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Minutes - 11/28/2005 COUNCIL MEETING MINUTES NOVEMBER 28, 2005 TAPE READING 0001 DATE. COUNCIL CHAMBERS, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, NOVEMBER 28,2005. CONVENED. The meeting convened at 7:00 p.m. with Mayor Figley presiding. 0015 ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Present Present Present Present Present Present Staff Present: City Administrator Brown, City Attorney Shields, Public Works Director Tiwari, Police Captain Blevins, Interim Community Development Director Zwerdling, City Recorder Tennant 0050 ANNOUNCEMENTS. A) Holiday Tree Lighting and Coloring Contest will be held on Sunday, December 4, 2005, in the Downtown Plaza. Food items will be sold by local vendors between 12:00 noon and 8:00 p.m. and, beginning at 5:00 p.m., there will be a candlelight procession from Settlemier House to the Downtown Plaza followed by a tree lighting ceremony at the Plaza. Entertainment will include three different cultural dance and singing groups and a posada for children. B) Mayor's Holiday Concert featuring local musicians will be held at Woodburn High School with performances on December 6 and 8, 2005 at 7:00 p.m.. 0160 CONSENT AGENDA. A) approve City Council regular and executive session minutes of November 14, 2005; B) accept the Park and Recreation Board draft minutes of November 8, 2005; C) receive the staff memo on the Planned Demolition of the Water Well building located at the intersection of Hayes and Settlemier; and D) receive the staff memo on urgent repairs to the Sanitary Sewer Manhole located on Highway 214 at Boones Ferry Road. MCCALLUM/NICHOLS... adopt the consent agenda as presented. The motion passed unanimously. Page 1 - Council Meeting Minutes, November 28, 2005 T COUNCIL MEETING MINUTES NOVEMBER 28, 2005 TAPE READING 0213 TABLED BUSINESS: UNION PACIFIC PIPELINE CROSSING AGREEMENT. BJELLAND/LONERGAN... remove from the table. The motion passed unanimously. Councilor Cox stated that the materials in the agenda did not provide any additional information on the status of the title or legal research by the City Attorney. Mayor Figley stated that two deeds relating to the railroad property were obtained by staff and she has reviewed the documents, however, they were not included in the agenda packet since City Attorney Shields just recently returned from vacation and he had not had an opportunity to review the documents until after the agenda was prepared. She stated that the deeds are a fee conveyance and the land was purchased from Mr. & Mrs. Jesse Settlemier and Mr. & Mrs. Ben Brown. Councilor Cox stated that the railroad would not get the benefit of any federal railroad act since the land was not set aside specifically for railroad purposes. Attorney Shields agreed that the deed was a fee title from a private party. He stated that he had spoken with two lawyers today, one of which specializes in condemnation law and the other was a former attorney for the Railroad. Information he received provided him with some general parameters that indicate that it is legally possible to condemn but, as a practical matter, it would be difficult and expensive to take this issue to court. NICHOLS/LONERGAN... authorize City Administrator to execute a Pipeline Crossing Agreement with Union Pacific Railroad as presented. Councilor McCallum noted for the record that PGE and Northwest Natural Gas also enter into license agreements with the railroad. Additionally, it is the present policy of ODOT to also enter into license agreements. He expressed his appreciation to Councilor Cox for raising the issue since it was an educational experience for him. However, he concurred with the staff recommendation to move forward with the agreement. Councilor Cox stated that he strongly opposed the license agreement and the continued usability of the pipeline is dependent upon the pleasure of the Railroad. As a custodian of public funds, he felt that the Railroad should not dictate as to what type of document will be agreed to by the City. He did not agree with the concept that the City should back down just because the Railroad is willing to go through the legal process on their license agreement. He also questioned why the City could not use the existing pipeline for drainage rather than installing another pipe within close proximity of the existing line. He reiterated that he felt that the City should condemn the right-of-way rather than enter into a license agreement, and work should be delayed until such time as these issues are resolved.. Public Works Director Tiwari provided some background history on the expansion of infrastructure lines under the railroad as City growth occurs. Funds for these improvements are, for the most part, generated from system development charges which is to be used for increased capacity. In this case, the new line will increase the storm drain capacity for water flowing from the west to the east reducing the potential for flooding on the west side of the railroad. It was noted that