8:37 p.m.. Councilor Pugh expressed his opinion that the direction the Planning Commission has taken is the way to go on this issue. Councilor Jennings agreed with Councilor Pugh and stated that he had not seen or heard any evidence to overturn the Planning Commission's decision. Mayor Kirksey expressed her concern on Attorney Kloos's statement regarding the Community Development Director's issuance of the building permit and, in her opinion, he should not take the hit for this issue. Attorney Shields went through the rest of the procedural list that he had provided at the start of the meeting and he did state that neither party (Holiday Inn Express or Mar- Dene Corp.) had made a request for the record to remain open. 2940 JENNINGS/PUGH... find that the City Council finds that it vested with jurisdiction to consider compliance with and the enforcement and/or not enforcement of the access condition before the Council. The issue involves a land use decision is a discretionary determination under the Woodburn Zoning Ordinance as opposed to an administerial decision. The parties have been afforded and have availed themselves of the full quasi- judicial hearing process. That the Council finds based on the findings and conclusions contained in Exhibit A of the Planning Commission which is attached hereto and by this reference incorporated herein, that the access condition originally imposed on Site Plan Review #92-12 has been substantially complied with and the Council based upon those findings and conclusions will take no further action to enforce the access condition originally imposed on Site Plan Review #92-12 as set forth above. On roll call vote, the motion passed unanimously. Page 6 - Council Meeting Minutes, October 14, 1996 y ,. 11 , ...,...-- COUNCIL MEETING MINUTES October 14, 1996 TAPE READING Tape 2 Attorney Shields stated that staff will prepare an ordinance for Council consideration at their next regular meeting at which time the Council will consider a final land use action. The Council took a break between 8:50 pm and 8:55 pm.. 0029 COUNCIL BILL 1751 - ORDINANCE AMENDING ORDINANCE 1638 TO MODIFY THE DEFINITION OF AN ANIMAL RUNNING AT LARGE (3rd Readinl!). Council Bill 1751 which was read by title only since there were no objections by the Council. At the last regular Council meeting, the bill had been read twice but did not receive a unanimous vote from the Council, therefore, it was brought back before the Council at this meeting. On roll call vote, the bill passed by a vote of 5-1 with Councilor Pugh voting nay. As a procedural point, Councilor Jennings questioned the designation of this reading as a "3rd reading". Attorney Shields stated that he would research the Charter provision and report back to the Council. Mayor Kirksey declared Council Bill 1751 duly passed with the emergency clause. 0135 COUNCIL BILL 1753 - RESOLUTION AUTHORIZING INTERDEPARTMENTAL BORROWING OF FUNDS DURING FISCAL YEAR 1996-97. Council Bill 1753 was introduced by Councilor Hagenauer. Recorder Tennant read the bill by title only since there were no objections from the Council. Councilor Pugh referred to a memo he had written in September 1995 on this issue and reiterated that he was uncomfortable in passing this type of Resolution since it places no control on the spending habits of department managers other than providing a bottom line annual appropriations amount. Brief discussion was also held on the net effect of interest earnings to the affected funds. Finance Director Gillespie stated that some funds rely on property tax dollars and/or reimbursement through grant funds as the major revenue source. Since property taxes are not received until November, those funds with a limited cash flow at the beginning of the fiscal year need to borrow funds from other city funds in order to pay incurred expenses. Interest is charged to the borrowing fund so that the lending fund does not suffer a loss in interest revenue it would have normally received if the loan had not been made. Further discussion was held and the Mayor agreed to appoint a Council sub-committee to meet with staff to address this issue. On roll call vote for final passage, the bill passed 5-1 with Councilor Pugh voting nay. Mayor Kirksey declared Council Bill 1753 duly passed. Page 7 - Council Meeting Minutes, October 14, 1996 r __~..__'."_"'" ~__'< m....____ 11 , ..,.......... COUNCIL MEETING MINUTES October 14, 1996 TAPE READING 0420 COUNCIL BILL 1754 - RESOLUTION ESTABLISHING AN APPLICATION FEE FOR AN EXPEDITED LAND DIVISION. Council Bill 1754 was introduced by Councilor Hagenauer. Recorder Tennant read the bill by title only since there were no objections from the Council. Councilor Figley questioned staff on the definition of an expedited land division. Attorney Shields stated that this is a legislative action from the last State legislative session which does not involve a land use and would generally involve a partition or subdivision. An expedited land division is an administrative process that involves no public hearing and appeals are submitted to a referee that is outside the influence of local jurisdiction. Once filed, only property owners within 100 ft of the affected area are notified rather than the 250 ft required for land use issues. The statute provides for fees to be set at an amount to recover full costs. Staff surveyed surrounding communities and had determined that $3,200 would be a fair application fee for this type of process. Following a brief discussion on the proposed application fee, roll call vote was taken with the Councilors voting unanimously in favor of the bill. Mayor Kirksey declared Council Bill 1754 duly passed. 