there are detention pond systems in certain areas to store the water during high peak periods so that it can slowly Page 2 - Council Meeting Minutes, November 28, 2005 .. COUNCIL MEETING MINUTES NOVEMBER 28, 2005 TAPE READING move out through the storm drain lines. This particular ditch is the only way that the water will flow since it is a gravity system. Councilor Cox stated that, even though it is an essential project, the Council should not base the project on a privilege that the City has only as long as the Railroad wants it to be there. He did not feel that it was a good policy for the City and, since the City is bisected by the railroad, he did not feel the City should be in a position to accept whatever the Railroad is willing to give the City. He urged the Council to pursue a condemnation case and then let the Court decide. Councilor Bjelland stated that he was interested in knowing what legal costs might be incurred if the City pursues a condemnation case. Attorney Shields stated that it will be difficult to provide a reasonable range of costs. He reminded the Council that his research to date has resulted in cities accepting the Railroad's terms. Councilor Bjelland stated that he would like to know what the range of costs might be from a very straight forward legal process in letting the Judge decide as opposed to appealing the Judge's decision. If the Railroad would lose the case, then the City would most likely go through an appeal since the Railroad would probably not want to change their existing policy and they have the funds to move forward with an appeal. Councilor Nichols withdrew his motion and Councilor Lonergan agreed to withdraw his second to the motion. 1322 NICHOLS/ ... place issue back onto the table and instruct staff to provide a cost estimate in case the Council decides to pursue the condemnation. Discussion was held regarding the types of expenses that would be incurred in the event a legal case is pursued in addition to the time spent by the City Attorney to prepare for the case and appear in court. Councilor Cox stated that more recent information on the title of the property will probably give the City the right to condemn as long as it does not interfere with railroad operations. He felt that it would be beneficial to know the cost for pursuing the condemnation compared to the cost succumbing to the Railroad's policy. Attorney Shields stated that he would be arguing the points brought out in his memo and the City mayor may not prevail. Since it appears that the title is in fee and not a grant from the government, then it is possible to condemn the right-of-way. 1785 In regards to the policy issue, Mayor Figley stated that it would be best to have something perpetual or for a finite period of time but the Railroad has not been easy to work with and they are not willing to make changes in how they operate. There is no guarantee regarding the success of a condemnation case. She felt that the Railroad has as much of a vested interest in maintaining the flow of the water so that it does not impair their railroad operation. Councilor Cox stated that the Railroad should be willing to let the City construct the improvement if it is going to benefit their property without the license agreement and payment of $2,400 by the City. Page 3 - Council Meeting Minutes, November 28, 2005 T COUNCIL MEETING MINUTES NOVEMBER 28, 2005 TAPE READING 2004 Council Lonergan seconded the motion made by Councilor Nichols (see tape reading 1322). Councilor Bjelland requested that stafflook at the step by step process of what would be involved if the Council decided to pursue a condemnation process and the timing involved in relation to when the project needs to be done. Councilor Cox stated that the process involves 1) passage of a Resolution that declares the easement necessary for public purposes and authorize condemnation proceedings, 2) notifying the Railroad and making an offer based on an appraisal, and 3) if the offer is rejected, then start the condemnation lawsuit. He also provided some additional information on procedures followed during a condemnation proceeding through the court process. City Attorney Shields mentioned that ifthere is a jury award, then there is a potential risk that the City might have to pay the other parties attorney fees and costs if the Railroad were to receive more than what the City offered. 2401 On roll call vote, the motion to table passed 4-2 with Councilors McCallum and Cox voting nay. 2475 COUNCIL BILL NO. 2601 - RESOLUTION DECLARING CERTAIN CITY PROPERTY LOCATED AT 491 N. THIRD STREET (FORMER WOODBURN COMMUNITY CENTER) TO BE SURPLUS PROPERTY AND AUTHORIZING THE SALE OF PROPERTY TO MIKKO AABY. Councilor Sifuentez introduced Council Bill 2601. Recorder Tennant read the bill by title only since there were no objections from the Council. On roll call vote for final passage, the bill passed unanimously. Mayor Figley declared Council Bill 2601 duly passed. Councilor Cox stated that he voted in favor of this bill even though it is contrary to his original vote at the last meeting since it accurately sets forth the decision of the majority of the Council. 2575 LIOUOR LICENSE APPLICATION FOR A NEW OUTLET: MAE THAI. 2515 Newbere Hi~hway. Staff recommended that the Council recommend to OLCC that the application be denied since the applicant had applied for a full on-premise sales license, however, the applicant had told the City's investigator that he only wanted a limited license and he would make the change on the license application with OLCC. Captain Blevins stated that the applicant has not made the change with OLCC as of this date and the denial is being recommended since the City has a limited time period in which to act on the initial license application. He also stated that the applicant had been informed by staff that a corrected application would be considered at a future date. Discussion was also held regarding the need for a separate lounge area when a business establishment has a full on-premise sales license. Page 4 - Council Meeting Minutes, November 28, 2005 T COUNCIL MEETING MINUTES NOVEMBER 28, 2005 TAPE READING COX/SIFUENTEZ... follow the staff recommendation to recommend denial to OLCC because of the problems with the application. The motion passed unanimously. 2745 ACCEPTANCE OF PUBLIC WATER MAIN EASEMENT. Staff recommended the acceptance of a water main easement from Falcon Corporation, Inc., which had been conveyed to the City as part of land use condition of approval relating to the construction of a building at 2215 National Way. NICHOLS/MCCALLUM... accept the attached Public Water Main easement as described in Attachment "A" of the staff memo. The motion passed unanimously. 2793 CITY ADMINISTRATOR EMPLOYMENT AGREEMENT. NICHOLS/MCCALLUM... approve and authorize the Mayor to execute the Addendum to the Employment Agreement with John C. Brown. The motion passed unanimously. 2839 PLANNING COMMISSION OR ADMINISTRATIVE LAND USE ACTIONS. A) Community Development Director's approval of Design Review 05-07 (790 Lawson Avenue): Allows for a 642 square foot office tenant space to be converted to a coffee shop. B) Planning Commission's approval of Conditional Use 05-02 and Property Line Adjustment 05-09 (200 North Pacific Highway): Allows for construction of a wrought iron fence surrounding an existing auto dealership (Pacific Auto Sales). No action was taken by the Council to bring these land use actions up for review. 2945 MAYOR AND COUNCIL REPORTS. Councilor Nichols invited the public to join in the Christmas festival activities. He also congratulated the citizens of Woodburn for their calmness and respectfulness to other shoppers on one of the busiest shopping days which was the day after Thanksgiving. Councilor McCallum congratulated Woodburn Company Stores for their magnificient tree. Mayor Figley stated that she hoped to see as many citizens as possible at the Holiday Tree Lighting event on December 4th. She also thanked Councilor Nichols for his work in organizing the Mayor's Holiday Concert. 3075 EXECUTIVE SESSION. Mayor Figley entertained a motion to adjourn into executive session under the authority ofORS 192.660(1)(t) and 192.660(1)(h). She stated that this session was noticed separately since it was determined that there was a need for the session after the agenda had already been distributed. NICHOLS/MCCALLUM... adjourn to executive session under the statutory authority cited by the Mayor. The motion passed unanimously. Page 5 - Council Meeting Minutes, November 28, 2005 f COUNCIL MEETING MINUTES NOVEMBER 28, 2005 TAPE READING The meeting adjourned to executive session at 7:50 p.m. and reconvened at 8:15 p.m.. 3100 Mayor Figley stated that no action was taken by the Council while in executive session. ADJOURNMENT. NICHOLS/MCCALLUM... meeting be adjourned. The motion passed unanimously. The meeting adjourned at 8: 16 p.m.. APPRO ATTEST-JJJT~'~ City of Woodburn, Oregon Page 6 - Council Meeting Minutes, November 28, 2005 f Executive Session COUNCIL MEETING MINUTES November 28, 2005 DATE. CONFERENCE ROOM, CITY HALL, CITY OF WOODBURN, COUNTY OF MARION, STATE OF OREGON, NOVEMBER 28, 2005. CONVENED. The Council met in executive session at 7:53 p.m. with Mayor Figley presiding. ROLL CALL. Mayor Councilor Councilor Councilor Councilor Councilor Councilor Figley Bjelland Cox Lonergan McCallum Nichols Sifuentez Present Present Present Present Present Present Present Staff Present: City Administrator Brown, City Attorney Shields, City Recorder Tennant Mayor Figley reminded the Councilors and staff that information discussed in executive session is not to be discussed with the public. The executive session was called under the following statutory authority: I) 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); and 2) To consider records that are exempt by law from public inspection pursuant to ORS 192.660(1)(t). ADJOURNMENT. The executive session adjourned at 8: 13 p.m.. APPRO /./ ATTEST ~~ Mary enn t, Recorder City of Woodburn, Oregon Page 1 - Executive Session, Council Meeting Minutes, November 28, 2005 T