0768 BID AWARD - DATA PROCESSING STRATEGIC PLAN. Proposals for the strategic plan had been reviewed by staff and a recommendation was made to the Council to award the bid to Moss Adams LLP in an amount not to exceed $12,000 which is within the budgeted amount for this project. JENNINGS/FIGLEy.... award the bid for the Data Processing Strategic Plan to Moss Adams in an amount not to exceed $12,000.00. Director Gillespie briefly reviewed the framework in which the plan would be formulated and the final product will give the City a guideline in which to follow over the next 5 years addressing software, hardware, funding, staffing, and training without identifying specific brand-name products to purchase. The motion to award the bid passed unanimously. 0826 LlOUOR LICENSE CHANGE OF OWNERSHIP APPLICATION - PLAYA de ORO. A change of ownership application was submitted by Lincoyan and Alba Cea for their business, Playa de Oro, which was previously owned by Salvador Rodriguez. Staff recommended that the applicants be approved for the transfer of the liquor license with the twelve license restrictions attached and, furthermore, the Council deny the proposed Assistant Manager Bedoya application. Councilor Jennings expressed his concern regarding potential denial of employment rights to an individual, however, after discussing this issue with the Police Chief, he had found that this individual could, after 30 days, take a Server's class then resubmit his application to OLCC. Page 8 - Council Meeting Minutes, October 14, 1996 - ....---------- - - - COUNCIL MEETING MINUTES October 14, 1996 TAPE READING JENNINGS/FIGLEY... recommend to OLCC to approve the application of Lincoyan and Alba Cea for the transfer of the liquor license with the twelve restrictions and deny the proposed Assistant Manager Bedoya application. The motion passed unanimously. 0915 APPROVAL OF CLAIMS. SIFUENTEZ/FIGLEy.... approve claims #33723 - 34048 for the month of September 1996. The motion passed unanimously. 0934 STAFF REPORTS. A) Human Rights Committee -- Based on the information provided in the memo from Chief Wright, JENNINGS/FIGLEY... concur with the Police Chief's request that the sunset clause be extended for six (6) months. Councilor Jennings expressed a desire to give the Committee an opportunity to develop their agenda in concert with the mission and purpose of the Committee and to solicit participation from other community organizations in hope that it will bring a broader representation of community participation. He suggested that the Council consider a one (I) year extension of the sunset clause rather than having the staff come back to the Council after 6 months to request another extension. Councilor Jennings changed his motion to read 1 year and Councilor Figley agreed to the change. The motion passed unanimously. B) League of Oregon Cities Annual Conference Registration Information -- The Annual Conference will be held in Portland, November 15-17, and funds have been budgeted in the Mayor/Council budget for registration and lodging. Councilors interested in attending this year's conference are asked to contact his secretary or himself by November 1st. C) Mayor's Statement on State Prison Construction -- Mayor Kirksey stated that the letter, put together by the Mid-Willamette Valley Mayor's Coalition, has been sent to State Officials opposing the citing of a prison in Marion County. D) Building Activity Report for the month of September 1996 E) Mill Creek Pump Station - Program Status Report -- The electrical upgrade project should be completed by October 25th. Staff also reported that another problem will need to be addressed by next budget year in that the foundation pads supporting the pump have become loosened and further inspections will be necessary to determine the extent of damage and the method to use to fix the problem. Page 9 - Council Meeting Minutes, October 14, 1996 ..' .^..".......'.. ~ .. --~-'....---.,...._~.,.,,--,.........,.......,.-- COUNCIL MEETING MINUTES October 14, 1996 TAPE READING F) Leaf Pick-Up Program -- Public Works Director Tiwari reminded the public that sidewalks and roadways are quite dangerous when leaves are left laying in the roadway and/or on sidewalks especially after it has been raining. Leaves can be disposed of at the Wastewater Treatment Plant between October 28th and December 20th. The street sweeper will be increasing its sweeping rounds in the downtown area and main areas leading to the schools, however, residents are asked not to rake the leaves into the street. It was also noted that leaves plug up the catch basins causing a stormwater problem in the streets. Other options available to the residents include composting on private property, composting at the Marion County land fill site, and the pick-up of bagged leaves by United Disposal as part of the regular garbage service. It was noted that utilizing the land fill site for composting or the garbage service will involve charges to the customer for the service. Tom Waggonner, 849 Woodland, stated that the leaves in Burlingham Park are raked into the ditch which also creates a water problem in that area. Mayor Kirksey stated that staff will look into this situation. 1405 MAYOR AND COUNCIL REPORTS. Councilor Figley thanked the staff for the leaf report. She also complimented the Mayor on the letter sent to local businesses who sell spray paint regarding the possibility of keeping them locked up and out of the hands of minors. Councilor Jennings questioned the status of the gas tax proposal. Director Tiwari stated that an ordinance will be on the agenda for the first meeting in November. Councilor Sifuentez requested that staff contact Marshall Serna regarding the problem he has been experiencing with a dog in his yard. Chief Wright reiterated that the new ordinance requires that all dogs which you own must be on a leash if they are not on your property. Mayor Kirksey informed the Council that she will be excusing herself from sitting on the bench at the public hearing tomorrow night due to a potential conflict of interest. 1593 ADJOURNMENT. JENNINGS/PUGH.... meeting be adjourned. The meeting adjourned at 9:47 p.m.. , APPROVED ~. _ _/l ~-L,~~ NANCY A. KiRi<'SEY, MAYOR / , ATTEST 1^1\ il.~ I~-sf-- Mary Tennant, Recorder City of Woodburn, Oregon Page 10 - Council Meeting Minutes, October 14, 1996 1 '...,.......-.....- 11 I ....,..-.---